By David Codrea
Conservative Supreme Court Justice Antonin Scalia has died. What was a five to four advantage on the High Court for proponents of the Second Amendment is now an even split, and Democrats, always itching to have their way, with “gun control” and a host of other “progressive” agenda items, see a great chance to reverse polarity. So they’re pressuring the Republican-controlled Senate to exercise its Constitutional authority and provide “advice and consent” for Barack Obama’s nominee to replace Scalia.
That’s where we stand at this writing, months before this magazine will land in subscriber mailboxes or on the newsstands. It’s an inherent reality of publishing industry scheduling lead times that important stories break that can’t be ignored, but by the time print copies reach reader eyeballs, circumstances may have changed dramatically. Admittedly, by the time you read this, it may all be a done deal and the issue may be yesterday’s news. That’s a risk those of us without reliable crystal balls sometimes need to take, and fortunately, the gunsmagazine.com website posts “Rights Watch” columns at the time of submission to better disseminate time-sensitive information.
At least for right this minute, I have the benefit of backup for my observations. Case in point; consider what The New York Times, hardly a bastion of “conservative” journalism, had to say as it assessed the “opportunities” that could open up now that the dearly departed is (finally?) out of the way.
“An Obama appointment would be the most consequential ideological shift on the court since 1991, creating a liberal majority that would almost certainly reshape American law and American life,” The Times observed. “[A] court dominated by liberals could reshape Second Amendment rights…”
Yes it could and it would. Which is but one of the reasons why the guy NRA has labeled “The most anti-gun president in American history” can’t wait to get started.
“I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” Barack Obama said in a statement on Scalia’s death. “There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and timely vote.”
To paraphrase Bill Clinton, that depends on what the meaning of the phrase “plenty of time” is. For his part, Republican Senate Majority Leader Mitch McConnell said the vacancy should be filled by the next president. Countering that, Minority Leader Harry Reid declared “The President can and should send the Senate a nominee right away,” and maintained “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”
What’s a Republican to do? It’s a presidential election year. Either way you turn, half the politically-engaged country will be ready to string you up, with the overwhelmingly Democrat media egging things on and hoping to revel in some good beat-downs. And sensing that, Democrats are turning up the rhetoric, starting with Organizing for Action, the supposedly “nonpartisan” entity that evolved and arose from Obama’s election and reelection campaigns, and Organizing for America, a community organizing project of the Democrat National Committee.
“Tell Mitch McConnell and Senate Leaders: Leaving a seat open on the Supreme Court for more than a year while refusing to even consider a nominee is irresponsible,” an OFA mass email soliciting petition signatures urges.
“Knee-jerk obstructionism is nothing new in Congress,” another OFA mass emailing proclaims. “Extreme members have led government shutdowns, held up cabinet and judicial appointments, fought tooth and nail to take away health care from millions of people, or prevented movement on key issues like immigration reform and common-sense gun safety legislation.”
We see where they’re going with this—and the opportunities to cast Republicans in the worst possible light will only increase. True to form, the establishment GOP leadership, notorious for snatching defeat from the jaws of victory, has already shown signs of disunity in the ranks.
North Carolina Sen. Thom Tillis rejected the notion of automatically blocking any nominee, warning “we fall into the trap of being obstructionists.” Senate Judiciary Committee Chairman Chuck Grassley of Iowa said he’s not ready to commit to that, and recommended seeing who a nominee is first. Likewise, Ron Johnson of Wisconsin and Rand Paul of Kentucky have rejected the outright blocking of nominees.
That could lead to an interesting dilemma. What do the Senators do if the nominee is someone they’ve recently already confirmed as legally qualified? One name that’s come up as a potential candidate is current Attorney General Loretta Lynch, who recently defended Obama’s executive actions on guns as being “well within existing legal authorities,” and “consistent with the Constitution as interpreted by the Supreme Court and the laws passed by Congress.” Ten Republicans voted to confirm Lynch as AG, including Majority Leader McConnell, and GOP establishment leaders like Orrin Hatch and Lindsey Graham. How could they now turn around and say the DOJ’s top lawyer isn’t qualified to sit behind the bench?
At some point, whether they allow the pressure to force action now or hold fast and delay the process until after a new president is sworn in, the Senate is going to have to act. When they do, regardless of who wins the White House or who holds the majority, as gun owners and defenders of the Second Amendment, there’s a litmus test we should expect nominees to be able to pass. That means our Senators must only confirm nominees who are acceptable if they want our continued support.
A qualified job applicant (that’s what they are, you know) must agree: that there is an individual right to keep and bear arms; that all Second Amendment cases be considered under strict, rather than intermediate scrutiny, meaning there must not only be a compelling (and Constitutional!) government interest for a law to be upheld, but that it must actually work; that the legal concept “in common use at the time” must, at a minimum, apply to weaponry carried by soldiers for battlefield use, in addition to those commonly used for self-defense and sport, and that it must accommodate technological advancements so that new “arms” usable for those purposes cannot be denied to We the People.
That means any nominee who tries to weasel-word out of an unequivocal answer on a statement of principle fails the test. As does any senator who votes to confirm an artful dodger.
While dealing with the unexpected and staggering loss of Scalia, we can’t lull ourselves into thinking once an acceptable replacement is found our problems will be over. SCOTUS ain’t getting any younger, and other justices have had health scares of their own. What do we do if we suddenly find ourselves with more than one vacancy? What do we do if Hillary wins?
More to the point, what will you do if the worst possible scenario plays out and an anti-gun court, within your lifetime, reverses Heller and more? What will you do if Dianne Feinstein’s “Turn ’em all in, Mr. and Mrs. America” fantasy becomes a court-sanctioned “legal” reality?