From the National Shooting Sports Foundation
President Donald Trump’s nomination of Judge Amy Coney Barrett is again delivering on his promise to return the judiciary to jurists who will faithfully interpret law as it is written. The president delivered on his original campaign promise to nominate justices to the U.S. Supreme Court “in the mold of Justice Scalia.”
“Amy Coney Barrett will decide cases based on the text of the Constitution as written,” President Trump said of his nominee in the White House Rose Garden. “As Amy has said being a judge takes courage, you are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you. That is exactly what Judge Barrett will do on the U.S. Supreme Court.”
President Trump broke campaign precedent in 2016 when he released his original list of 11 possible nominees he said he would consider to fill a Supreme Court vacancy. He added 10 additional names just months later, cementing his commitment to voters he would deliver nominations of justices who interpreted the Constitution in the same originalist manner as the last Justice Antonin Scalia.
“I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution,” President Trump said in 2016.
He delivered on the promise with the nomination of Justice Neil Gorsuch. The president updated that list in 2017, including the names of Justice Brett Kavanaugh and Judge Barrett. Justice Kavanaugh was nominated to replace the retiring Justice Anthony Kennedy. Over the weekend, President Trump made his third nomination to fill a Supreme Court vacancy, again delivering on his campaign promise to submit nominations from the list of jurists presented to voters.
In her Rose Garden remarks, Judge Barrett affirmed her commitment to the Constitution as it is written.
“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate,” Judge Barrett explained. “His judicial philosophy is mine too. A judge must apply the law as written. Judges are not policy makers and they must be resolute in setting aside any policy views they might hold.”
The 2016 election hinged on the Supreme Court vacancy following the death of Justice Scalia, who authored the landmark 2008 Heller decision that affirmed the Second Amendment protects pre-existing fundamental civil rights of individuals. Protecting the holding in Heller was critical then – as it is now. Democratic presidential nominee Hillary Clinton attempted to equivocate her disdain for the Court’s decision after the question was posed in a presidential debate.
“I disagreed with the way the court applied the Second Amendment in that case because what the District of Columbia was trying to do was to protect toddlers from guns,” Clinton said. “And so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others.”
She was roundly criticized for her answer. That lesson, though, is lost on former Vice President Joe Biden, who last year explained in a New Hampshire town hall, “If I were on the court I wouldn’t have made the same ruling. OK, that’s number one.”
Biden attempted to redefine the Second Amendment to his own views. He interjected his own opinions into what is actually written in the Bill of Rights, using a revisionist lens.
“I think that the fundamental argument is the reason that was given as a right because we needed to be able to muster people to deal with an enemy called Great Britain we were fighting in a war.”
That explanation, however, is completely at odds with the Bill of Rights and what Justice Scalia explained so clearly in his majority opinion.
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home,” Justice Scalia wrote. He further explained that the right isn’t derived from government, as Biden would suggest, but exists outside of the whims of a government to grant or take away. “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
Judge Barrett clerked for Justice Scalia in 1998-1999. It shouldn’t come as a surprise that her understanding of fundamental rights, especially those included in the Second Amendment, follow this decision.
Judge Barrett authored a dissenting opinion in Kanter v Barr last year, a Second Amendment challenge to the categorical ban on felons possessing firearms filed by Rickey I. Kanter who pleaded guilty to a non-violent felony (one count of mail fraud). Kanter argued the ban to the extent it applies to him, a non-violent felon, violates his Second Amendment rights.
The Seventh Circuit panel rejected Kanter’s challenge upholding the categorical ban, even if the person poses no public safety threat. Judge Barrett disagreed with her colleagues. In a well-reasoned opinion reminiscent of her mentor Justice Scalia, she searched founding-era laws for evidence of any laws explicitly imposing or authorizing such a categorical ban.
“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Judge Barrett wrote. “Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.”
Later she wrote, “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.” The majority in Kanter, by upholding the categorical ban as it applies to Mr. Kanter, “treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
Importantly, Judge Barrett’s dissenting opinion shows that she jealously guards fundamental individual rights, including gun rights, and requires the government to shoulder the burden of proof as to why that right should be restricted. It demonstrates her judicial philosophy of how to interpret the law.
The firearm industry holds originalism among jurists in deep regard. Originalism theory explains that the law means what it says, just as it is written, in context with the meaning of the words used at the time. Judge Barrett spoke of two types of originalism. First is “original intent” originalism and second is “original public meaning” originalism.
The first category – original intent – emerged in the 1980s, when the Supreme Court relied on “living Constitutionalism,” or way to interpret law as jurists applied it to contemporary understanding. The problem is those standards shift over time, giving the law no foundation.
“Original intent originalism was really an [exercise] of trying to think your way into the minds of the framers and say ‘How would James Madison approach this problem?’ or ‘How would Thomas Jefferson approach this problem?’” she said.
She acknowledged critics would object that the law shouldn’t be bound into the Framers’ thoughts, some of which were never included in the Constitution. That’s where original public meaning provides the safety rails.
“The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today,” she said. “Making this distinction between interpretation and construction has had the effect of making originalism a pretty wide tent. Now, in its most recent and modern iteration, originalism has attracted people of all different political stripes.”
Judge Barrett rejected criticism that originalism is too constricting to allow jurists to address modern dilemmas, some of which couldn’t have been anticipated by the Constitution’s Framers.
“In some respects we should look at that [inflexibility] as a good thing. … It’s a floor, we don’t want to go below this,” she said. “We don’t want an entirely flexible Constitution because then we would have no constitutional protection at all.”
Judge Barrett’s confirmation is already heating up to be a partisan slog. Many of the arguments that will be presented have nothing to do with guns or Second Amendment rights, including accusations of adherence to religious tenets. That was already apparent in her confirmation to the U.S. Court of Appeals to the Seventh Circuit, when U.S. Sen. Dianne Feinstein (D-Calif.) unconstitutionally applied a religious test to her appointment by saying, “… the dogma lives loudly in you.”
Judge Barrett was approved to the bench by the Senate, in a 55–43 vote that included three Democratic senators. This confirmation will be no less contentious, but no less vital to preserve Second Amendment rights for all Americans.