The Second Amendment is hanging in the balance, and Trump’s Supreme Court nomination this Saturday will determine its fate. All of Trump’s likely nominees – 7th Circuit Judge Amy Coney Barrett, 11th Circuit Judge Barbara Lagoa and 4th Circuit Judge Allison Jones Rushing – would likely be strong on this issue. But Barrett has the clearest record, having actually ruled on such cases. Barrett is also the most feared by liberals, some of whom concede that she has “a topnotch legal mind.”
By a narrow 5-to-4 majority, the Supreme Court has now twice ruled that there is an individual right to self-defense. Democrats, however, steadfastly promise to overturn those decisions. They claim the Second Amendment only guarantees the government the right to own guns.
Few issues divide Democrat and Republican-appointed judges more consistently and completely than gun control. The remaining Democratic appointments — Sotomayor, Breyer, and Kagan — have all noted their intentions to vote to overturn the court’s 2008 Heller and 2010 McDonald decisions, which merely ensured that the government could not completely ban guns. The Democratic justices on the Supreme Court dissented from the McDonald case by arguing that the U.S. Constitution does “not include a general right to keep and bear firearms for purposes of private self-defense. . . . the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.”
At a town hall event in New Hampshire earlier this month, Joe Biden was asked whether he agreed that the Second Amendment protects an individual’s right to own guns. Biden made it clear enough that he would overturn the court’s Heller and McDonald decisions: “If I were on the court, I wouldn’t have made the same ruling.”
The Supreme Court considered 10 Second Amendment cases this year, but ultimately declined to hear any of them. Four Republican-appointed justices clearly care about enshrining the right to self-defense, but they probably feared that Chief Justice John Roberts would side with the liberal justices. Roberts has already done so on cases concerning religious freedom, immigration, and Obamacare.
It has been 10 years since the court has heard any gun control cases. In the meantime, circuit courts controlled by Democrats (with jurisdiction over 24 states, plus D.C.) have approved even the most draconian state gun control regulations.
These courts have upheld the refusals of California, Hawaii, Maryland, Massachusetts, New York, and New Jersey to recognize that people have a right to self-defense outside of their homes. States such as California and Illinois require residents to pay $400 to $1,000-plus to get concealed-carry permits, putting gun ownership out of reach for minorities in high-crime neighborhoods. Illinois completely bars nonresidents from carrying.
No gunmaker has figured out yet how to meet California's requirement for micro-stamping — a technology by which firing pins would in theory imprint a unique, identifying code on each shell casing. Even if someone implements this technology, a criminal could circumvent it by simply filing down or replacing the pin.
Handguns that don’t meet California’s impossible standard will soon be banned. And the liberal 9th Circuit Court consistently approves whatever regulations California legislators wish to pass. With Democrats promising to eliminate the Senate filibuster, a lot of similar federal laws are destined to be passed if Democrats win in November.
Barrett sets a higher bar for regulations. In Kanter v. Barr (2019), she had no problem with banning gun ownership by those who have a demonstrated tendency toward violence. But when it comes to constitutional rights, absent any evidence of the effectiveness of such a ban, Barrett argued that a blanket rule which applies even to nonviolent felons would be going too far. Barrett's careful analysis of the history of gun regulations reveals a formidable legal mind.
She powerfully uses the claims of liberals to show their inconsistencies, writing that the definition of nonviolent felonies is “wildly overinclusive,” even covering people convicted of redeeming large quantities of out-of-state bottle deposits in Michigan.
My research shows that the toughest confirmation battles are reserved for the smartest judicial nominees. After all, more sharp-minded Justices are more likely to make arguments that sway other members of the court. For those who care about preserving Americans’ individual rights, Amy Barrett will provide the strongest defense.