Guns are the new abortion. During the confirmation battles over Supreme Court nominees in the 1980s and 1990s, it sometimes seemed as if the only relevant question was how the prospective justice would vote on reproductive rights. Would the nominee vote to uphold Roe v. Wade, the controversial decision recognizing the right to choose, or overturn it? Although a Supreme Court justice votes on thousands of different issues, a spectator could be forgiven for suspecting that abortion was the only item on the Supreme Court’s agenda.
In the next confirmation hearings for a Supreme Court nominee, be it Merrick Garland or someone else nominated by a President Hillary Clinton or Donald Trump, guns will likely play the role that abortion used to play. Questions about how the nominee would handle Second Amendment cases are certain to dominate the hearings—even though the next Supreme Court justice is not likely to radically shift constitutional law on questions of gun control.
Guns will be at the forefront of the confirmation hearings because of the Supreme Court’s 2008 decision in District of Columbia v. Heller, the landmark ruling in which the justices, in an opinion written by the now-deceased Antonin Scalia, held for the first time that the Second Amendment guarantees an individual’s right to own guns. Before then, guns were primarily a political issue—one for legislatures to sort out without much judicial oversight. Now guns are also unambiguously a constitutional issue, which means the justices, not elected lawmakers, have the final say.