When the supreme court ruled in 2008 that the second amendment gives Americans an individual right to own a firearm, it was Justice Antonin Scalia who wrote the historic and controversial majority opinion. The decision in that District of Columbia v Heller case, which struck down a local handgun ban, was 5-4.

It was also Scalia who last month joined in Justice Clarence Thomas’s strongly worded dissent when the supreme court chose not to reconsider a seventh circuit court of appeals decision that an Illinois city’s assault weapon ban was constitutional.

“If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing,” the dissent argued.



Scalia’s sudden death at age 79 throws the supreme court’s divided stance on the second amendment into question.

Dave Kopel, an attorney and gun rights advocate, was part of the legal team that won a historic victory in the Heller case.

“President Obama has said he believes the second amendment is an individual right, but in terms of what he thinks it protects, it’s a vanishingly small right,” he said. “The politics of what happens in a confirmation process is unclear, but based on the past, we can expect that he will appoint someone who will pay lip service to the second amendment and then vote to overturn Heller.”

Kopel said he testified in the Senate confirmation hearings of justices Sonia Sotomayor and Elena Kagan. Sotomayor, he said, “told the Senate that she considered Heller settled precedent”, but then voted against it “at the first opportunity”, when she joined the dissent in the 2010 McDonald v Chicago case, which clarified that the second amendment individual right established in the Heller case also applied to the states.

Since the Heller and McDonald cases, the supreme court has dodged several opportunities to further clarify the scope of the second amendment, prompting questions among legal observers about whether the court had become gun-shy.

While the supreme court does not have any cases immediately on deck that involve the second amendment, Kopel said, there are gun rights cases in the pipeline, including the appeal of a second circuit decision upholding assault weapon bans in New York and Connecticut.

Scalia’s loss has shifted his perspective on the security of gun rights in the US, he said.

“Of course it’s concerning,” he said. “It was only a 5-4 decision.”