During Barrett’s confirmation hearings, several Senate Democrats tried to paint her as a “Second Amendment extremist.” This was hardly surprising, since these senators have never met a gun-control law they thought was unconstitutional, and find any view to be “extreme” if it prevents them from enacting more gun-control measures, no matter how sweeping or restrictive.
“I spent a lot of time in that opinion looking at the history of the Second Amendment, and looking at the Supreme Court’s cases, and so the way in which I would approach the review of gun regulation is in the same way, to look very carefully at the text, to look very carefully at what the original meaning was,” said Barrett.
In the end, the U.S. Senate confirmed Barrett by a vote of 52-48, and she became the 115th U.S. Supreme Court justice—a tremendous victory for originalism in general, and for Second Amendment advocates in particular.
While Justice Barrett rightly would not pre-judge Second Amendment cases not yet before her, we do have a fair bit of insight into how she would likely analyze them.
First, because Barrett is a committed originalist, her record shows that she will not attempt to arbitrarily “update” or “fix” the meaning of the Second Amendment in order to accommodate her own policy preferences, or to water down protections she does not personally think should exist; this is a common problem among judges who prefer, despite all the evidence, not to view the Second Amendment as an individual right.
As Barrett herself said during the confirmation hearings: “Judges can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns.’ ... and walk in like a royal queen and impose their will on the world.”
We also know that the one time Justice Barrett has analyzed a Second Amendment case—a dissent she wrote as a Seventh Circuit judge—she was true to those very principles.
That dissent, in Kanter v. Barr, provides important insight into Justice Barrett’s approach to Second Amendment cases. It is also an excellent example of originalism in action. The case involved a federal statute that effectively imposed a lifetime revocation on the petitioner’s right to keep and bear arms, based entirely on his previous conviction for a single count of mail fraud.
The two-judge majority upheld this lifetime ban, despite the fact that the government agreed the individual was not—and never had been—a threat to himself or to the public. In their view, the law was “substantially related to an important government interest,” and that was sufficient to survive intermediate scrutiny.
Barrett’s dissent, however, delved deeply into the Second Amendment’s text, history and tradition. Contrary to the mischaracterization by Senate Democrats and other gun-control advocates, she did not conclude that violent criminals could not be disarmed. Rather, she recognized that, historically, the amendment limited the government’s authority to disarm citizens to situations where individuals were, unlike Kanter, actually dangerous.
As I’ve written elsewhere, this is not some extreme, outlandish position. It is, in fact, the position that the United States itself took until the 1960s, which is the first time that the federal government’s firearms prohibitions were extended to include nonviolent felons, as opposed to violent felons only.
Many Second Amendment advocates might recall, with some chagrin, that the U.S. Supreme Court has declined to take up a meaningful Second Amendment case for over a decade, essentially leaving lower courts to run amok over its precedent in District of Columbia v. Heller and McDonald v. Chicago. With the addition of Justice Barrett, however, there are now five justices who have evidenced a desire to take up such a case in the near future. What case might that be, and when could we expect it to make its way to the Court?
The U.S. Supreme Court does not currently have any Second Amendment cases on its docket, but there is still plenty of time left for the Court to take one up this term, which began in October and runs through a good part of June. Of course, the Court can’t just reach down and pick a case of its choosing. It has to wait for a losing party to appeal a Circuit Court decision.
The best candidate is likely New York State Rifle & Pistol Association v. Beach, where the Second Circuit upheld New York’s “may-issue” carry license regime last summer. Other possible candidates are a pair of cases currently before the Ninth Circuit—Young v. Hawaii and Duncan v. Becerra. Young challenges Hawaii’s de-facto prohibition on public carry for most law-abiding citizens, while Duncan challenges California’s ban on magazines that hold more than 10 rounds of ammunition.
There are several other interesting cases pending in the lower courts, such as Hirschfeld v. ATF in the Fourth Circuit, challenging the federal prohibition on the sale of handguns to individuals under the age of 21, and Rhode v. Becerra in the Ninth Circuit, challenging California’s new law mandating background checks for ammunition purchases; however, it seems unlikely that the U.S. Supreme Court would decide either of these issues without first addressing the more foundational questions presented in Young or Duncan.
If the Court does take up a Second Amendment case, expect Justice Barrett to analyze it using a similar method to the one she employed in her Kanter dissent—with a heavy emphasis on the text, history and tradition of the Second Amendment. In the end, if she follows through with this approach, it is almost certain that she (and presumably at least four other justices) will find that the Second Amendment cannot support “good-cause” permitting or “assault-weapon” bans.
We’ve waited for 10 long years for the U.S. Supreme Court to push back on legal assaults against our Second Amendment rights. It looks like, with Justice Barrett now on the bench, we may not be waiting much longer.
Amy Swearer is a Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.