Elections Have Consequences (Part 2)

As gun owners, we are those who exercise and support the 2nd Amendment (2A.) As gun owners from Indiana, we exercise and support Article I Section 32 of the Indiana Constitution, “The people shall have a right to bear arms, for the defense of themselves and the State.” The Supreme Court Of The United States (SCOTUS) went from 1939 (US v Miller upheld the National Firearms Act of 1934 requiring registration of machine guns and the tax stamp, which doubled the cost of a Thompson sub-machine gun. Miller did set the precedent for firearms lawfully possessed for lawful purposes being protected under 2A) until DC v Heller (2008) with no substantive 2A cases.

Heller was a 5-4 decision. Two of the four in dissent were Republican President appointees. Justice Stevens appointed by President Ford; Justice Souter appointed by President (HW) Bush. It is hard to believe the same individual who appointed Justice Souter, appointed Justice Clarence Thomas.

McDonald v Chicago (2010) affirmed that States had to respect 2A rights as well. It was also a 5-4 decision. Justice Stevens was the only Republican President appointee in dissent.

We went another 12 years after McDonald before a substantive 2A case came up before SCOTUS. New York State Rifle and Pistol Association v. Bruen (2022) was a landmark case and a 6-3 decision. Bruen gave us “text, history, and tradition” as the standard to what was and wasn’t constitutional. As Justice Clarence Thomas wrote in the majority opinion, “The 2nd Amendment is not a second-class right.”

Chevron v. Natural Resources Defense Council Inc. 1984 (referred to as “Chevron Deference” since it set the precedent for the legislative and judicial branches to defer to the “experts” in the executive agencies… and 40 years of a bad precedent.) Also referred to simply as “Chevron”. Two years after Chevron, things started to change on SCOTUS that would lead to where we are today.

So how did we get here? We (as 2nd Amendment, or 2A supporters) have a 6-3 SCOTUS on a good day, 5-4 on a bad day. As much as I miss the days of the Reagan Administration, Justice Scalia was President Reagan’s only solid 2A supporter appointed to SCOTUS, and Justice Scalia started SCOTUS towards where we are today. Justice Day-O’Connor was often “the swing vote” on SCOTUS. Justice Kennedy was the “swing vote” on Heller, he was not always on our side.

President George HW Bush gave us David Souter. He replaced Eisenhower appointee William Brennan who voted in the majority opinion on Chevron (Chevron v. Natural Resources Defense Council Inc. 1984. “Chevron Deference” set the precedent for the legislative and judicial branches to defer to the “experts” in the executive agencies… again 40 years of a bad precedent.) Chevron was overturned by Loper-Bright Enterprises v. Raimondo 2024.

In the card game Blackjack a tie is known as a “push.” Trading Justice Souter for Justice Brennan was a push. Then Bush 41 appointed Clarence Thomas to replace Thurgood Marshall. The confirmation hearings were on a level that we wouldn’t see again until President Trump nominated Brett Kavanaugh. The addition of Justice Thomas to SCOTUS would later turn out to be a major win for 2A supporters.

The two SCOTUS Justices appointed by Bill Clinton (Bader-Ginsburg and Breyer) replaced Kennedy appointee Byron White and Nixon appointee Harry Blackmun. Both Clinton-appointed Justices replaced

Justices who supported Chevron Deference. Both Justices Baser-Ginsburg and Breyer were in dissent on Heller. We’ll call this a push.

George W Bush appointed Chief Justice Roberts and Justice Alito. It is of note they replaced Chief Justice Rehnquist and Justice Day-O’Connor. There was a reason Heller didn’t come up before SCOTUS until both Justices Rehnquist and Day-O’Connor were off the court. Justice Rehnquist replaced Warren Burger as Chief Justice. Justice Burger voted in favor of Chevron; this was still a push. I hold my breath on some of the decisions from Chief Justice Roberts (replaced Justice Rehnquist in 2005,) but he is solid on 2A. Justice Alito is as good on 2A as Justice Thomas. This was a major shift in SCOTUS as to how 2A was viewed by the court.

President Obama appointed Justices Sotomayor and Kagen. They replaced Justices Souter and Stevens who both opposed Heller. Call that a push.

When President Trump was elected, he nominated Neil Gorsuch to replace the late Antonin Scalia. As I said in Part 1, I am no fan of Senator Mitch McConnell, but thanks to him we don’t have Merrick Garland as a SCOTUS Justice. Even with Justice Gorsuch, we were still a shaky 5-4 SCOTUS at this point.

When Justice Kennedy retired, SCOTUS became a much more certain 5-4 when Justice Kavanaugh was appointed. The confirmation hearings for Justice Kavanaugh were worse than the hearings for Clarence Thomas and those hearings in 1991 were very bad.

When Amy Coney-Barrett replaced Ruth Bader-Ginsburg… that was what gave us at least a solid 5-4 (on a good day a 6-3) SCOTUS majority. It was a very good day when NYSRPA v. Bruen was a 6-3 decision. Justice Bader-Ginsburg opposed both Heller and McDonald, Justice Coney-Barrett was in the majority on Bruen. Enough said.

Trading Justice Breyer for Justice Brown-Jackson was a push, except Brown-Jackson is much younger than Justice Breyer

I hate to think where our 2A rights would be if Hillary Clinton had been elected in 2016. Justice Thomas is 76 years old; Justice Alito is 74. Elections do have consequences.

Kelly Myers
ISRPA Government Affairs Co-Director

Elections Have Consequences (Particularly with the Supreme Court) Part 1

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.

Check out your voter information here: https://indianavoters.in.gov/

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.

Kelly Myers
ISRPA Government Affairs Co-Director