Experts: Barrett Nomination Could Revolutionize Gun Litigation

Amy Coney Barrett is President Donald Trump’s nominee to the Supreme Court and the Senate has agreed to hold confirmation hearings as soon as possible. That means there’s a very good chance that Barrett will be on the Supreme Court very soon.


We here at Bearing Arms have speculated that Barrett on the Court could be a gamechanger.

Of course, we’re not legal experts. We should probably at least listen to what many of them may have to say.

Legal scholars say Amy Coney Barrett’s judicial philosophy could settle legal stalemates and disagreements that have seen lower federal courts deliver a variety of rulings on gun rights.

Barrett’s adoption of what experts refer to as a “text, history and tradition” philosophy—which relies on the text and historic applications of the Second Amendment, rather than the applications of “balancing tests” of individual rights and government interest to determine whether or not a gun law is constitutional—could be revolutionary for Second Amendment cases.

“In practice, the Court’s adoption of the ‘text, history, and tradition’ test would mean a lot of previously settled circuit precedent gets unsettled,” Jacob D. Charles, executive director of Duke University’s Center for Firearms Law, told the Washington Free Beacon.

In 2019’s Kanter v. Barr, Barrett argued in a dissent that “all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right.” After studying founding-era documents, Barrett concluded that nonviolent felons should not be subject to the same gun restrictions that apply to violent criminals. Mark W. Smith, presidential scholar and senior fellow in law and public policy at the King’s College in New York City, told the Free Beacon the approach favored by Barrett is in stark contrast to the balancing tests lower courts have employed in the past.

“Balancing tests are favored by the liberal justices and left-leaning lower courts because they serve as an easy excuse for eliminating the right to possess and use firearms,” he said. “It allows liberal jurisdictions to invoke ‘public safety’ without any empirical support and to deny constitutional rights carte blanche. These balancing tests allow judges to pay lip service to the Second Amendment while eroding this most fundamental individual right.”


Now, let’s be clear. These settled cased are those that need to be unsettled badly.

This also would play a factor in cases that involved courts basically ignoring the Heller decision on things like assault weapons. Barrett on the Court could see assault weapon bans overturned finally and likely stop a potential President Biden from enacting most of his gun control schemes.

The balancing tests currently used by the lower courts are problematic because they’re not really tests, but excuses. It’s a way to justify stripping Americans of their civil liberties and pretend that it’s constitutional to do so.

It’s not.

Barrett may be able to push the Court to finally address this and put an end to the anti-gun shenanigans of these liberal lower courts.

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