Barrett Nomination Could Signal End of Supreme Court Inaction on Guns

Second Amendment groups rally behind Supreme Court nomination

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September 29, 2020

Activists are hopeful that the nomination of Amy Coney Barrett to the Supreme Court will lead the Court to hear more Second Amendment cases and set future precedents that expand gun rights.

The Supreme Court has ruled in just one gun case since 2008's District of Columbia v. Heller decision, which established an individual right to keep and bear arms. The Court incorporated that right to the states in 2010's McDonald v. City of Chicago. But it has dismissed nearly all of the gun cases since then.

Barrett's record gives activists hope her appointment will end the Court's reluctance to expand on or further clarify Heller. In a 2019 dissent, Barrett argued for an expanded view of Second Amendment protections. At a Hillsdale College event later that year, she noted the Supreme Court has left a lot of room for more gun litigation. In the absence of clarification from the High Court, however, federal circuit court justices are required to perform "a deep dive into founding era documents," rather than rely on precedent.

"The Supreme Court decided District of Columbia v. Heller not that long ago and it has only taken one other Second Amendment case since then. So, there's just not a lot of precedent out there," she said at the event.

If confirmed, Barrett would become the third Supreme Court justice to take issue with the refusal to hear gun-rights cases. Justices Clarence Thomas and Brett Kavanaugh accused the Court of "looking the other way" on gun cases in a June dissent.

And as a Seventh U.S. Circuit Court of Appeals judge, Barrett has challenged gun restrictions. Barrett argued in a 2019 dissent that Heller provided "a place to start" to determine whether or not a Wisconsin man convicted of mail fraud should be barred from owning guns for the rest of his life. But she noted that since the Supreme Court decided on a handgun ban in Heller and "explicitly deferred analysis of" gun ownership by felons, "the scope of its assertion is unclear" on the issue—as well as on other Second Amendment issues.

"That sounds kind of radical to say 'felons can have firearms' but I think it's because what the long-standing prohibitions were, and in fact had been even under federal law until more recently, that violent felons couldn't have firearms," Barrett said during the 2019 event. "What the history showed me is there's been a long-standing practice of saying that those who pose a threat of violence to the community cannot have firearms. And that makes sense, right? History is consistent with common sense."

Jacob D. Charles, executive director of Duke University's Center for Firearms Law, told the Washington Free Beacon that Barrett's nomination means it is "very likely" another gun case could make its way to the Court sooner than later.

"The conservative justices who (reporting suggests) were unsure of where the Chief Justice might come down on Second Amendment issues would no longer need to rely on his vote to take the Court in a direction that expands gun rights," he said.

Alan Gottlieb, founder of the Second Amendment Foundation, which litigates gun-rights cases across the country, called the nomination "critical" and said he believed it would lead to new gun cases at the High Court.

"We should finally see a right-to-carry case and hopefully a magazine case as well on the SCOTUS calendar soon," he told the Free Beacon.

But Charles cautioned it is hard to know exactly what kind of gun case the Court could take up next. A lot depends, he said, on what cases are out there to be taken up. Legal challenges to magazine bans and other controversial gun-control measures are making their way through federal courts across the country.

"What issue the Supreme Court takes may depend on how patiently a majority wants to be about finding the right case in which to expand gun rights," he said.

The country's leading gun-rights groups have united in their praise for Barrett—calling her a "strong choice" who "could help advance the Second Amendment"—while leading gun-control groups have decried her nomination as "extreme" and "a real risk to the progress we've made."

"Judge Barrett's record demonstrates a steadfast commitment to the fundamental rights enshrined in our Constitution," the National Rifle Association said in a statement. "With this nomination, President Trump continues his record of nominating qualified, fair-minded federal judges who respect the Bill of Rights—including the Second Amendment—to our nation's highest court."

The Firearms Policy Coalition said Barrett "could help advance the Second Amendment and our other fundamental freedoms" in a message to supporters. The National Shooting Sports Foundation's Lawrence Keane said she "will reaffirm the importance of originalist jurists when protecting the Second Amendment rights of law-abiding Americans." Gun Owners of America's Erich Pratt called her a "strong choice" who would "examine and apply the Second Amendment as written."

"Gun owners will relish seeing a new addition to the Supreme Court who is ready to hold lower courts accountable for failing to uphold the Constitution and for refusing to follow the Heller and McDonald precedents," Pratt said in a statement.

On the other hand, gun-control groups attacked the nomination. Giffords PAC called Barrett a right-wing judge with "extreme views on the Second Amendment." Kris Brown, president of Brady United Against Gun Violence, told supporters that "our fears just came true" and Barrett "could roll back every single common-sense gun law in our country." David Hogg, cofounder of March For Our Lives, was even more critical, calling Barrett a "conservative gun extremist" and Trump "a fascist."

"Amy Coney Barrett's nomination will not only lead to more violence in a country already besieged by guns, it will also empower corrupt and racist organizations like the NRA to pump more money into our political institutions to uphold white supremacy," he said in a statement.

Hogg's group followed up the heated rhetoric with a protest outside Senate Majority Leader Mitch McConnell's (R., Ky.) home, where the activists painted a mural in the street. Barrett's confirmation hearings are scheduled to begin on Oct. 12.