The Associated Press published a story yesterday that was picked up by the Seattle Times regarding possible replacements on the Supreme Court for the late Justice Antonin Scalia, whose ruling in the 2008 Heller case was perhaps the most important Second Amendment case of all.
It opened the door for the 2010 McDonald ruling, which further opened the door for other lawsuits challenging onerous gun laws. Replacing Scalia has suddenly become the hottest topic in the current primary election process. Republican Ted Cruz is already talking about the death of the Second Amendment if the wrong person is elected president, and he’s included Donald Trump in that category. Meanwhile, the press is suggesting a possible list of Scalia replacements.
In the mix were Attorney General Loretta Lynch, Homeland Security chief Jeh Johnson, California Attorney General Kamala Harris and Minnesota Sen. Amy Klobuchar. They probably do not measure up to what Justice Scalia stood for, nor is it likely they would meet what he once seemed to establish as the acid test, as quoted by The Daily Caller: “I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25-26 years.”
Noticeably absent from the list are some federal judges who have weighed in importantly on the Second Amendment. For example, there’s Frederick J. Scullin, senior judge on the U.S. District Court for the Northern District of New York. He overturned the ban on concealed carry in Washington, D.C.
Another suggestion would be Judge Richard Posner, serving on the Seventh Circuit Court of Appeals. He wrote the opinion in Moore v. Madigan, the Second Amendment Foundation’s lawsuit that compelled the Illinois Legislature to adopt a concealed carry statute.
“The Second Amendment,” Judge Posner observed, “states in its entirety that ‘a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home. To speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.”
Or how about U.S. District Judge Benson Everett Legg, who noted in his opinion in Woollard v. Sheridan, a case brought by SAF to challenge Maryland’s restrictive concealed carry law, “The Court finds that the right to bear arms is not limited to the home.”
“In addition to self-defense,” Judge Legg also explained, “the (Second Amendment) right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment‘s protections must extend beyond the home: neither hunting nor militia training is a household activity, and ‘self-defense has to take place wherever [a] person happens to be’.”
And there have been some mentions on social media about Fox News’ senior judicial analyst Andrew Napolitano, who was a judge in New Jersey. It’s not certain how much tongue-in-cheek is involved in that suggestion, but in his television analyses of various legal questions, Napolitano has shown a legal philosophy that could turn a confirmation hearing into a verbal slugging match between liberals and conservatives on the Senate Judiciary Committee.
Now, so far as President Obama sending nominations to the Senate, both the Washington Examiner and Washington Post have offered some interesting flashbacks on this subject. The Examiner reminds readers what anti-gun Democrat Sen. Charles Schumer said back in 2007 about any nominations by then-President George W. Bush during his final 18 months in office.
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