Senator Lindsey Graham of South Carolina has died at 71, and the tributes arriving from Washington will rightly dwell on three decades of service in the House and Senate. I want to focus on a narrower legacy, but one I consider his most consequential: without Lindsey Graham, the modern Second Amendment majority on the United States Supreme Court does not exist. That is not sentiment. It is a matter of record, built hearing by hearing on the Senate Judiciary Committee, and it deserves to be understood clearly at the moment of his passing.
The Seat Held Open for the People
Justice Antonin Scalia, author of District of Columbia v. Heller, 554 U.S. 570 (2008), died on February 13, 2016, in the middle of that year’s presidential campaign. President Obama nominated Merrick Garland a month later. The Senate was in Republican hands, and Senate Majority Leader Mitch McConnell, together with Judiciary Committee Chairman Chuck Grassley, made the decision that no hearing would be held until the American people chose the next president. Graham was not chairman in 2016 — that gavel belonged to Grassley until 2019 — but as a senior member of that committee and a close ally of both McConnell and Grassley, he was part of the leadership triangle that held the line. Garland’s nomination expired without a vote on January 3, 2017. Donald Trump won the presidency, and Neil Gorsuch was confirmed to the Scalia seat on April 7, 2017, by a vote of 54–45. It bears noting that Garland, who went on to serve as Attorney General, ran a Justice Department that argued against the Second Amendment claimants in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022) — a case we won. The seat Graham helped hold open did not go to that Department of Justice.
The Kavanaugh Defense
Graham’s defining moment came in September 2018, when Brett Kavanaugh’s nomination was thrown into crisis by Christine Blasey Ford’s allegations before the Judiciary Committee. Graham’s response at that hearing is among the most quoted floor speeches in modern Senate history. He told his Democratic colleagues:
“If you wanted an FBI investigation, you could have come to us. What you want to do is destroy this guy’s life, hold this seat open, and hope you win in 2020.”
And later, in the same hearing:
“Boy, y’all want power. God, I hope you never get it. I hope the American people can see through this sham.”
Kavanaugh was confirmed on October 6, 2018, by a vote of 50–48. As a judge on the D.C. Circuit, he had dissented in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), arguing that a text, history, and tradition analysis forecloses banning semi-automatic rifles like the AR-15. He has been a reliable vote for the Second Amendment ever since, and I would not be surprised if he writes a future majority opinion vindicating that very dissent. None of that happens without the defense Graham mounted when the nomination was on the brink.
Five Weeks in the Fall of 2020
Justice Ruth Bader Ginsburg died on September 18, 2020, weeks before a presidential election. President Trump nominated Amy Coney Barrett, and with a Republican Senate and Graham now chairing the Judiciary Committee, she was confirmed on October 26, 2020, by a vote of 52–48 — barely five weeks after the seat opened. Justice Barrett has since been a steady vote in Bruen, in United States v. Rahimi, 602 U.S. 680 (2024), and in this term’s United States v. Hemani and Wolford v. Lopez. That speed, engineered under Graham’s committee leadership, foreclosed the kind of delay that cost Merrick Garland his seat four years earlier.
The One Vote I Would Take Back
I will not pretend Graham’s record was spotless. In 2022 he voted for the Bipartisan Safer Communities Act, the gun-control package negotiated by Senator John Cornyn, which handed President Biden a legislative win I opposed then and oppose now. That vote is a legitimate blemish. But Graham was also on record as an AR-15 owner who kept one for his own self-defense, and no single vote erases three Supreme Court confirmations and the hundreds of lower-court judges he helped install.
Closing
No one’s record in Washington is perfect, and Graham’s was not. But when the history of the modern Second Amendment is written, his name belongs on the page alongside Gorsuch, Kavanaugh, and Barrett — because without him, none of the three would sit on that Court today. My condolences go to his family, his staff, and his colleagues, including President Trump, who lost a genuine ally in the fight to restore the Constitution’s original meaning.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.