I interpreted Donald Trump as suggesting on Tuesday that “the Second Amendment” people might use violence to stop Hillary Clinton from enacting gun-control laws that would be upheld by a U.S. Supreme Court she would shape. But that’s not what I’m going to write about here. I’m going to write about what else Trump got wrong about the Second Amendment and gun politics, apart from his intimation of insurrection.
“Hillary wants to abolish, essentially abolish, the Second Amendment,” Trump told a rally in Wilmington, N.C. “By the way, and if she gets to pick—if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know. But I'll tell you what—that will be a horrible day.”
So apart from the intimidation implicit in those comments (is the Secret Service having a word with Trump?), let’s compare the Republican candidate’s dark imaginings with reality.
First, Clinton doesn’t advocate repealing the Second Amendment. The main things she has pushed for are expanding background checks to cover all guns sales and a ban on so-called assault weapons. If she’s elected and Democrats take control of both the House and Senate—a big “if”—she might get to enact both her goals. What would that mean?
Her background-check proposal, while entirely reasonable, would make comprehensive the point-of-sale checks that are already law. Those computerized checks are currently required when a federally licensed dealer sells a gun. Clinton wants them to be mandatory when unlicensed “private” sellers transfer a gun. Universal background checks, as they’re called, wouldn’t interfere with law-abiding citizens obtaining firearms.
Truth be told, making the system comprehensive is a pretty marginal improvement, albeit one worth doing to deter purchases by people legally barred from buying guns. (Why “marginal”? Because most criminals obtain their weapons on the black market, where no one is worrying about background checks.)
What about assault weapons, those military-style semiautomatic large-capacity rifles Clinton wants to ban? As it happens, her husband signed an assault weapons ban in 1994 when he was president. That prohibition turned out to be laughably easy to evade, as the industry kept making slightly altered civilian versions of military rifles. I’ve written elsewhere about how the 1990s ban actually helped transform what had been an unimportant product for most manufacturers into a gun-rights poster child, celebrated by the National Rifle Association and sought-after by a much bigger share of the gun-buying public. The law was written to last just 10 years, and in 2004 it expired. If Hillary Clinton revives some kind of assault weapons law, I predict it will fail for similar reasons.
And consider this: Since the last ban had the counterintuitive effect of popularizing assault weapons, tens of millions of them have ended up in private hands. Neither Clinton, nor any other mainstream Democrat, is proposing confiscation of existing assault weapons. She’s talking about barring the acquisition of new military-style rifles—and, as I’ve said, that probably wouldn’t work.
High court vacancies
Then there’s the issue of Clinton’s potential appointments to the Supreme Court. Let’s imagine she gets to fill the empty chair on the high court with President Barack Obama's pending nominee, U.S. Circuit Chief Judge Merrick Garland, or someone even more liberal. And perhaps she’d get to replace another conservative justice or two. That could create a left-leaning majority with the ability to overturn District of Columbia v. Heller, the 2008 landmark ruling that established—for the first time—that the Second Amendment protects an individual right to keep a handgun in the home.
The NRA weighed in yesterday to support Trump on this point: “@realDonaldTrump is right. If @HillaryClinton gets to pick her anti-#2A #SCOTUS judges, there’s nothing we can do. #NeverHillary,” the NRA Tweeted on its official feed.
But even if a Clinton-engineered high court majority took the dramatic step of tossing out such a recent precedent, the practical consequences wouldn’t be that great. That’s because Heller’s constitutional bark has been more impressive than its political bite. It hasn’t stopped multiple states from strengthening their gun regulations. In the absence of Heller, some large, politically liberal cities, such as Washington might edge closer to effective bans on handguns, but the rest of the country wouldn’t see dramatic changes. (Notably, the City of New York has maintained its effective ban on privately owned handguns despite Heller. Just because the Supreme Court speaks doesn’t mean local politicians listen.)
In sum, Trump doesn’t get much right when he talks about the Second Amendment and guns in America. Which isn’t to say that he won’t scare and motivate gun-rights activists with his outlandish statements.