Judge Amy Coney Barrett, President Trump's nominee to the Supreme Court, is a gun owner who says she shares the outlook of her mentor, the late Justice Antonin Scalia, and that's got
gun control advocates worrying that big changes could be on the way if Judge Coney Barrett is confirmed.
NPR reports Kris Brown, president of Brady United Against Gun Violence, said she has "grave concerns" about that prospect.
"There's a whole host of public safety bills and laws that we've had in effect for a quarter century, including the Brady background check system, that we are concerned about with her on the court," Brown said.
The case that has gun-controllers worried is a 7th Circuit case, Kanter v Barr, which NPR’s Carrie Johnson reports involved a man convicted of one count of mail fraud. Rickey Kanter, who ran a company called Dr. Comfort, served his time and wanted his gun rights back. The court majority rejected the idea. But Barrett produced a 37-page dissent tracing the history of the Second Amendment and the history of punishing convicted felons.
In essence, reported Ms. Johnson, Judge Coney Barrett concluded that historical precedent led to the conclusion that only people convicted of dangerous felonies should lose their right to keep and bear arms. The judge left open the possibility that others convicted of misdemeanor charges — on, for instance, domestic violence — should lose their gun rights for some time.
"In sum, founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety," Barrett wrote. "But neither the convention proposals nor historical practice supports a legislative power to categorically disarm felons because of their status as felons."
UCLA law professor Adam Winkler, who wrote a book about Second Amendment jurisprudence called Gunfight: The Battle Over the Right to Bear Arms in America, said her originalist approach to the Second Amendment could throw into question a lot of newer laws on the books, from prohibitions on machine guns to so-called red flag laws in at least 20 states that allow authorities or relatives to ask for court permission to remove weapons from people who represent a danger to themselves or others.
"We only started banning machine guns from civilian hands in the 1980s," Winkler said. "Does that mean that there's a constitutional right to have machine guns because there's no strong historical precedent for banning those weapons?"
Editor’s note: One could only hope!
When asked by the Senate Judiciary Committee to list her ten most significant cases Judge Coney Barrett list Kanter v Barr as number one.
Debra Cassens Weiss, writing for the ABA Journal, noted the Supreme Court declined to hear 10 Second Amendment cases in June. Four justices who commented on the decision to decline review appear ready to address gun rights issues, according to the National Law Journal. The four justices—Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh—have raised concerns that Second Amendment rights are being applied too narrowly.
Our friends at the NRA-ILA recently noted that Supreme Court Justice Clarence Thomas has regularly disparaged (here, here and here) “the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”
Only four votes were needed to grant review, but the four conservative justices may have been reluctant to hear a case because of fears that they did not have a fifth vote for their side, according to the National Law Journal.
Erich Pratt, senior vice president at Gun Owners of America, told Bloomberg Law that Barrett’s approach indicates “a willingness to examine and apply the Second Amendment as written, by looking at its text and using history as a guide, instead of engaging in the judge-empowering interest balancing that has run rampant in the lower courts.”
Olivia Li, writing for the anti-gun website The Trace observed that litigants need only four justices to agree to take their case, and cases abound. Currently, there are petitions on issues like public carry permits and felon dispossession poised to go before the Supreme Court. With Judge Amy Coney Barrett’s confirmation, the justices will have the votes to end the court’s decade of silence on the scope of the right to bear arms — and a 6-3 conservative majority is likely to reimagine the real-life application of the Second Amendment.
CHQ Editor George Rasley is a certified rifle and pistol instructor, a Glock ® certified pistol armorer and a veteran of over 300 political campaigns, including every Republican presidential campaign from 1976 to 2008. He served as lead advance representative for Governor Sarah Palin in 2008 and has served as a staff member, consultant, or advance representative for some of America's most recognized conservative Republican political figures, including President Ronald Reagan and Jack Kemp. He served in policy and communications positions on the House and Senate staff, and during the George H.W. Bush administration he served on the White House staff of Vice President Dan Quayle.
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