Not Just the Supreme Court at Stake
By Jeff Knox
(September 15, 2016) With less than 8 weeks left until the critical November elections, both sides are pulling out all the stops to try and get their supporters to the polls. One of the big topics has been potential Supreme Court appointments, but there is much more than just the Supreme Court at stake in November.
With the vacancy on the Court due to the death of Antonin Scalia, we know that the next President will, at a minimum, have that appointment to make, which will either maintain the Court at a slight lean to the “right,” or lean it far to the “left.” Since Scalia was a conservative leader on the Court, it will be close to impossible to find anyone who could effectively fill his shoes, or possibly take the Court any further to the right. That means that regardless of who wins the election, at best, the Court will probably be a bit to the left of where it was a year ago with Scalia on the bench. If Hillary Clinton wins though, Scalia’s replacement would be something between a “moderate liberal” like Obama’s pick, Merrick Garland, and a “radical liberal” like Ruth Bader Ginsburg. Her pick will depend on the make-up of the Senate after the election. Whoever she appoints, when added to the current 4 liberal justices, would mean a solid liberal majority that would completely dominate the Court. There is also a likelihood of 83-year old Justice Ruth Bader Ginsburg retiring if Hillary wins the presidency, meaning the liberal wing of the Court would have only one member over 60-years of age, all but guaranteeing liberal dominance for at least the next 20 to 30 years.
But the Supreme Court is only the tip of the judicial iceberg, and the next President will have a significant impact on the rest of the judiciary as well. Over the past 8 years, Obama has shifted the balance of power in most of the circuits of the Federal Courts of Appeals, along with the Federal District Courts. In all he has appointed over 300 judges to lifetime seats on federal benches, resulting in Democrat majorities in 9 of the 13 Courts of Appeal, with at least 2 of the remaining 4 poised to topple with the next appointments. While most of those appointees have been considered “moderates” by the current yardstick of the pundit class, their decisions have been anything but moderate. Another 4 years of Democrat control will seal all of the circuits in “liberal activist” mode for decades. The Supreme Court is certainly important, but SCOTUS only hears about 80 cases each year, while Federal District Courts hear something in the neighborhood of 200,000 cases each year, and Federal Appeals Courts review approximately 40,000 of those.
Though Congress writes the laws, with the executive branch crafting regulations and enforcing the laws, it is the courts that decide what the laws mean and how they can or must be enforced. They can rule a law null and void by declaring it unconstitutional, or can, in effect, overrule the Constitution by ruling that a law or regulation either doesn’t violate it, or that it only violates it in a minor way which is acceptable as a “reasonable burden” on people’s rights.
For instance, the 9th Circuit recently ruled that federal prosecutors could not prosecute people who violate federal laws against growing, using, or selling marijuana, as long as those people only did so in accordance with state laws regarding marijuana for medical purposes. But in a separate case, the same court ruled that a person who has a state-issued card authorizing them to use marijuana for medicinal purposes can have their right to purchase a firearm denied on the basis that if they have the card, it is a reasonable assumption that they are a user of illegal drugs. Even though the court acknowledged that this is a violation of Second Amendment rights, they concluded that the government’s interest in trying to keep guns away from illegal drug users outweighs individual rights to purchase firearms.
In that particular case, the plaintiff, who holds a medical marijuana card in Nevada, claimed that she did not actually use marijuana, but got the card as a way to show support for the concept. Under that circumstance, the court said, she is not prohibited from possessing firearms and ammunition, but can be prohibited from purchasing them, because it is reasonable for a gun seller who knows that a person has a medical marijuana card to assume that the person is a user of illegal drugs.
In this decision the court applied what is known as “intermediate scrutiny” to reach their conclusion that the infringement of the plaintiff’s Second Amendment rights was acceptable. This level of scrutiny is the middle-ground between “rational basis” and “strict scrutiny,” and is based on a determination that the government has a “compelling interest” for its infringing laws, and that the laws substantially relate to satisfying that interest. The use of “intermediate scrutiny” has become the standard method for courts to ignore the protections of the Second Amendment. Even though the Supreme Court, in their McDonald decision, declared that the right to arms is a fundamental right, and court procedures dictate that the higher standard of “strict scrutiny” should be applied to cases dealing with fundamental rights, liberal-dominated courts routinely ignore this standard and opt to go with “intermediate scrutiny” so they can justify ruling in favor of laws that restrict gun rights.
The only way this trend of abuse will ever be corrected is for the Supreme Court to step in and reverse some of these bad decisions. But that will never happen if Hillary Clinton gets to name the next justice to the Supreme Court, and the abuse will continue to get worse as more liberal judges are added to District and Circuit Courts.
The November elections might not be our last chance to save the Constitution, but they are our best hope for doing so. If Donald Trump doesn’t win, Hillary Clinton does, and Hillary Clinton will unquestionably stack the courts against Second Amendment rights.