As the Senate Judiciary Committee began hearings Monday on the nomination of Judge Amy Coney Barrett to the Supreme Court, much of the attention focused on whether the committee should even be considering her at this late date, with so many Americans already casting ballots in elections that could shift control of the White House and Congress. There was widespread interest, too, in how Barrett would handle issues already before the court or potentially soon to be there, including challenges to the Affordable Care Act and the results of the November elections.
One issue flying under the radar is gun control. It’s been more than a decade since the Supreme Court has taken up a significant Second Amendment case – largely, court observers agree, because the four conservative associate justices worried that they wouldn’t be able to persuade Chief Justice John Roberts to vote with them to expand the rights of gun ownership.
If Barrett wins Senate approval to replace the late liberal Justice Ruth Bader Ginsburg, the conservatives might just gain that fifth vote. And that could be exceedingly dangerous for a country already awash in guns, potentially undermining efforts of California, New York and other states to overlay some measure of sanity on access to and use of firearms.
The Supreme Court previously embraced the notion that the Second Amendment referred to the rights of states to maintain militias, which consisted of individuals who brought their guns with them in the event the state called the militia into service. That changed with the 2008 District of Columbia v. Heller decision, written by a conservative icon, Justice Antonin Scalia (invoking a misreading of the historical role of militias). In that case, the court held for the first time that the Second Amendment conferred a constitutional right to keep a firearm in the home for purposes of self-defense.
But it wasn’t an absolute right, the court held. Government has a compelling interest in regulating who has access to firearms, Scalia wrote, pointedly adding that “nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
A couple of years later, the court ruled in McDonald v. Chicago that the Heller decision applied to state laws as well as federal, but since then it has declined to accept cases that might clarify other issues, such as whether the court believes the right to have a firearm exists outside the home. (It took one case last year, then abandoned it as moot after the New York law at issue was changed.)
The Heller decision was wrongly decided, in our view, but the likelihood that this court will undo it is astronomically small. More likely, with Barrett aboard, is that the court will change the way it assesses gun regulations, opening the door for more successful challenges by gun rights advocates, many of whom take a hard-line approach that the Second Amendment guarantees just about anyone in the country the right to own and carry a gun any time they want.
Barrett didn’t mention the Second Amendment in her opening statement Monday before the Judiciary Committee. And while sitting on the 7th Circuit Court of Appeals, Barrett considered only one Second Amendment case, writing an arcane but important dissent in Kanter v. Barr, a 2-1 case last year.
Since the Heller decision, lower federal courts have measured the constitutionality of gun restrictions by looking at whether the restriction in dispute achieved an important government objective. If the evidence showed that it did, the courts have held, restrictions were lawful even if they impinged on someone’s ability to buy or carry a weapon.
Barrett’s dissent embraces a broader view of Second Amendment rights that suggests she subscribes to the “text, history and tradition” test to determine whether there is a historical precedent for a challenged gun law. If there’s no precedent, then the restriction is unconstitutional – a theory that could imperil such modern gun controls as mandatory background checks, permits to carry a firearm in public and bans on large-capacity magazines.
But when do history and tradition start? Gun laws have always been part of American jurisprudence. So while Barrett’s ascension to the court will likely shift the balance toward loosening gun restrictions, it’s unclear how far she and the court might go.
Ultimately, though, loosening restrictions or barring innovative new controls on access to firearms would move the country in the wrong direction. We know that the presence of firearms in the home increases the likelihood they will be used against someone in the household. We have seen the incendiary effect they have when protesters arrive at demonstrations with military-style rifles slung over their shoulders. Accidental deaths and suicides run higher in jurisdictions with the fewest restrictions on gun ownership. That’s all part of the history we would hope even a conservative court would contemplate as it holds the fate of so many people in its hands.
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