Explore The NRA Universe Of Websites

The Next Supreme Court, by the Numbers

Friday, February 26, 2016

The Next Supreme Court, by the Numbers

With the passage of Senior Associate Justice of the Supreme Court Antonin Scalia, how will the Court rule on Second Amendment cases in the future? The answer is, “it’s just a matter of simple math.”

In January, when the next president takes office, our eight Supreme Court justices will range in age from 56 to 83, with an average age of 69.

Future appointments to the Court will determine whether Heller is overturned...

Four of the eight—Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas—joined the late Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller (2008), recognizing that the Second Amendment protects an individual right to keep a handgun in the home for protection. They, along with Justice Scalia, also formed the majority in McDonald v. Chicago (2010), which applied Heller to the states.

Justices Stephen Breyer and Ruth Bader Ginsburg, both nominated to the Court by President Bill Clinton, dissented in Heller and McDonald, and Ginsburg has said that Heller should be overturned. The former president of Handgun Control, Inc. (today the Brady Campaign), has produced a Blueprint to do precisely that.

Justice Sonia Sotomayor, appointed by President Barack Obama after Heller, joined Breyer’s dissenting opinion in McDonald, claiming there is “nothing in the Second Amendment’s text, history, or underlying rationale . . . to protect the keeping and bearing of arms for private self-defense purposes.” Justice Elena Kagan, appointed by Obama after Heller and McDonald, was Associate White House Counsel for President Bill Clinton in 1995 and 1996, and assisted his efforts to impose gun control.

With the Court evenly divided on the Second Amendment, future appointments to the Court will determine whether Heller is overturned, limited to nothing more than the possession of a handgun for protection within the home, or expanded to expressly protect the right to keep and bear all arms that are necessary for the entire range of defensive purposes, as the Framers of the Bill of Rights intended.

However, as New York Times Supreme Court correspondent Adam Liptak said last week, even a one-vote shift in the make-up of the Court “would almost certainly reshape American law and American life.” And Liptak quoted several law professors saying essentially the same thing. 

Lee Epstein, of Washington University in St. Louis, said “[a]t-risk precedents . . . include some signature Scalia projects, such as the Second Amendment.” Vikram Amar, of the University of Illinois, said, “[a]dding another justice who has instincts and outlooks similar to those of Justices Ginsburg and Sotomayor could call into question a number of contentious 5 to 4 precedents, (including)  District of Columbia v. Heller.”

Eric J. Segall, of Georgia State University, said a liberal majority “would narrow Heller to the point of irrelevancy.” Tom Ginsburg, of the University of Chicago, said, “the pendulum would swing pretty quickly on gun control. I expect that we’d see a major shift in the kind of gun control laws that get approved by the court. Look for enhanced registration requirements as the first step.” 

Though the media are focusing their attention on the question of appointing a justice to fill Justice Scalia’s seat on the Court, more than a single appointment is at stake in this year’s presidential and U.S. Senate elections. Echoing the assessment of other observers, CBSNews.com said last month, before we lost Justice Scalia, that “[i]n the next few years, the Supreme Court may face as many as four vacancies as some of the justices age or enter retirement. That means the outcome of November’s elections could be critical in determining the court’s future composition.”

"We’d see a major shift in the kind of gun control laws that get approved by the court"
That assessment is premised on a single four-year presidential term, of course. But the last three U.S. presidents, and five of the last seven, have been elected to two terms. Given the ages of the justices currently on the Court, it is conceivable that the next president, over a period of eight years, could appoint a majority of the Court’s nine members.

Given the heated exchanges that have taken place in this year’s presidential debates, it might seem that there isn’t a lot that all of the candidates agree on. And it might thus be inferred that the same thing could be said about the candidates’ advocates. For example, supporters of Sen. Bernie Sanders booed Hillary Clinton after the recent Democrat caucuses in Nevada.

However, there are things upon which all of us who support the Second Amendment can agree. First, Hillary Clinton cannot be given the opportunity to determine the make-up of the Supreme Court, and the same can be said for Bernie Sanders. Regardless of who gets their party’s nomination for president, we must rally on Election Day behind their Republican opponent, whoever he may be. And second, we must vote for a Senate that will approve only those nominees that can be relied upon to read the Constitution in the spirit in which it was written.

When times are tough, as they certainly have been with Barack Obama in the White House, some people succumb to the temptation to dwell upon gloom-and-doom and worst-case scenarios, but this is an election year where gun owners can make all the difference. 

If we succeed on Election Day--if we turn out to vote in unprecedented numbers--we, not our adversaries, will determine the course our country will take in the days, months and years ahead. Bearing in mind that Justice Scalia served 30 years on the Court, and four current justices still have each served over 20 years, a pro-Second Amendment president and Senate could establish a solid pro-Second Amendment majority on the Court for more than a generation to come. Along with popular opinion shifting strongly in favor of gun ownership rights, victory in the upcoming elections could deliver gun control supporters a defeat from which they might never fully recover.  

That would be a victory of which we could be proud, and for which our children and grandchildren would be eternally grateful.

TRENDING NOW
Trump Reinforces Support for the Second Amendment During National AM250 Address

News  

Monday, July 13, 2026

Trump Reinforces Support for the Second Amendment During National AM250 Address

It may not need to be said, but we’ll keep saying it: Donald Trump is the most pro-Second Amendment president in the NRA’s history of protecting the right to keep and bear arms.  While the nation ...

NRA Files Comments in Response to ATF’s Regulatory Reforms, Urges Participation!

News  

Monday, July 13, 2026

NRA Files Comments in Response to ATF’s Regulatory Reforms, Urges Participation!

Last week, NRA filed its first round of comments in response to ATF’s comprehensive regulatory overhaul. NRA’s latest input shows the Association’s efforts coming full circle.

Judge Rules Preliminary Injunction Against Virginia “Assault Firearm” and Magazine Bans Secured by NRA Applies Statewide

Wednesday, July 8, 2026

Judge Rules Preliminary Injunction Against Virginia “Assault Firearm” and Magazine Bans Secured by NRA Applies Statewide

In the NRA’s challenge to Virginia’s “assault firearm” and magazine bans, Santolla v. Katz, Judge Jeffrey L. Campbell of the Washington County Circuit Court issued a letter opinion yesterday making clear that the preliminary injunction ...

U.S. House Passes Legislation to Block Credit Card Gun Registry

News  

Tuesday, July 14, 2026

U.S. House Passes Legislation to Block Credit Card Gun Registry

On July 14, 2026, the U.S. House passed H.R. 1181, the Protecting Privacy in Purchases Act. This important legislation, sponsored by Representative Riley Moore (R-WV-02), would prohibit credit card companies from tracking the purchases of ...

NRA Files Lawsuit Challenging Illinois’s Waiting Period Requirement for Firearm Purchases

Wednesday, July 8, 2026

NRA Files Lawsuit Challenging Illinois’s Waiting Period Requirement for Firearm Purchases

The National Rifle Association filed a lawsuit challenging Illinois’s 72-hour waiting period requirement for firearm purchases.

Make America Beautiful Again Progress Report Reinforces NRA’s Sporting Priorities

News  

Monday, July 13, 2026

Make America Beautiful Again Progress Report Reinforces NRA’s Sporting Priorities

In the continuing celebratory spirit of America’s 250th anniversary, the Trump administration released the 2026 Make America Beautiful Again (MABA) Midterm Report, a progress report  prepared by the MABA Commission to provide updates on conservation-related initiatives ...

Virginia Anti-gun Lawmakers Delay “Assault Firearm” Carry and Transportation Restriction

News  

Monday, July 6, 2026

Virginia Anti-gun Lawmakers Delay “Assault Firearm” Carry and Transportation Restriction

Virginia Governor Abigail Spanberger (D) and the General Assembly’s ruling anti-gun majority have delayed the enactment of one of their most controversial pieces of legislation, a severe restriction on Virginians’ ability to move about the ...

SCOTUS Agrees to Hear Challenges to “Assault Weapon” Bans

Wednesday, July 1, 2026

SCOTUS Agrees to Hear Challenges to “Assault Weapon” Bans

Today, the United States Supreme Court granted certiorari in two cases challenging bans on “assault weapons.”

As the Court Decisions Roll In, Have Gun Controllers Finally Overplayed Their Hand?

News  

Thursday, July 2, 2026

As the Court Decisions Roll In, Have Gun Controllers Finally Overplayed Their Hand?

The final week of June brought a flurry of legal action on various gun control laws in the states.

NRA Files Amicus Brief Urging Sixth Circuit to Strike Down NFA Restrictions on Short-Barreled Rifles

Monday, July 13, 2026

NRA Files Amicus Brief Urging Sixth Circuit to Strike Down NFA Restrictions on Short-Barreled Rifles

Today, the National Rifle Association, joined by the Firearms Policy Coalition, Second Amendment Foundation, and American Suppressor Association, filed an amicus brief in United States v. Machamer, urging the U.S. Court of Appeals for the ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.