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August 16, 2018

SCOTUS Litmus Test on the Verge of Shifting?

It was abortion, but the Second Amendment is growing in judicial importance.

As you probably can attest to in your own family, “abortion” and “guns” induce some of the most spirited emotions. Likewise, there is no shortage of congressional drama on these issues. In fact, the bickering among lawmakers on abortion and guns is insatiable. This culminates in what we call “litmus tests.” A litmus test is defined as “a crucial and revealing test in which there is one decisive factor.” Throw in a Supreme Court judicial nominee, and this becomes highly problematic — especially when the Rule of Law and protecting the Constitution become secondary to what lawmakers seek to instill. Yet it’s a tactic leftists are resorting to more and more.

For a long time, the overarching litmus test has been abortion — will a judicial nominee swear not to overturn Roe v. Wade. That could possibly be coming to an end. As writer Varad Mehta argues, “The Second Amendment may soon supplant abortion as a litmus test for federal judges.” Here’s how:

As a legal matter, abortion has reached a dead end. Though there continue to be fights over various restrictions and limitations, the field itself is exhausted. Abortion has long been trapped between the 40-yard lines, the dispute being over whether it’ll expand to the 30s. There are other areas of the law which, though nearly as controversial, remain mostly undeveloped. Ones where a new Supreme Court justice could have a decisive impact. Gun rights, for example. Compared with abortion, it is an undiscovered country. Since the landmark Heller v. D.C. (2008) and McDonald v. Chicago (2010) decisions, the Supreme Court has studiously avoided taking another Second Amendment case. That is likely to change in the near future. As it does, there is a strong possibility that a nominee’s views on gun rights will become as important as his or her views on abortion. In other words, the Second Amendment may soon become as much of a litmus test as Roe v. Wade.

It’s important to point out the dichotomy and irony of these two issues. Nothing about abortion appears in the Constitution, which means the federal government should be out of the picture. It’s a state issue. So the idea of a pro-abortion litmus test is absurd, since the Supreme Court engineered this “right.” A duty-bound Supreme Court would actually repeal it. A litmus test on upholding gun control is equally absurd. The Second Amendment explicitly states that “the right of the people to keep and bear Arms shall not be infringed.” Therefore, a Supreme Court justice is bound by the law to support it. The Left’s litmus tests are completely backwards. If anything, there should be a pro-gun litmus test.

On that note, National Review’s David French reports that “the country’s most liberal federal court is up to its old tricks again.” He explains, “Weeks after two different Ninth Circuit panels surprisingly upheld Second Amendment rights by blocking California’s confiscation of large-capacity magazines and Hawaii’s ban on open carry, the nation’s most progressive circuit returned to form. In a ruling earlier this month, it upheld one of the most bizarre and nonsensical gun regulations in the nation.” That regulation, the Unsafe Handgun Act, “requires new handguns sold in the state to have three key safety features.”

French’s objection is spot on: “Let’s be clear: This law represents slow-motion prohibition.” A litmus test that stipulates a nominee must approve of such slow-motion and clearly unconstitutional prohibitions — which Democrats do — is a test in favor of lawlessness. Have we mentioned how critical Brett Kavanaugh is?

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