The Supreme Court vacancy created by the death of Justice Antonin Scalia has thrust the issue of Supreme Court nominees squarely into the 2016 presidential primaries, and this week, that issue got a little bit more interesting. In an interview with All In host Chris Hayes, Senator Bernie Sanders (I-VT) pointedly declined to make the individual right to own firearms described in District of Columbia v. Heller into a litmus test for his potential Supreme Court picks. At first blush, it seems like Sanders is just skirting the question, but a closer listen makes clear this is pretty much a “no,” since after he says he doesn’t “come up with litmus tests every other day,” Sanders does list his one and only litmus test:

Hayes: I wonder your views about Heller which is the opinion in 2007 by the supreme court finding that basically the second amendment protects an individual right to bear arms. do you think that was properly decided? would you look for a justice who would overturn it? Sanders: Chris, I’m not going to go through every Supreme Court decision. This is what I will tell you. I don’t go around coming up with litmus tests every other day. I’m obviously pro-choice, 100% voting record for women’s rights, for the environment and so forth. I worry, very much, about the future of American democracy, the degree to which we are going to have a vibrant democracy if Citizens United continues to stand.

It would be fair to infer that Sanders also meant to make protecting Roe v Wade a litmus test, but the only one he actually calls a litmus test is Citizens United.

Sanders has already been hit hard by Hillary Clinton over gun control, but before you reach for the torches and pitchforks, on this particular question, it’s unclear of there’s any daylight between them. Hillary has listed numerous litmus tests for Supreme Court picks, among them the Voting Rights Act and protecting marriage equality, but not Heller. During a fundraiser in October, she did proclaim that “the Supreme Court is wrong on the Second Amendment,” but appeared to be talking about assault weapons, which gun rights advocates say are covered by Heller because they are “commonly used.” She has also made comments in the past supportive of the idea that gun ownership is an individual right, so it’s not at all clear that she’d make that aspect of Heller a litmus test now.

There is great public support for certain gun control measures, but on the issue of an individual’s right to own a firearm, a litmus test like this would put Hillary and Bernie on the very wrong side of the general electorate. They could make clarifying the Heller decision’s meaning for assault weapons an issue, but that’s an awfully tough needle to thread.

Either way, it would be enlightening, if awkward, for some journalist to force a straight answer out of both of them on this issue.

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