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The Supreme Court’s decision in McDonald v. Chicago underscores just how close this country came to losing the fundamental right to bear arms and just how important the debate over President Obama’s nominee to the Supreme Court, Elena Kagan, will be.

By a narrow 5-4 margin, the Supreme Court held that the Second Amendment guarantee enshrined in the Constitution applies equally to state and local governments. In an earlier decision, District of Columbia v. Heller, the Court held by a narrow 5-4 margin that this fundamental guarantee applies to the federal government.

After Heller, the application of the Second Amendment to the states should have been a no-brainer. The Court in Heller declared that the Second Amendment right to bear arms is a “fundamental” right firmly rooted in our nation’s history and traditions. In the past, the Supreme Court has held that such “fundamental” rights apply equally to state and local governments.

Nonetheless, the fight to water down the right to bear arms continued in McDonald. There, the City of Chicago and Village of Oak Park sought to preserve ordinances that essentially prohibited the possession of handguns within city limits. In Heller, the Supreme Court held that a similar handgun ban in the District of Columbia violated the Second Amendment. However, the Court did not specifically address whether the Second Amendment prohibited states from enacting similar restrictions.

The Court in McDonald confirmed that its prior decision in Heller applied equally to state and local governments. In so ruling, it provided a powerful affirmation of the fundamental nature of the right to bear arms. Analyzing the plain language and history of the Constitution, Justice Samuel Alito reiterated that the right to bear arms was a “basic” and “fundamental” right that enjoyed full constitutional protection, refusing to treat it as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

This ruling, however, drew strongly-worded dissents. For example, Justice Stephen Breyer wrote that he could “find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.” Likewise, Justice John Paul Stevens wrote that “the Second Amendment differs in fundamental respects from its neighboring provisions in the Bill of Rights” because “firearms have a fundamentally ambivalent relationship to liberty” and may be “misused.” Accordingly, he refused to adopt a “rigid historical methodology” that applied the Second Amendment to the states, arguing that such an approach would be “unfaithful to the Constitution’s command.”

Thus, the decision in McDonald demonstrates, once again, that the Court is deeply divided over gun rights. Moreover, this debate is likely to continue as courts struggle with the permissible scope of state regulation of the fundamental right to bear arms. As Justice Stevens observed in his dissent, “it is far from clear that proponents of an individual right ought to celebrate today’s decision.” The battle over Second Amendment rights is likely to drag on.

The McDonald decision also underscores the importance of each nomination to the Supreme Court, and in particular the pending nomination of Elena Kagan. Already, many have raised questions regarding Kagan’s commitment to Second Amendment rights, citing her role in promoting gun control during her time in the Clinton White House and a memo she wrote as a law clerk for Justice Thurgood Marshall in which she stated that she was “not sympathetic” to a litigant’s claim that the District of Columbia had violated his right to bear arms.

While she stated during her confirmation hearings that the Supreme Court’s decision in Heller is “binding precedent,” this answer cannot give supporters of the Second Amendment much comfort. Such precedents may be “binding” on the lower courts, but the Supreme Court is always free to reverse its existing precedents. As a sitting Justice, Kagan and her colleagues would have the power to undo Heller. Accordingly, given Kagan’s record, each Senator must ask whether this risk is worth taking.

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In her first appearance on the Supreme Court bench, newly minted Justice Sonia Sotomayor made some comments that have renewed questions regarding her judicial philosophy.

During oral argument on the campaign-finance case Citizens United v. Federal Election Commission, she suggested that the Court should revisit more than 100 years of precedent, questioning whether corporations were properly considered “persons” entitled to rights under the Constitution. However, the reasoning behind this suggestion is questionable, given that it is based on the contention that judges created corporations as “persons” and thus can reverse that decision. This assertion is inaccurate as a matter of history and current practice. Corporations are chartered by state legislatures and are “creatures” of the legislative branch—not the judiciary. From the founding period, they have been considered artificial “persons,” a doctrine that has strong roots in the common law. Arbitrarily depriving them of their long-possessed rights through judicial decision making would constitute an improper intrusion on the authority of both the states and the legislative branch. Accordingly, it again raises the question whether Justice Sotomayor’s view of the judicial role is consistent with what was contemplated by the Constitution. Only time will tell.

Douglas Smith is an adjunct scholar at the American Enterprise Institute.

The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have received
significant attention, with many arguing that they will revolutionize the standards for bringing civil lawsuits in the federal courts, making them much more stringent. In these decisions, the Supreme Court held that a plaintiff’s complaint must contain allegations that are “plausible” on their face, and that a mere possibility that a defendant might be liable is not enough to state a claim in federal court.

The attention these decisions have received has spurred Congress to act, but not in ways that will be productive for the legal system. Senator Arlen Specter has introduced legislation entitled “The Notice Pleading Restoration Act” that would “overrule” the Supreme Court’s decisions in Iqbal and Twombly, and replace the standards articulated by the Supreme Court.

Such legislation is problematic for several reasons. First, as a matter of core competency, it is the courts—not Congress—that is in the best position to determine pleading standards. In both Iqbal and Twombly, the Supreme Court relied on nearly a century of precedent interpreting the Federal Rules of Civil Procedure. Moreover, Twombly at least was the result of a solid consensus, with seven of the justices joining in a majority decision authored by former Justice Souter.

The proposed legislation is also bad policy. As the Supreme Court observed in its decisions, defendants
often face significant burdens if litigation progresses past the pleading stage, given the broad-ranging
discovery authorized under the Federal Rules. Accordingly, there is a need for stringent judicial
scrutiny to ensure that, before these burdens are imposed, plaintiffs can at least articulate a plausible
claim.

Finally, the proposed legislation seeks to utilize procedural rules as a vehicle for substantive outcomes.
Indeed, as many commentators have observed, it is only the most recent in a series of proposed measures
Congress has floated that are designed to make it easier for plaintiffs to prevail in civil lawsuits.
Congress should think twice before amending broadly applicable procedural rules to achieve such
results-oriented outcomes.

Douglas Smith is an adjunct scholar at the American Enterprise Institute.