Supreme Court Shake-Up? Alito Exit Could Hand Trump Critical 2A Appointment

Opinion

In the corridors of Washington, D.C., whispers of Supreme Court Justice Samuel Alito’s potential retirement have grown into a roar. At 75 years old and marking 20 years on the bench, Alito’s upcoming book release on October 6, 2026, just one day after the start of the Court’s new term, has fueled intense speculation that he may step down to ensure his conservative legacy endures under President Donald Trump’s second term. With Republicans holding the Senate majority ahead of the 2026 midterms, the timing appears strategic: a retirement now could allow Trump to appoint a like-minded successor before any potential shift in Senate control.

Alito’s Role in Bruen and the Modern Second Amendment Framework

Alito, appointed by President George W. Bush in 2006, has been a cornerstone of the Court’s conservative wing, particularly on issues like gun rights. His input in the landmark 2022 decision in New York State Rifle & Pistol Association v. Bruen revolutionized Second Amendment jurisprudence, striking down New York’s restrictive concealed-carry laws and establishing a history-and-tradition test for evaluating gun regulations. This ruling has led to a wave of lower-court decisions invalidating various gun control measures, from assault weapon bans to age restrictions on firearm purchases. Alito’s retirement would create an opportunity to solidify or potentially alter this pro-gun trajectory, depending on his replacement.

Why 2026 Timing Matters Politically

The political landscape in 2026 adds urgency to the speculation. Trump’s administration has prioritized judicial appointments, having already reshaped the federal judiciary with over 200 conservative judges in his first term. With no current vacancies on the Supreme Court, attention has focused on Alito and Justice Clarence Thomas, both in their mid-to-late 70s, as likely to retire while Republicans control the confirmation process. Analysts suggest Alito’s book timing signals a desire to avoid the Court’s busy October docket, allowing him to promote his work post-retirement while ensuring a successor who aligns with his originalist views on the Constitution, including robust protections for gun owners.

Gun rights advocates are particularly attuned to this development. Alito’s input in the Bruen opinion emphasized that the Second Amendment protects an individual’s right to carry firearms for self-defense outside the home, invalidating laws without historical analogues from the Founding era. This has empowered challenges to modern gun laws, leading to rulings against bans on high-capacity magazines and restrictions on “ghost guns.” A replacement who deviates from this stance could tip the balance in future cases, such as ongoing disputes over red-flag laws or assault weapon prohibitions. Conversely, a staunch conservative could extend Bruen’s reach, further limiting state-level gun control efforts.

Best 2A Judges to Replace Alito?

Amid the buzz, three names have emerged as top contenders to replace Alito, each with strong conservative credentials and ties to Trump’s judicial philosophy. These potential nominees, Fifth Circuit Judges James Ho and Andrew Oldham, and D.C. Circuit Judge Neomi Rao, have demonstrated varying degrees of commitment to expansive Second Amendment interpretations, as reflected in their judicial records, writings, and advocacy.

Judge James Ho

First among the frontrunners is Judge James Ho, 51, of the U.S. Court of Appeals for the Fifth Circuit. Appointed by Trump in 2017, Ho has quickly established himself as one of the most vocal defenders of Second Amendment rights on the federal bench. In United States v. Rahimi, before the Supreme Court reversed the Fifth Circuit, Ho wrote a concurrence strongly criticizing any perceived erosion of Bruen’s history-and-tradition framework. He has repeatedly emphasized that the Second Amendment must be interpreted according to its original public meaning, rejecting what he calls “living constitutionalism” approaches to gun regulation.

Ho’s writings and speeches outside the courtroom further underscore his commitment to gun rights. He has criticized lower courts for what he views as resistance to Bruen and has advocated for broad protections of carry rights, including in public spaces. Gun rights organizations such as the National Rifle Association (NRA) and Gun Owners of America (GOA) have praised his record, viewing him as someone who would not only preserve but potentially expand upon Alito’s legacy in this area. At 51, Ho would also bring decades of potential service to the Court, making him an attractive long-term pick for conservatives hoping to lock in a pro-Second Amendment majority.

Judge Andrew Oldham

The second leading contender is Judge Andrew Oldham, also 51, another Trump appointee to the Fifth Circuit (confirmed in 2018). Oldham shares Ho’s originalist bent and has authored several opinions applying Bruen’s test rigorously. In United States v. Rahimi, Oldham joined the majority striking down the federal ban on firearms possession by individuals subject to domestic violence restraining orders, reasoning that the government failed to show a sufficient historical analogue. Although the Supreme Court later reversed that ruling in 2024, Oldham’s opinion demonstrated a strict adherence to the history-and-tradition methodology that Alito helped establish.

Oldham has also shown skepticism toward expansive interpretations of federal gun laws, particularly those that rely on modern policy concerns rather than Founding-era evidence. In cases involving bump stocks and other firearm accessories, he has pushed back against administrative overreach by agencies such as the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Second Amendment advocates see Oldham as a reliable vote to continue limiting government restrictions on firearms, especially in challenges to state-level bans on commonly owned semiautomatic rifles often labeled “assault weapons.” His youth and judicial experience make him another strong candidate for a multi-decade tenure.

Judge Neomi Rao

Rounding out the top three is Judge Neomi Rao, 52, of the U.S. Court of Appeals for the D.C. Circuit. Appointed by Trump in 2019, Rao previously served as Administrator of the Office of Information and Regulatory Affairs and has deep ties to the conservative legal movement. While her record on gun rights is less extensive than Ho’s or Oldham’s, given the D.C. Circuit’s docket, Rao has shown sympathy toward Second Amendment claims in several key cases.

In Worth v. Harrington, Rao joined a panel that applied Bruen to strike down Maryland’s ban on certain semiautomatic rifles and standard-capacity magazines, finding no adequate historical tradition justifying the restrictions. She has also written separately in other cases to stress the importance of textualism and originalism when interpreting constitutional provisions, including the right to keep and bear arms. Gun rights groups have noted her willingness to scrutinize government justifications for firearm regulations, and her administrative law background could prove valuable in future challenges to ATF rulemakings.

Rao’s confirmation would mark another milestone for diversity on the Court, as she would be only the third woman of South Asian descent to serve if confirmed. Her relative youth and prior experience in the executive branch also align with Trump’s preference for appointees who have demonstrated loyalty to conservative principles across government branches.

Cementing the Post-Bruen Majority

All three candidates, Ho, Oldham, and Rao, represent a continuation of the Trump-era judicial philosophy that produced Bruen and subsequent pro-gun decisions. Each has passed the history-and-tradition test, a framework that has already invalidated dozens of gun control laws nationwide. Their elevation would likely reassure Second Amendment supporters that the Court’s 6-3 conservative majority remains committed to protecting individual firearm rights against both state and federal encroachments.

Of course, speculation about Alito’s retirement remains just that, speculation. The justice has given no public indication of an imminent departure, and some observers caution that he may choose to remain on the bench through at least the 2028 election cycle. Still, the combination of his age, the strategic timing of his book, and the political incentives for a Republican Senate majority has kept the conversation alive.

For gun rights advocates, the stakes could not be higher. A near-term retirement would offer President Trump a rare chance to cement the post-Bruen landscape before any shift in Senate control or public opinion. Whether the replacement is Ho, Oldham, Rao, or another conservative jurist, the focus will remain on who can best carry forward, or perhaps even expand, the vision of a robust, historically grounded Second Amendment that Alito helped enshrine.

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About John Crump

Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.