Judge Neil Gorsuch has been confirmed as Justice Gorsuch, the 113th person to bear that title in the history of the United States Supreme Court. His road to that appointment was a bumpy one.
Senate Democrats—still angry about the Republican majority’s refusal to even hold hearings for former President Obama’s nominee, Judge Merrick Garland—filibustered Gorsuch’s confirmation vote. Republicans’ efforts to lure eight Senate Democrats into joining the 52 Republicans in ending the filibuster fell far short, making the confirmation impossible absent a drastic move on the part of Senate Majority Leader Mitch McConnell (R-KY).
McConnell made that drastic move, invoking the so-called “nuclear option,” whereby Supreme Court Justice confirmation can no longer be filibustered, and a Justice can thus be confirmed with only 51 votes, rather than 60.
This is an enormous and fundamental change in the way the Senate does business, and indeed could be said to undermine one of the chief features that distinguishes that chamber from the House—the sober, deliberative pace of a body that requires consensus building in order to make such momentous decisions as the appointment of a Supreme Court justice.
Some gun rights advocates seem happy to have made that trade. The NRA, for example, pushed hard for Gorsuch’s confirmation, perhaps harder than can be explained by his judicial history, which contains very little jurisprudence of direct relevance to Second Amendment-related issues.
Still, his supporters argue that his philosophy, in sharing Scalia’s reverence for the original intent of the framers of the Constitution, would be nothing but good news for private gun ownership.
That argument is not without merit, but the fact remains that a Supreme Court featuring Gorsuch as Scalia’s replacement is unlikely to be any better for gun rights than was the Supreme Court prior to Scalia’s death. The current Supreme Court has, since protecting gun ownership rights in Heller in 2008 and McDonald in 2010, refused to hear a considerable number of challenges to draconian gun laws, including bans on so-called “assault weapons” and restrictive and arbitrary “may issue” policies for issuance of concealed carry licenses.
In other words, Gorsuch can, and likely will, protect the status quo with regard to gun rights, but is unlikely to move the ball forward by himself. That will not be in the cards until another justice (one on the farther left end of the bench) is replaced.
That, one could argue, is a reason the end of the filibuster for Supreme Court nominees could be a good thing for private gun ownership, because this Supreme Court appointment, as contentious as it was, in retrospect is likely to appear cordial in comparison to the next one, especially if the next Justice to retire or die is more liberal.
Gorsuch, in replacing the conservative Justice Antonin Scalia, does not represent a real change in the balance of the Court. The story will likely be very different for the next one, if that one occurs during this Administration, and Democrats would be truly desperate to stop it—and with the filibuster now gone, will have no realistic means to do so.
But there is another dynamic at work here, one that should concern gun rights advocates, who know a thing or two about “slippery slopes.” Senate Republicans, after all, were not the first to weaken the filibuster. That was the work of Senate Democrats in 2013, when then-Majority Leader Harry Reid (D-NV) ended the filibuster for all lower-court appointments, leaving it in place only for Supreme Court Justices.
And now the filibuster exists only for votes on legislation itself, and if the nuclear option has been used twice, what is to stop it from being used again, especially as partisan rancor grows and both parties claw for every advantage they can find?
At some point in the perhaps nottoo- distant future, the party with a narrow Senate majority and a bill they desperately want to become law might implement a “nuclear final solution.” This would of course mark a very dangerous new era for gun owners.
In fact it’s not too hard to imagine, in the aftermath of some particularly heinous mass shooting, a Democrat majority Senate, at the urging of a Democrat President, “going nuclear” specifically in order to overcome Republicans’ filibuster of some particularly abominable new gun ban.
Gun rights organizations seem to believe that Gorsuch’s appointment represents a battle won for gun rights. Perhaps that’s the case. But victory in a single battle is of little value if the “victor” is pushed closer to defeat in the war.
And in the end, is the Supreme Court really so central to the war between gun rights and “gun control”? To characterize any Supreme Court appointment as being critically important for gun rights is to concede that these Justices—government officials— are the ultimate arbiters of our rights. It is to say that We the People are not intelligent enough to figure out what our rights are, and must be told by the black-robed high priests and priestesses of justice.
If that is the case, what point is there to the Second Amendment? Its purpose can’t be to protect the people’s means to resist tyranny, if we have already decided we will meekly accept it when these government officials tell us there is no tyranny.
The battle for our rights ends at the Supreme Court only if the citizenry is willing to wait for the government to tell us what our rights are.
On the other hand, if we are still a nation that does not ask the government what those rights are, but tells them, that’s where the battle starts.
