Amid all the well-deserved outrage over Donald Trump’s suggestion that “Second Amendment people” might do something about Hillary Clinton, we shouldn’t miss Trump’s other error: He was, once again, fundamentally wrong about the health of gun rights today.
Even taking the GOP nominee at his most benign, his bottom line seemed to be that a President Clinton would pack the high court with activist judges who would cross out the Second Amendment with a swift stroke of the pen.
But this is a political myth ― that’s not how the Supreme Court or constitutional decision-making works.
Still, Trump thought it was a “good thing” for him to peddle the idea that the right to bear arms is under constant threat. “Because it’s going to tell people more about me with respect to the Second Amendment ... because Hillary Clinton wants to essentially abolish the Second Amendment,” he told Fox News on Tuesday evening.
Other conservatives, not to mention the National Rifle Association, trot out the same basic argument. Senate Majority Leader Mitch McConnell (R-Ky.) seems inclined to follow that line. So do the anti-Merrick Garland forces opposing his nomination to the high court ― even though, in reality, President Barack Obama’s nominee has never written a single opinion on the meaning of the Second Amendment.
Here’s the reality, which Trump’s proclamations ignore: In two landmark rulings, handed down in 2008 and 2010, the Supreme Court established that the Constitution protects the right of individual Americans to own a firearm for self-defense purposes. While those two decisions were indeed close, since then all eight members of the current Supreme Court, liberals and conservatives alike, have adhered to them.
The late Justice Antonin Scalia wrote the first of the key rulings, District of Columbia v. Heller ― which the second, McDonald v. Chicago, built on. Heller remains firmly in place today, with the justices refusing dozens of efforts to either constrict or expand what it means.
Only a month after Scalia’s death in February, the Supreme Court again endorsed Heller in a case dealing with the constitutionality of owning stun guns. It declared in no uncertain terms that the Second Amendment covers “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
Talk about a ringing endorsement of a constitutional right.
To be sure, the court since Heller has been extremely reluctant to debate the contours of the Second Amendment. Right before the justices went on summer recess this year, they declined to review a case that upheld a so-called assault weapons ban, which was enacted in the wake of the massacre at Sandy Hook Elementary School and reached the court following the mass shooting at the Orlando gay nightclub.
The justices are surely well aware of the political power of gun rights. But they appear more than comfortable letting lower courts hash out the details for now. That’s basically what the Supreme Court does after it has laid down a landmark decision.
And even if Clinton gets the chance to appoint three justices to the nation’s highest bench, the new members, too, will likely vote to maintain the status quo. That’s how the justices understand their role in preserving and protecting the Constitution. The court doesn’t just overturn precedents, left or right, because a new president or new justices don’t like them.
So Clinton, for her part, may not personally support the way the Supreme Court has interpreted the right to bear arms. And it’s certainly true that the future direction of the court is at stake in this presidential election.
But the Second Amendment isn’t. It has survived 225 years. It will certainly outlive Trump’s doomsaying.
Editor’s note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims ― 1.6 billion members of an entire religion ― from entering the U.S.