The death of Justice Antonin Scalia last weekend has created the sense of an opening for gun control advocates.  The key decisions of the last several years, Heller and McDonald, were both five to four, and it’s hard to imagine President Obama would nominate someone who will see the Second Amendment as protecting an individual right.

Republicans at present are giving the appearance of being willing to fight, though how that might work out in practice isn’t clear.  Voices on the left insisting that the president has the authority to nominate a replacement are correct, but they forget that nominate doesn’t mean install in office.  The Senate has the authority to say yes or no, but both sides, Republicans and Democrats, are well advised to remember that the party in power in the legislative or executive branches swings back and forth, and whatever is done by one can be done by the other.

The vacancy created by the death of Scalia does put the case for gun rights in sharper focus, but this is not a cause for despair.  Three facts have to be taken into account as we figure out how to deal with this change on the Court.

The first of these is the principle of stare decisis.  This, in English, is known as precedent, the doctrine that rulings in the past must guide future decisions.  While precedents can be overturned, they have the quality of inertia that makes changing legal course difficult.  Heller and McDonald are not old enough to be secure, but they’ve already been cited as controlling decisions, as for example, in the Seventh Circuit’s finding that Illinois’s ban on concealed carry was unconstitutional.

Another fact is that the next president has a good chance of nominating replacements for three justices.  Breyer and Kennedy are in their seventies, and Ginsberg is eighty-two.  Breyer and Ginsberg were in the minority in the decisions I named above, and while a nominee may be confirmed during the current president’s term who opposed gun rights, two such opponents could be succeeded by supporters.

And then there are there states and Congress.  Given the narrow split over the last many years in the Senate, large shifts in federal law on the subject of guns—or of many other things—look unlikely.  Even if expansions on background checks could pass, a broad attempt to ban classes of guns would fail.  The chance of gaining national carry license reciprocity through congressional action is also slim.

The states are the centers of greatest potential and greatest risk at the moment.  As with gay marriage, so with gun rights or control.  The Supreme Court decision regarding marriage came after years of efforts in the states and with public opinion to tilt the balance in favor of equality.  If we stick too close to a strategy of protecting gun rights from the top down, we’re in danger of being beaten by a slow advance of bad laws like the universal background check bill enacted in Washington State.

Scalia’s death will make this year more difficult, but it warns us that we are fighting on many fronts.  We have to be skillful and vigilant in all of them.

The views and opinions expressed in this post are those of the author’s and do not necessarily reflect the position of

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