In my previous article (The Most Important Election in Our Lifetimes, and this time I really mean it) I mentioned a few court cases which have a positive impact on gun owners. While not a 2nd Amendment (2A) case, Loper-Bright Enterprises v. Raimondo (2024) was a Supreme Court (SCOTUS) case that overturned a 40-year-old precedent known as “Chevron Deference” (Chevron v. Natural Resources Defense Council Inc. 1984.) In short, Loper-Bright will rein in executive agencies which operated as if they had the power of all three branches of government, which clearly, they do not. Then again, it was a 6-3 decision so maybe the roles of the three separate but equal branches of government aren’t clear to everyone.
According to the Chevron decision, vaguely-written laws weren’t that way because they were poorly written. This was to allow the “experts” to decide what it meant, thus deferring (this is why it was called “Chevron deference”) legislative authority. Likewise, the Chevron decision declared that the Judiciary should also defer to the “experts” as to whether they were operating constitutionally and within the scope of the law. Six people who went to law school thought this was a good idea. I’ll cover Chevron more in-depth down the page.
For a while now we’ve been hearing about how there is a rogue SCOTUS and there needs to be term limits and oversight. Justice Alito’s wife flew the “An Appeal to Heaven” (Pine Tree) Flag that has been flown since the Revolutionary War. Should he recuse himself in certain cases because of it? Justice Thomas has been frequently on the receiving end of hate since his confirmation hearings in 1991. We need to “pack the court” is a common statement when things don’t go the way of a certain groups. Considering that the individuals calling for these changes are all rabidly anti-2A, this tells me SCOTUS is on the right track for the first time in a very long time. By a very long time, I mean since well before I was born.
How did we get here, and how close did we come to being in a far worse place? SCOTUS Justice Antonin Scalia (who was confirmed by the Senate by a 98-0 vote in 1986… my how times have changed) is well known for writing the majority opinion in the landmark DC v. Heller (2008) case. Among other things, Heller affirmed that the Right to Keep and Bear Arms is an individual right (and not a means to arm our military… military being synonymous with armed forces… that have been “armed” since long before black gunpowder was invented.) Heller was a 5-4 decision. Justice Scalia died in 2016. I’m no fan of Senator Mitch McConnell, but as the Senate Majority Leader he did keep us from having Merrick Garland (current Attorney General who called parents who speak in opposition to school policies at school board meetings, “domestic terrorists”) as a SCOTUS Justice.
Back to the question, “How did we get here?” SCOTUS is a separate branch of the government as specified in Article III of the US Constitution. SCOTUS Justices have lifetime appointments because unlike the Executive and Legislative Branches, term limits aren’t specified in the Constitution. The number of SCOTUS Justices is not specified in the Constitution. The number of Justices is set by law and has been nine since 1869.
Franklin D Roosevelt (FDR) tried to “pack the court” in 1937. Many “New Deal” proposals were being declared unconstitutional by SCOTUS. FDR sought to force out SCOTUS Justices over the age of 70 (six of the nine SCOTUS Justices were over 70.) If they wouldn’t resign, an increase of SCOTUS Justices for each Justice over 70 would occur, possibly increasing to 15 Justices. This would allow all of FDR’s New Deal agenda to pass judicial scrutiny. This was overwhelmingly defeated by the Senate (70-20) but in the years 1937-1941 FDR would replace seven SCOTUS Justices. Had FDR lived another year and a half, he’d have replaced all nine SCOTUS Justices. I seriously doubt FDR nominated anyone who would oppose his agenda.
Fast-forward to 1984 and Chevron v. Natural Resources Defense Council Inc (1984.) There was the minimum number of Justices required for a quorum since Thurgood Marshall, William Rehnquist, and Sandra Day-O’Connor were not involved with this case. Byron White had been appointed by President Kennedy. The other five were appointed by Presidents with an “R” after their name. Justice Brennan was appointed by President Eisenhower. Chief Justice Burger, Justices Blackmun and Powell were appointed by President Nixon. Justice Stevens (who also was in the dissent on DC v Heller) was appointed by President Ford. 40 years of bad precedent and five of the six were appointed by Republican Presidents.
By my math it took us over 80 years to get SCOTUS back to a composition that recognizes (in the words of Justice Clarence Thomas) the 2nd Amendment is not a second-class right. SCOTUS Justices are nominated by the President and appointed with the advice and consent of the Senate. Elections do have consequences.
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In Part 2: how SCOTUS Justices on the court for the Chevron decision, and those who replaced them formed the current SCOTUS. How we went from having no 2A cases from 1939 until 2008, and how we finally have a Supreme Court that recognizes and respects the 2nd Amendment.