Like Scalia, Amy Coney Barrett shares an ‘originalist’ view on Second Amendment | TheHill – The Hill
The Senate Judiciary Committee hearings for Judge Amy Coney BarrettAmy Coney BarrettLike Scalia, Amy Coney Barrett shares an 'originalist' view on Second Amendment Senators dial down rhetoric at Barrett hearing after 2018 Kavanaugh brawl Twitter reacts to Barrett misspeaking about approaching cases with an 'open wine': 'Me too, girl' MORE come as the Supreme Courts nascent Second Amendment jurisprudence is at an important inflection point. So far, the court has clearly held only that the Constitution protects the right to keep a handgun in ones home for self-protection. The most practically important questions that have not yet been answered have to do with carrying firearms in public. The justices have hinted that there is such a right, but they have not determined what limits on that right they will recognize, or how far legislatures may go in restricting it.
For the past 10 years, the Supreme Court has been dragging its feet by refusing to hear any cases that raise this issue. Several members of the court have protested against this inaction, and it looks as though the next justice may be able to get the court off the dime. If that turns out to be Barrett, we can expect her to provide an intelligent and faithful interpretation of the Constitution.
Such an approach is particularly important on this issue at this time because America has been experiencing an extraordinary plague of violent political unrest. Most of the riots and other forms of political violence in recent years have been connected to specific allegations of police misconduct and to broader claims about pervasive racial bias in the use of lethal force by police.
Most dramatically, the nation was swept this summer by mass protests after several incidents in which such bias was imputed to police officers who were involved in confrontations that turned violent. No one at the time could have known what mixture of truth and fiction there was in the assumptions made by those who took to the streets. Despite this uncertainty, and perhaps in part because of it, many of the demonstrations were marked by arson, looting, beatings and murders of innocent victims.
Most strikingly, some state and local governments were visibly tolerant of the rioters. Public officials discouraged or forbade the use of standard crowd-control measures, and in some cases prevented the police from taking any action to protect innocent bystanders or their property. One city has experienced nightly riots for months on end. Another simply surrendered an area within its legal jurisdiction to thugs who had begun by attacking a police station. In some cases, prosecutors were disinclined to enforce the law against individuals who had been arrested. Prominent politicians promoted the defunding of the police, and some jurisdictions took concrete steps in that direction. Violent crime spiked sharply in some places, probably in part because the police became less aggressive in enforcing the law.
Barrett was a law clerk for the late Justice Antonin Scalia, and she shares his originalist approach to constitutional interpretation. As it happens, Scalia wrote the seminal 2008 opinion inDistrict of Columbia v. Heller, which protects the right to keep a handgun in ones home. Last year, Barrett wrote a dissenting opinion in a Second Amendment case, which is even more proficient than Scalias.
InKanter v. Barr, the majority upheld a federal statute that imposed a lifetime firearms disability on a man who had been convicted of mail fraud. Barretts dissent thoroughly refuted a popular theory according to which the Founders thought the right to keep and bear arms is relinquished on conviction for any felony. She concluded that the historical evidence shows that legislatures at the time sought only to disarm classes of people who were considered dangerous.
But how much discretion should legislatures have in defining such classes? Barrett argued that a total and permanent deprivation of the right to possess arms would have to be substantially related to the prevention of violent crime, as well as closely tailored to that goal. She then showed that the governments evidence failed to demonstrate that mail fraud is a reliable predictor of future gun violence, and that the government presented no evidence that this particular convicted felon had shown any proclivity for violence.
Hellersignaled that the first places to look for the meaning of the Second Amendment are its text and the historical evidence that bears on how it was understood by those who enacted it. Barrett was faithful to that sensible teaching, as well as to the principle that definitive answers supplied by those sources are binding on the courts. But most questions wont be so easily answered. And when theyre not, judges have a great deal of discretion about the nature and degree of the burden they put on the government to justify infringements on the liberty of American citizens.
Barrett showed how to exercise that discretion by engaging in legal, rather than policy, analysis. HerKanterdissent is not the work of an ideologue. Rather, she conscientiously sought to respect what ScaliasHelleropinion called the interest balancing by the people that is reflected in the Second Amendment.
This summers civil unrest may be a prelude to a series of increasingly aggressive legislative disarmament efforts, which will call for careful and fearless review by the courts. Neither the Supreme Court nor most of the lower federal courts have recently exhibited much care or much courage in their approach to the Second Amendment. HerKanterdissent promises that a Justice Barrett would bring both of those virtues to her work, which would be good for the court, good for the Constitution, and good for American liberty.
Nelson Lund is a professor of Law at George Mason Universitys Antonin Scalia Law School.
More here:
Like Scalia, Amy Coney Barrett shares an 'originalist' view on Second Amendment | TheHill - The Hill
- Legal Adults, Limited Rights: The Second Amendment Fight For 1820-Year-Olds - concealedcarry.com - May 5th, 2025 [May 5th, 2025]
- Making the Fourth Amendment the New Second Amendment - The Assembly NC - May 5th, 2025 [May 5th, 2025]
- Federal Government Urges S. Ct. to Take Second Amendment Case - Reason Magazine - May 5th, 2025 [May 5th, 2025]
- Trumps Second 100 Days and the Second Amendment | An Official Journal Of The NRA - Americas 1st Freedom - May 5th, 2025 [May 5th, 2025]
- This Bill Doesnt Ban GunsIt Dismantles the Second Amendment Another Way - The Truth About Guns - May 5th, 2025 [May 5th, 2025]
- NRAs John Richardson admits he cant stand listening to Trump despite praising Second Amendment support - The Mirror US - April 30th, 2025 [April 30th, 2025]
- Trump administration says machine guns arent protected by Second Amendment - Washington Times - April 30th, 2025 [April 30th, 2025]
- Colorado Escalates its War on the Second Amendment : News Article - Independent Institute - April 25th, 2025 [April 25th, 2025]
- Stop the Second Amendment insanity | Letters to the editor - Sun Sentinel - April 25th, 2025 [April 25th, 2025]
- Labrador Backs DOJs Second Amendment Task Force, Joining Other States - Idaho Dispatch - April 25th, 2025 [April 25th, 2025]
- Voices of the Second Amendment Launches Live from NRA Annual Meetings & Exhibits - NRA Women - April 21st, 2025 [April 21st, 2025]
- Oswego Village Board approves second amendment of econoimic incentive agreement with Freddie's Off the Chain, increasing total grant funding to... - April 21st, 2025 [April 21st, 2025]
- Bills Protecting Veteran Second Amendment Rights Hit The House And Senate - The Truth About Guns - April 21st, 2025 [April 21st, 2025]
- Feenstra Leads Legislation to Protect Second Amendment Rights of Law-Abiding Renters and Tenants - Mix 107.3 KIOW - April 21st, 2025 [April 21st, 2025]
- Second Amendment advocate fires back against controversial gun bill: This is going to cost lives in the long run - MyNorthwest.com - April 3rd, 2025 [April 3rd, 2025]
- Restoration of Second Amendment Rights After They Are Lost - The Truth About Guns - April 3rd, 2025 [April 3rd, 2025]
- House Republicans Honor Second Amendment Promises, Advance Key Legislation - National Shooting Sports Foundation - March 28th, 2025 [March 28th, 2025]
- Congress poised to strengthen Second Amendment rights with national concealed carry reciprocity - Washington Times - March 28th, 2025 [March 28th, 2025]
- Senators team up to support proposed legislation protecting veterans Second Amendment rights - Washington Examiner - March 28th, 2025 [March 28th, 2025]
- Governor vetoes local lawmakers Second Amendment Protection Act bill - County 10 News - March 28th, 2025 [March 28th, 2025]
- Second Amendment Roundup: Court Seems Disposed to Rule for S&W and Against Mexico - Reason - March 13th, 2025 [March 13th, 2025]
- Governor Murphys Latest Plan is to Tax the Second Amendment Rights of New Jerseyans - Shore News Network - March 5th, 2025 [March 5th, 2025]
- Second Amendment Protection Act changes head to governor's desk - Wyoming Tribune - March 5th, 2025 [March 5th, 2025]
- WY: TELL THE GOVERNOR Support Second Amendment Protections! - Gun Owners of America - March 5th, 2025 [March 5th, 2025]
- Second Amendment Protection Act changes head to governor's desk - Wyoming News Now - March 5th, 2025 [March 5th, 2025]
- Gun Advocates Demand Results After Second Amendment Executive Order - MSN - March 5th, 2025 [March 5th, 2025]
- Could The Washington Post Go Pro-Second Amendment? | An Official Journal Of The NRA - America's 1st Freedom - March 1st, 2025 [March 1st, 2025]
- Second Amendment Concerns Raised After Long Island Village Bans All Gun and Ammo Sales - MSN - March 1st, 2025 [March 1st, 2025]
- Trumps bold move to strengthen the Second Amendment - Washington Times - February 27th, 2025 [February 27th, 2025]
- After York County shootings, its time to update the Second Amendment [letter] - LNP | LancasterOnline - February 27th, 2025 [February 27th, 2025]
- NSSF Praises South Dakotas Gov. Larry Rhoden for Protecting Second Amendment Privacy - National Shooting Sports Foundation - February 27th, 2025 [February 27th, 2025]
- Fear not the endless presidency: The Twenty-second Amendment - Convention of States Action - February 27th, 2025 [February 27th, 2025]
- New Florida bill would strengthen Second Amendment rights at colleges and universities - Campus Reform - February 27th, 2025 [February 27th, 2025]
- How USAID Funded the War on the Second Amendment | An Official Journal Of The NRA - America's 1st Freedom - February 14th, 2025 [February 14th, 2025]
- Bills affect homeless, addresses wildfires, makes OK a Second Amendment sanctuary state - Yahoo - February 14th, 2025 [February 14th, 2025]
- Trump Issues Executive Order: Protecting Second Amendment Rights Where are we now? - Firearms News - February 12th, 2025 [February 12th, 2025]
- Executive Order 14206Protecting Second Amendment Rights - The American Presidency Project - February 12th, 2025 [February 12th, 2025]
- Trump is protecting the Second Amendment - Washington Times - February 12th, 2025 [February 12th, 2025]
- Trump Signs Executive Order Strengthening Second Amendment | An Official Journal Of The NRA - American Hunter - February 12th, 2025 [February 12th, 2025]
- Executive Order Seeks to Protect Second Amendment After Prior Administration - Turning Point USA - February 12th, 2025 [February 12th, 2025]
- Executive Order on the Second Amendment, which doesn't need any help - Daily Kos - February 12th, 2025 [February 12th, 2025]
- NRA Statement on President Trumps Executive Order Protecting Second Amendment Rights - NRA Women - February 9th, 2025 [February 9th, 2025]
- President Trump signs executive order 'protecting Second Amendment rights' - Buckeye Firearms Association - February 9th, 2025 [February 9th, 2025]
- Trump starts unwinding Biden regulations that infringe on Second Amendment rights of Americans - Must Read Alaska - February 9th, 2025 [February 9th, 2025]
- White House Wields Executive Power to Bolster Second Amendment: - Hoodline - February 9th, 2025 [February 9th, 2025]
- DeSantis Second Amendment Summer is more about his aspirations than Floridas budget | Opinion - Miami Herald - February 5th, 2025 [February 5th, 2025]
- Dueling Gun Groups Strike Truce To Push Wyoming Second Amendment Rights Bill - Cowboy State Daily - February 5th, 2025 [February 5th, 2025]
- Trump AG Pick: I Am an Advocate for the Second Amendment, but I Will Enforce the Laws of the Land - The Reload - January 19th, 2025 [January 19th, 2025]
- Second Amendment advocates skeptical of Pam Bondi - Washington Examiner - January 19th, 2025 [January 19th, 2025]
- Federal Judges (Still) Have No Earthly Idea What to Do With the Supreme Courts Second Amendment Cases - Balls & Strikes - January 19th, 2025 [January 19th, 2025]
- Tuberville, Britt reintroduce pro-second amendment Constitutional Concealed Carry Reciprocity Act - Yellowhammer News - January 19th, 2025 [January 19th, 2025]
- Donald Trump Jr. says younger people are getting into the Second Amendment amid GrabAGun SPAC deal - Fox Business - January 9th, 2025 [January 9th, 2025]
- GrabAGun, a Mobile-Focused Online Firearms Retailer Defending the Second Amendment, to Become a Public Company through a Business Combination with... - January 9th, 2025 [January 9th, 2025]
- Secretary Gray Calls on Wyoming Legislature to Protect Second Amendment Rights by Repealing Gun Free Zones - Sheridan Media - January 9th, 2025 [January 9th, 2025]
- Bernstine Takes Oath of Office, Committed to Protecting Second Amendment Rights, Fighting Wasteful Spending - EllwoodCity.org - January 9th, 2025 [January 9th, 2025]
- NRA-ILA demonstrates its influence in advancing Second Amendment causes - Buckeye Firearms Association - December 18th, 2024 [December 18th, 2024]
- Availability of a second Amendment to the 2023 Universal Registration Document - Yahoo Finance - December 14th, 2024 [December 14th, 2024]
- Justices Thomas, Alito, and Gorsuch Signal Readiness to Revisit Second Amendment Licensing Disputes - USA Herald - December 14th, 2024 [December 14th, 2024]
- Supreme Court Passes On Chance To Correct Hawaii Ruling Finding Spirit Of Aloha Trumps Second Amendment - Daily Caller - December 10th, 2024 [December 10th, 2024]
- AG nominee Pam Bondi's mixed record on Second Amendment raises 'red flags' - Buckeye Firearms Association - December 8th, 2024 [December 8th, 2024]
- Nearly 100 Anti-Second Amendment Measures Proposed To Texas Legislature - Firearms News - December 8th, 2024 [December 8th, 2024]
- Sen. Cruz Takes Stand to Stop Mexico from Violating U.S. Constitution & Second Amendment - Texas Border Business - December 8th, 2024 [December 8th, 2024]
- Sen. Cruz Leads Bicameral Amicus Urging Supreme Court to Uphold American Sovereignty and the Second Amendment - TexasGOPVote - December 8th, 2024 [December 8th, 2024]
- The bill aims to protect Texans Second Amendment rights by blocking enforcement of extreme risk protective orders - The Dallas Express - December 8th, 2024 [December 8th, 2024]
- Trumps New Attorney General Pick Should Face Tough Questions at Confirmation. She Flouts the Second Amendment - The Stream - November 26th, 2024 [November 26th, 2024]
- Ames Moot Court Competition takes on the Second Amendment - Harvard Law School - November 26th, 2024 [November 26th, 2024]
- State Leaders Take Aim at the Second Amendment - The Dallas Express - November 26th, 2024 [November 26th, 2024]
- Trump's victory over Harris proves 'Second Amendment won,' gun rights groups say - Fox News - November 16th, 2024 [November 16th, 2024]
- Mecklenburg Co. Sheriff's Office stripping sober gun owners of their Second Amendment right - WCNC.com - November 16th, 2024 [November 16th, 2024]
- Where John Thune Stands on Gun Control and the Second Amendment - Guns.com - November 16th, 2024 [November 16th, 2024]
- Elections have consequences, particularly when it comes to the Second Amendment - Rome Sentinel - November 10th, 2024 [November 10th, 2024]
- Analysis: Can Arms in Common Use be Banned Under the Second Amendment? [Member Exclusive] - The Reload - November 2nd, 2024 [November 2nd, 2024]
- Where the Harris/Walz Ticket Stands on the Second Amendment - Catalyst - November 2nd, 2024 [November 2nd, 2024]
- Harris Claims She, Not Trump, Will Defend the Second Amendment | An Official Journal Of The NRA - America's 1st Freedom - November 2nd, 2024 [November 2nd, 2024]
- An NRA Shooting Sports Journal | Royce Gracie Speaks Out About NRA And The Second Amendment - Shooting Sports USA - October 29th, 2024 [October 29th, 2024]
- Future of SCOTUS and Second Amendment rights on the ballot - Buckeye Firearms Association - October 29th, 2024 [October 29th, 2024]
- A Second Amendment Rally Like No Other - MSN - October 29th, 2024 [October 29th, 2024]
- Second Amendment Voters Arent Buying Harriss Pandering But Theyre Glad She Feels Compelled to Try - National Review - October 29th, 2024 [October 29th, 2024]
- Elon Musk Gets to the Basis of the Second Amendment | An Official Journal Of The NRA - America's 1st Freedom - October 29th, 2024 [October 29th, 2024]
- Hovde and Baldwin on the Second Amendment and gun control - PBS Wisconsin - October 21st, 2024 [October 21st, 2024]