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I want to start this post by expressing my deepest sympathies to the victims of the shooting in Aurora, Colorado. Also, I would like to point out that the opinions in this post are meant to spark meaningful debate, and in no way represent the views of the Vanderbilt Journal of Entertainment & Technology Law. Having said that, I contemplated whether or not to find a different topic for this post, but I think that this is a topic that should not be ignored.
For those of you who have been studying for the bar exam and may not have kept up with the news, James Holmes opened fire in the middle of a Colorado movie theater at the midnight premiere of the new movie “Batman: The Dark Knight Rises.” Holmes brought an arsenal including a shotgun, automatic rifle, and a handgun. Seventy people were shot and as of the time of this writing, twelve people have died as a result of their injuries. This is the largest mass shooting in U.S. history.
This tragedy has sparked the debate for gun control in the United States, especially in the wake of the current campaign trail. President Obama has made it clear on more than one occasion that he supports American’s Second Amendment right to bear arms. However, with tragic shootings occurring on American soil on an almost annual basis over the past few years (see Fort Hood shooting and the 2011 Tucson shooting) it may be time to consider how the 2012 election will impact the future of the Second Amendment.
As I have already mentioned, President Obama has no intention of creating new gun-control laws. For his part, after supporting the Brady Act, Romney has reevaluated his position and is now opposed to any further gun control legislation. So, the future of the Second Amendment is safe, right? Not so fast.
Three of the current Supreme Court Justices (Breyer, Ginsburg, and Sotomayor) were in the dissent of the 2010 case McDonald v. Chicago, which applied the “Incorporation Doctrine” to the Second Amendment. Presuming that the most recently appointed justice, Elena Kagan, would likely join the dissent in a future case involving the Second Amendment, the 2012 election becomes a lot more important in the context of the Second Amendment. The Supreme Court may be one vote away from overturning its Second Amendment jurisprudence.
Two of the justices in the pro-Second Amendment majority, Antonin Scalia and Anthony Kennedy, will be 80 by the end of the next presidential term. If either or both of them were to leave the court during a second Obama term, it is far likelier than not that an Obama appointee would join what is now the minority to kill the Second Amendment.
Ginsburg and Breyer are also in their 70s. If Romney were to replace one or both of them, it is likely that the right to keep and bear arms would be secure, backed by a 6-3 or 7-2 majority.
– Talor Bearman
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