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Posted By FFL Dealer Network on 11/03/2020 in Firearm News

Judge Amy Coney Barrett and the Second Amendment

Judge Amy Coney Barrett and the Second Amendment

With the confirmation of Judge Amy Coney Barrett to the US Supreme Court, more than a few 2A advocates breathed a sigh of relief. The thinking is the High Court now has a solid majority for justices who support 2A. 

Is that really the case? 

Justice Barrett is touted as a conservative and widely believed to be a 2A advocate. The Right has been wrong before. Judge John Roberts, appointed in 2005, was thought to be the conservative savior. Some of his decisions have very much angered the Right, especially his rulings on the Obamacare act. Justice Clarence Thomas is irked the Court has refused to take up other gun cases. 

So, what about Judge Amy Coney Barrett, who shares a last name with an iconic gun manufacturer? Gun control advocates and the Left are worried. Are their concerns justified? Let's take a look. 

In hearings and interviews, the judge says she owns a gun. That doesn't mean anything. Plenty of politicians demand tighter gun restrictions, never mind they are surrounded by armed guards. The worst example of this two-faced attitude is California state senator Leland Yee

The High Court itself is protected by people with guns

AMY CONEY BARRETT'S RECORD 

The most telling information on how Judge Barrett could rule is found in her dissent on a case she heard as a judge in the 7th Circuit Court of Appeals, Kanter v. Barr

Much political hay was made from that decision. The Left and the Right agree as a SCOTUS Justice, Barrett appears to push gun ownership rights further than any recent judge. Is that attention warranted? Probably. Judge Barrett even said that case is her most significant ruling in her time as a federal judge. 

Kanter is the only gun control case she heard as a federal court judge. The case was about a man who was convicted of a crime, served his sentence and wanted his gun back. Her opinion starts on Page 27. 

She said Kanter should have his gun. "History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward— legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety," she wrote at the beginning of her dissent. 



As she wrapped up her dissent, she took words from fellow SCOTUS Judge Thomas's statement in the McDonald case. She wrote, "On this record, holding that the ban is constitutional as applied to Kanter does not 'put the government through its paces,' but instead treats the Second Amendment as a 'second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,'" 

SHAPING OPINIONS 

One of the ways SCOTUS frames decisions is through a "text, history, and tradition" view. This means the judge authoring the opinion looks at: 

  • Court decisions from the past 
  • The history of the matter in the nation 
  • What tradition says 

Judge Amy Coney Barrett has a solid history of relying on these three ways to frame an opinion. Her sole ruling on guns shows that. Other decisions from the bench show that is how she thinks about most of the cases that come her way. So what about 2A and gun rights with this line of reasoning? 

In the US, court decisions and history are a mixed bag. Gun legislation both favoring and opposing private ownership of guns in the US reaches back to the 1600s. Some of the laws, such as one requiring the master of the house bring a gun to church, sided with gun rights. Others, like the law banning anyone from giving a gun to a Native American or repairing a gun owned by a Native American went against gun ownership. Gun restrictions at the time were mostly aimed at specific groups of people for bigoted reasons. 

Some historians say gun control efforts were a major spark behind the Revolutionary War. "As British troops sailed to Boston in 1768, the Boston Gazette reported that the ministry commanded things 'more grievous to the people, than any thing hitherto made known' the first of which was 'that the inhabitants of this Province are to be disarmed.' By 1774, the British were routinely conducting warrantless searches and seizures of firearms in the Boston area, leading the Gazette to exclaim that 'what most irritated the people next to seizing their arms and ammunition' was the arrest of patriot political leaders. King George III ordered the seizure of any firearms imported into the colonies," reports Washington Post

Historian Dave Kopel makes a compelling argument that taking away guns turned a political disagreement into a shooting war. Tradition has a storied history in the US as well. While the Declaration of Independence says nothing about guns, it does reference group and self defense. 

It is rare, but sometimes tradition is all a "text, history, and tradition" judge can use. A good example of tradition reasoning is found in the Heller decision. "[Justice Brett] Kavanaugh went on to conclude that, because laws have allowed civilians to own semiautomatic rifles since the early 20th century, they should be protected by the Second Amendment today," says The Trace

Justice Barrett falls firmly into the text, history, and tradition category. If she continues to rule with that line of thinking, then the Second Amendment is safe. 

APPEALS ON WAY 

The High Court has rejected all appeals, except two, for a while. The Heller decision saw a 5-4 court rule Americans have the right to own a gun for defense. That should have settled that, but some apparently felt that decision only applied to the Washington D.C. confines. In a second 5-4 decision, the Court said the Heller ruling applied to all the states

"Four justices, based on their comments in some of the petitions that were denied review over the years, seem eager to return to the gun rights issue. Justices Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh have voiced concern that the lower courts are restricting the individual right recognized in District of Columbia v. Heller by an incorrect or overly narrow reading of that decision," said the National Law Journal

If Justice Barrett joins those four, she makes a majority and that is enough to allow a gun rights appeal to go to the High Court. Judge Roberts has sided with the other four justices to reject appeals of gun cases. 

One of the cases that is very likely headed to the High Court is Bennett v. Davis

GET MORE

Read more about Justice Amy Coney Barrett, her views and history.

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