Republican presidential candidate Ted Cruz warns as part of his stump speech that we are one Supreme Court Justice away from losing our Second Amendment Right to keep and bear arms. On Wednesday, President Obama nominated for the Supreme Court vacancy created by the passing of Justice Antonin Scalia just such an individual -- Judge Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbis, a Bill Clinton appointee. As Carrie Severino, chief counsel for the Judicial Crisis Network, which plans an ad campaign against Garland’s confirmation, noted in National Review last week:

…Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.

Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.

Moreover, in the case mentioned earlier, Garland voted with Tatel to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement.

Scalia told Chris Wallace of Fox News that he would not like to see his replacement be someone who would undo everything he has accomplished and worked for. President Obama dishonors his memory and puts our Second Amendment right to keep and bear arms in the crosshairs by nominating just such a person.  

Sen. Cruz, who warned of a nomination like Garland’s, was a prime mover in getting Heller, in which Scalia wrote the majority opinion, before the Court and decided in favor of gun rights. The Court ruled that the right to keep and bear arms was an individual right and that the word “militia”, as the Founders intended, meant the “whole people” of the United States. If Heller had gone the other way, our gun rights would have been thrown on the ash heap of history. In January Cruz told CNN:

I represented 31 states in the Heller case, which upheld the individual right to keep and bear arms. You know what Barack Obama's position is? That there is no individual right to keep and bear arms whatsoever under the Constitution… Hillary Clinton, for example, has said she will put Supreme Court justices on the court who will overturn Heller. And if Heller is overturned… there were four justices who said that there is no individual right to keep and bear arms whatsoever, that it is only a collective right in the militia, which is fancy lawyer talk for a nonexistent right… [If] Hillary Clinton gets one more Supreme Court justice, what it would mean is, the Supreme Court would say you and I and every individual American have no constitutional right under the Second Amendment at all, and either the federal government or a state government could make it a crime to possess a firearm.

Cruz also opposed another Obama anti-gun pick, the selection of Dr. Vivek Murthy to be Surgeon General, telling CNN’s Candy Crowley as Murthy’s nomination battle was underway:

“Of course we should have a surgeon general in place,” Cruz told Crowley. “And we don’t have one because President Obama, instead of nominating a health professional, he nominated someone who is an anti-gun activist.”

Murthy eventually made it, confirmed in a lame duck session. As Investor’s Business Daily (IBD) noted:

No longer fearing electoral revenge from the National Rifle Association, an outgoing Democratic Senate pushed to confirm an anti-Second Amendment radical, who thinks guns are a health issue, as the nation’s top doc.

A Democratic Senate that earlier balked at the nomination of Dr. Vivek Murthy to be surgeon general of the U.S. no longer feared the possible electoral consequences of approving him in the wake of November’s Republican tsunami.

That, along with the GOP’s obsession to not be blamed for a government shutdown, gave us a bad budget deal and the Democrats a chance to confirm Murthy.

A brief rebellion over immigration led by Sen. Ted Cruz, R-Texas, interrupted the smooth passage of what has been called Cromnibus and led to a weekend session that arguably gave outgoing Senate Majority Leader Harry Reid an opportunity to advance several of President Obama’s nominees toward confirmation, including the once-stalled nomination of Murthy.

Our Second Amendment rights are indeed one SCOTUS pick away from disappearing. The GOP has pledged not even to hold hearings on any nominee, preferring it be part of a referendum in November. President Obama has said he has a right and a duty under the constitution to nominate someone. That he does. But the Constitution also gives the Senate the right and duty to advise and consent, not a duty to hold hearings. The Senate can sit on a nominee or otherwise block the nominee. Then Sen. Barack Obama in 2006 supported a Democratic filibuster against Samuel Alito. Sen. Chuck Schumer advocated blocking nominees when the president was Republican George W. Bush.

The next president should make that pick, not an anti-gun lame duck with an agenda to complete his fundamental transformation of America. Not long ago, the Second Amendment hung in the balance, and we may be thankful Ted Cruz and Antonin Scalia were there to save it. That battle was won, but the war over the Second Amendment is not over.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.