Scalia’s Death Does Not Spell Doom for the Second Amendment


Scalia’s Death Does Not Spell Doom for the Second Amendment

I’m seeing so much doom and gloom on my feeds from gun bloggers who apparently believe that 2A is toast now that the anchor member of the “Heller 5” has gone on to the happy hunting grounds. I read these posts and I have to wonder, how young are all these people?

Heller was the first SCOTUS decision in the history of the republic to clearly affirm that the Second Amendment protects an individual’s right to keep and bear arms (vs. a collective right). Were we living under an Australian-style anti-gun regime before it passed in 2008? Hardly.

Things weren’t exactly rosy. The Clinton-era Assault Weapons Ban was no picnic, but it’s a massive leap from “we lost Scalia and will probably get another liberal on the court” to “Heller is overturned,” and it’s an even more ridiculous leap from there to “the 2A is dead letter.”

As with pot legalization and gay marriage, the fight over gun rights is likely to play out at the state level. As long as congress remains gridlocked, the battle over who can own what types of firearms and under what conditions will continue to be fought in state and local legislative bodies.

Besides, Heller was a pretty narrow and limited win for gun rights advocates. It was certainly helpful with handgun rights and some of the more odious storage requirements that gun control types have advocated, but it’s not like the court declared that everyone has a right to an AR-15 in any configuration they choose.

At any rate, it’s nice to have the individual right interpretation of 2A affirmed by SCOTUS. But we went over 200 years without that, and for the most part we’ve made recent progress at the state and local level while holding off sheer madness at the federal level. I can’t imagine that if they appointed Michael Bloomberg to succeed Scalia it would be end of the Second Amendment, or even close. Congress still has to make laws, and the president still has to sign them, and the states have to actually enforce them.

So everyone calm down and get off the fainting couch.

Besides, my guess is that most of the people croaking about Scalia’s death are, on almost every other issue apart from gun control ordinances, pretty opposed to unelected judges gutting democratically enacted laws.

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Jon Stokes is Deputy Editor at

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