Hillary Clinton’s questioning of a US supreme court decision has given the NRA and Donald Trump fuel for their argument that she wants to ‘ban gun ownership’

Throughout her presidential campaign, Hillary Clinton has said that she supports the second amendment rights of law-abiding gun owners.



But many gun rights advocates say they fear she will reopen the door for cities and states to ban private ownership of handguns, pointing to her repeated comments questioning a key US supreme court decision on gun ownership. Even liberal second amendment experts have called some of Clinton’s explanations of her position “odd”.

As one law professor who supports gun rights put it, Clinton on guns is like a Republican politician who claims she supports abortion rights, even as she opposes Roe v Wade.

At the final presidential debate last week, Clinton reiterated her position that the supreme court was wrong in its 2008 decision in District of Columbia v Heller, which overturned Washington DC’s ban on handgun ownership, as well as a law that required other guns in homes to be “kept nonfunctional”.

In a controversial 5-4 decision, the court ruled that Americans have a constitutional right to have and use firearms in their homes for self-defense.

Clinton had dodged giving a clear answer about her opinion of the ongoing case during a presidential primary debate in early 2008, though she suggested that the supreme court would probably find a full ban on handguns unconstitutional. But in 2015, the Washington Free Beacon reported, Clinton told an audience at a private event that “the supreme court is wrong on the second amendment. And I am going to make that case every chance I get.”



That’s an opinion that is shared by many people – including some of the liberal justices on the supreme court, who argued in their dissent that the second amendment was intended to protect the right of people in each state to form militias, not to limit lawmakers’ ability to regulate civilian gun ownership.

But that particular view is not one that is popular with the general public. A Gallup poll from 2008 found that 73% of Americans believed the second amendment “guarantees the rights of Americans to own guns”.

Publicly, Clinton has stopped short of calling for the supreme court to reverse itself – she told Fox News in July that she did not want to see the Heller decision overturned. During last week’s debate, she said that she supports “an individual right to bear arms”.

But Clinton’s comments questioning Heller have given the National Rifle Association and Donald Trump continuing fuel for their argument that what she really wants to do is overturn Heller and re-open the door for cities and states to “ban private gun ownership”.

The argument Clinton has made repeatedly – including at last week’s debate – is that she disagrees with the supreme court ruling because of her concern that it might undermine the ability of states and cities to pass safe storage laws to keep guns away from children, as well as other “reasonable regulation”.

“I disagreed with the way the court applied the second amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them,” Clinton said. “And the court didn’t accept that reasonable regulation.”

It’s an explanation that fits Clinton’s narrative of being a champion of children’s safety. But several attempts to challenge safe storage laws in court after the Heller decision have failed, most recently in California in 2015,according to Adam Skaggs, the litigation director at the Law Center to Prevent Gun Violence.

That San Francisco safe storage law was very similar to DC’s previous storage requirements, but it included an explicit exemption for self-defense, Skaggs said.

Clinton’s other stated gun control priorities – including expanded background checks on gun sales, a federal ban on assault weapons, and tightening restrictions on gun ownership by domestic abusers – are not currently threatened by the Heller decision.

NRA to spend $15m on ads to defeat Hillary Clinton in key states Read more

Clinton’s campaign has not responded to repeated requests over the past six months to clarify whether or not she believes that cities and states should be allowed to ban handguns.

Her campaign has accused her rival, Donald Trump, of “conspiracy theories” and “peddling falsehoods” when he claimed that she wanted “abolish” the second amendment and “take your guns away”.

Since 2008, the country’s largest gun control groups have moved on from the fight over the controversial Heller decision, arguing that the “commonsense” gun laws they support are fully consistent with the supreme court’s ruling that Americans have the right to have guns in the home for self-defense.

Two of the largest national gun control groups, the Brady Campaign to Prevent Gun Violence and the Michael Bloomberg-backed Everytown for Gun Safety, both said in July that the Heller decision was completely compatible with the gun legislation they support.

“Everytown supports the right of law-abiding gun owners to have a gun in the home for self-defense, as articulated in Heller,” Everytown’s legal director, Elizabeth Avore, said in a statement in July. “Nothing in the decision is inconsistent with commonsense laws to prevent gun violence.”

While Heller was a crucial symbolic victory for gun rights advocates in terms of constitutional interpretation, it has had little impact on the country’s broader landscape of gun laws. Lower courts have upheld the vast majority of gun control laws challenged under Heller.

It’s not clear why Clinton has taken a more aggressive line in questioning Heller than mainstream gun control groups have done.

In May, one of Clinton’s senior policy advisers told Bloomberg Politics: “In overturning Washington DC’s safe storage law, Clinton worries that Heller may open the door to overturning thoughtful, common sense safety measures in the future,” Maya Harris said in an emailed statement to Bloomberg Politics.

Eugene Volokh, a UCLA law professor and prominent gun rights supporter, said Clinton may be “boxed in” by her previous statements about Heller.

“I think the arguments she’s making sound like ways to try to minimize the damage to her from past statements,” he said.

Volokh and Alan Gura, the attorney who successfully argued the Heller case in front of the supreme court, both said they doubted Clinton’s claim that she truly supports an individual right to gun ownership.

“If you were to say, ‘I support abortion rights, but I’m for overturning Roe v Wade and Planned Parenthood v Casey, then what kind of abortion rights are you supporting?” Volokh said.

Gura called Clinton’s endorsement of an individual right “meaningless”.

“You can regulate things out of existence and can still pretend that you support the underlying right.”

Facebook Twitter Pinterest The constitutional right of Americans to bear arms has become a flashpoint in the presidential contest between Clinton and Trump. Photograph: Bloomberg/Bloomberg via Getty Images

Saul Cornell, a legal historian and second amendment expert at Fordham University, said it was fair for gun rights advocates to question if Clinton wanted to ban handguns, but doubted that she would actually take such an extreme position.



“If that was, in fact, what she wanted, she is way out of line with the mainstream thinking on this question, both jurisprudentially and public policy-wise, which would be very odd for her,” Cornell said. Clinton tended to hew to mainstream liberal policy positions, not stake out bold stances, he said.

“The more likely explanation is there’s some confusion here.”

But Clinton’s debate-night description of the Heller case as being about trying “to protect toddlers from guns” did not help her, Cornell said.

The candidate could have made plenty of valid critiques of Heller.

Instead, Cornell said, “she went for what was the most focus-grouped, simplistic analysis, and that played right into the hands of people who were saying she was being disingenuous.”

Fact-checkers have largely given Clinton the benefit of the doubt on her sometimes dodgy statements about the second amendment – a choice that may have helped fuel conservative perceptions that the media has been biased against Trump and for Clinton.

At the same time, the NRA has given the candidate no benefit of the doubt.

“The gun rights community always needs somebody to vilify, and Hillary Clinton is the obvious candidate. In that respect, it doesn’t really matter what she says on the issue,” said Robert Spitzer, a political scientist who has written extensively on America’s gun debate.

The NRA has agued that the second amendment is on the ballot in 2016, since the next president will get to nominate a supreme court justice to replace Antonin Scalia, a gun rights champion and the author of the Heller decision, who died in February.

Asked about Clinton’s assertion that she believes in an individual right to own guns, an NRA spokeswoman said that “those words ring hollow” and that Clinton “can’t have it both ways”.

“She believes that the supreme court got it wrong on Heller, which means she does not believe you have an individual right to own a firearm in your home for self-protection,” Jennifer Baker said after last week’s debate.

Clinton’s opinion on the second amendment may ultimately be less consequential than gun rights advocates fear, or than liberals might hope. Among second amendment scholars, the most common opinion is that even a supreme court with several Clinton appointees is unlikely to overturn the Heller decision completely, though it might try to water down the full implications of the ruling.

Adam Winkler, a UCLA law professor who wrote a book on the Heller case, said earlier this year that it was lack of political support in Congress and in statehouses, not the supreme court’s Heller decision, that was standing in the way of progress on new gun laws.

“Overturning Heller would be a huge mistake. There’s a real possibility of a backlash,” he said. “The gun rights movement is very well organized in all 50 states. If the court were to overturn Heller there would a very rapid response by the National Rifle Association for a constitutional amendment strengthening gun rights.”