The Senate Judiciary Committee kicks off confirmation hearings for Judge Amy Coney Barrett today, and Barrett’s views on the Second Amendment could play an important role in the hearings when President Trump’s nominee for the Supreme Court faces questions from senators starting on Tuesday.
Today’s hearings will contain opening statements by the members of the committee and by Barrett herself, and it’s likely that those opening statements by Democrats on the committee will contain at least one concerned reference to Barrett’s dissent in a case called Kanter v. Barr, which dealt with a man convicted of a non-violent felony attempting to regain his right to keep and bear arms. The three judge panel on the Seventh Circuit that heard the case rejected Rickey Kanter’s legal argument, but in a dissenting opinion Barrett argued that a blanket prohibition on those convicted of felonies exercising their right to keep and bear arms likely violates the Second Amendment.
Instead, Barrett opined that the permanent loss of Second Amendment rights should be limited to those convicted of violent offenses, noting that the history and tradition of the right to keep and bear arms doesn’t comport with a blanket prohibition on non-dangerous people possessing firearms.
Gun control activists are desperate to portray Barrett as a judicial activist who could upend decades of gun control laws through her judicial philosophy. Adam Winkler, a UCLA law professor who’s critical of an expansive reading of the Second Amendment, is among those gun control supporters sounding the alarm.
He 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?”
Actually, the Hughes Amendment doesn’t actually ban anyone from possessing machine guns, just those manufactured after 1987. Pre-ban fully automatic firearms are still legal to own, as long as their registered under the auspices of the National Firearms Act.
Of course gun control advocates don’t actually want to explain the law to non-gun owners. The goal is to scare those who don’t own firearms and aren’t familiar with the intricacies of existing federal law with claims that “Amy Coney Barrett wants serious felons to walk around with machine guns!”
I suspect that Sen. Richard Blumenthal (D-CT) will be the first on the Judiciary Committee to bring up Barrett’s views on the Second Amendment, but I’m also curious to see if Sen. Kamala Harris also includes an attack on Barrett’s 2A jurisprudence during the committee hearings, either in her opening statement or while questioning Barrett herself.
The Biden/Harris campaign has been reluctant to highlight their own anti-gun policies at a time when Americans are purchasing firearms in record numbers, but I wouldn’t be surprised if Harris pokes at Barrett’s views on the right to keep and bear arms in an attempt to portray the nominee as some sort of Second Amendment extremist, while holding herself up as a paragon of moderation and “common sense gun safety regulations.”
If confirmed, Barrett would almost certainly swing the Court towards a more favorable position on the Second Amendment, and she could ultimately end up becoming a critical fifth vote in future challenges to gun control laws that SCOTUS will soon be considering. That’s the real concern for anti-gun activists, as well as the hope of gun owners and Second Amendment supporters, and it’s why Barrett’s 2A views will likely be one of the big topics of debate and discussion during the Judiciary Committee’s confirmation hearings this week.