The U.S. Senate Judiciary Committee is scheduled to begin confirmation hearings next week for Judge Amy Coney Barrett, President Donald Trump’s nominee to fill the U.S. Supreme Court seat left vacant after the passing of Justice Ruth Bader Ginsburg.
If the rhetoric of many gun-control advocates is anything to go by, Judge Barrett is “a gun-rights extremist” who, if given the chance, would likely give machine guns to violent felons while they’re still imprisoned.
While that rhetoric is rooted far from reality, there are good reasons for gun-control advocates to fear her confirmation to the nation’s highest court. Judge Barrett is a committed originalist with a solid track record on the Second Amendment. In other words, she cares what the U.S. Constitution says about our right to keep and bear arms, not what gun control advocates believe it ought to say.
As we’ve often noted at the Heritage Foundation, a good judge knows that his or her job is not to legislate from the bench or make rulings based on his or her personal preferences of what the law should be. Rather, the job of a judge is to take the clear and original meaning of a statute or constitutional clause and apply it fairly to the facts of the case, regardless of whether the judge personally likes the outcome.
An originalist judge knows that the words of the Second Amendment had a specific meaning at the time they were ratified, and that meaning doesn’t change according to a judge’s arbitrary whims. Rather, the meaning only changes when the people, working through the democratic process, amend the U.S. Constitution and the protections therein.
That Judge Barrett is a committed originalist is, in and of itself, a promising sign for people concerned with safeguarding constitutional protections, including those found in the Second Amendment.
But, when it comes to Judge Barrett and the Second Amendment, we don’t need to make educated guesses about whether she will faithfully apply this judicial philosophy of originalism—she has already proven that she will.
Last year, while on the Seventh Circuit, Judge Barrett had the opportunity to hear a case dealing directly with gun-control restrictions and the Second Amendment. She handled that case brilliantly, proving that, when it comes to protecting our right to keep and bear arms, she is willing to “walk the talk” of originalism.
Nearly a decade ago, Robert Kanter pled guilty to a single count of federal mail fraud; this was the result of having mailed medical shoe inserts to customers while wrongly representing that the inserts were Medicare-approved. He was sentenced to one year and a day in prison.
Despite the fact that no one ever alleged that Kanter posed a danger to himself or to the public, the confluence of state and federal law meant that, absent a presidential pardon, Kanter had permanently lost his Second Amendment rights.
The majority of judges on Judge Barrett’s panel upheld the lifetime prohibition under the theory that it survived “intermediate scrutiny” because it “is substantially related to an important governmental objective.”
Judge Barrett dissented from this opinion, offering a lesson in Second Amendment jurisprudence, and a clear picture of how she relies on the text, history and tradition of the Amendment to reach her legal conclusions.
Following in the footsteps of the late Justice Antonin Scalia in District of Columbia v. Heller, Judge Barrett dug deeply into the history of the Second Amendment, early gun control laws and the stripping of rights from felons.
She concluded: “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.”
Moreover, Judge Barrett noted that the laws in question were not tailored to serve the government’s compelling interest in protecting the public. The government never provided any real evidence that a lifetime ban on gun ownership for all non-violent felons, or for Kanter specifically, would meaningfully protect the public. “Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”
Importantly, in a questionnaire submitted to the U.S. Senate Judiciary Committee, Judge Barrett listed this dissent as the most-significant opinion of her judicial career thus far. That certainly bodes well for her continued application of this type of analysis to future Second Amendment cases.
So yes, if Judge Barrett’s dissent in Kanter is an accurate foretaste of what we can expect from her, then gun-control advocates are right to fear her confirmation, while Second Amendment advocates have reason to celebrate.
We have long known that there are at least four current Justices willing to finally break the Court’s decade-long silent acquiescence to the erosion of a fundamental right. A Justice Amy Coney Barrett would likely mean, at long last, that there is a fifth Justice willing to heed the dictates of the U.S. Constitution over the whims of gun-control advocates.
This piece originally appeared in America's First Freedom on 10/10/20