Democrats on the Senate Judiciary Committee have largely ignored the Second Amendment in their opening statements during the Supreme Court confirmation hearings for Judge Amy Coney Barrett, with one notable exception. Sen. Richard Blumenthal (D-CT), accused Barrett of being an “activist judge that would legislate from the bench,” including when it comes to our right to keep and bear arms.
Blumenthal, like virtually every other Democrat on the Judiciary Committee, aimed most of his fire at Barrett’s views on the constitutionality of the Affordable Care Act, but also chided the judge for her judicial philosophy when it comes to the Second Amendment, which he says would cause many gun control laws around the country to be tossed out as unconstitutional.
“An activist judge on the bench doing what Congress could not do would also strike down common sense gun safety laws.” Blumenthal opined during his opening statement. “Connecticut has been at the forefront on gun violence protection. On gun safety, Judge, you acknowledged that your dissenting opinion in Kanter sounds kind of radical. That’s because it is. But if your views on the Second Amendment are adopted by the Supreme Court it would imperil common sense state laws like Connecticut’s all around the country.”
Blumenthal failed to mention any specific gun law that he believes would be endangered by Barrett’s confirmation to the Court, which isn’t surprising. Most Democrats have been downplaying talk of gun control on the campaign trail in recent months, and Blumenthal doesn’t really want gun control to be a focus of this week’s confirmation hearings either.
At a time when new records for gun sales are being set every month, and Americans across racial, economic, and political divides are embracing the right to keep and bear arms, the last thing that Democrats want to do is to use the Barrett hearings to remind voters of the anti-gun agenda of the Biden/Harris campaign.
For her part, Barrett has made it clear that she stands by her dissenting opinion in Kanter vs. Barr, in which she argued that not all crimes are created equal when it comes to depriving convicted felons of their right to keep and bear arms. Barrett said that those convicted of non-violent offenses shouldn’t automatically lose their Second Amendment rights, and she backed up her argument with plenty of evidence.
Judge Barrett’s dissent carefully examined Founding-era laws regarding felonies and the consequences of a conviction. Despite the government’s assertion that “the historical record supports the conclusion that felons are not entitled to Second Amendment protection,” she found that traditionally, felons serving a term of years had their rights suspended but not extinguished. Status as a convicted felon alone could not support a “permanent and pervasive” loss of firearm rights.
Further, the government failed to show how disarming the “immense and diverse category” of non-violent offenders like Kanter (or Martha Stewart) was closely related to the goal of protecting public safety, or how Kanter’s own personal history was related to that interest. All in all, Judge Barrett concluded that the relevant focus was dangerousness: legislatures could disarm those who had demonstrated a proclivity for violence or who would otherwise threaten public safety, but could not completely deprive nonviolent felons of the right to possess arms solely because of their status as felons.
You’d think that Blumenthal, who holds himself up to be a champion of criminal justice reform, would actually be in agreement with Barrett on the issue of the full restoration of rights for those convicted of non-violent offenses, but Blumenthal apparently believes the Second Amendment is a special case (or maybe he believes that the Second Amendment doesn’t protect a real right at all).
As for Blumenthal’s assertion that “common sense gun safety measures” would be imperiled by the confirmation of Amy Coney Barrett to the Supreme Court, common sense is in the eye of the beholder, isn’t it? Senator Blumenthal may think it’s common sense to ban the sale and possession of the most-commonly sold centerfire rifle in the country today (as well as the most commonly owned ammunition magazines)in the name of public safety, but I know millions of Americans who disagree.
More importantly, our framework of government rests not on the ever-changing whims of the electorate, but on the Constitution. If you want to change that document, you can amend it, but you can’t simply pretend that the parts you don’t like are non-existent. Blumenthal’s real fear is that with Amy Coney Barrett on the Supreme Court, the judicial branch would serve as a real and substantive check on anti-gun activists and legislators and their unconstitutional efforts to deprive people of their full exercise of the right to keep and bear arms.
We’ll see how deeply Blumenthal delves into Second Amendment issues when he was a chance to question Amy Coney Barrett directly. Based on the talking points of Senate Democrats, I’d expect him to reserve most of his time to healthcare and the Affordable Care Act, but he’ll likely leave himself at least a few minutes for some grandstanding about gun control as well.