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Michael Swartz / October 16, 2020

Judge Barrett and the Second Amendment

A recent Seventh Circuit case gives us a window into Barrett’s views on the right to bear arms.

We’ve been beating this drum for quite a while now, but the just-completed Senate testimony of Supreme Court nominee Amy Coney Barrett reminds us that the High Court has let a fair number of Second Amendment cases go by the boards since the Heller decision 12 years ago.

Having testified before the Senate that she would stick to the “original meaning” of the Second Amendment and that “its original public meaning, not the intent of any particular drafter” is what’s important, Barrett saw the Left zero in on one particular case she heard as part of the Seventh Circuit.

In Kanter v. Barr, Barrett was the lone dissenter in a case where the plaintiff, convicted in a nonviolent felony fraud case, sued to regain the right to bear arms he’d lost due to that conviction. To open her dissent, Barrett explained, “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. 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. In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

Because Rickey Kanter was previously convicted of a felony — even one as far removed from violence as mail fraud — it was enough for the state of Wisconsin to revoke his rights, according to the two judges who upheld the district court decision (both Ronald Reagan appointees, interestingly enough).

In light of Barrett’s well-argued and thoughtful opinion, gun-control advocates are working hard to stop her confirmation. “The [Kanter] opinion is very revelatory,” explained UCLA law professor and author Adam Winkler. “It really shows that she has a very expansive view of gun rights, likely one even broader than Justice Antonin Scalia.” Taking the next illogical, emotion-based, slippery-slope step, Winkler whined, “Does that mean that there’s a constitutional right to have machine guns because there’s no strong historical precedent for banning those weapons?”

Reporting on these “grave concerns” of the gun-grabbers, NPR’s Carrie Johnson agreed, adding, “Scores of federal judges have upheld that blanket ban for people convicted of felonies after balancing the Second Amendment against public safety.”

Here, we’d note that throughout our nation’s history, scores of federal judges have also misinterpreted the common-sense language of the Constitution.

A more clear-headed analyst might argue, as The Heritage Foundation’s Amy Swearer did, “If Barrett is ‘extreme’ with respect to the right to keep and bear arms, it’s only because the Constitution itself offers an ‘extreme’ protection of that right.” Swearer continued, “As an originalist, she would not change the meaning or extent of that protection just because gun control activists — or any other activists — wish it to be so.”

The language within our Second Amendment is very plain: “shall not be infringed” means exactly what it says. “We the People” can be the “well-regulated militia” if we’re so inclined, but it’s not required that we be one for the Second Amendment to remain in effect.

Perhaps Justice Clarence Thomas will get his wish — the one he (most recently expressed in the case of Rogers v. Grewal) — and we’ll begin hearing Second Amendment cases at the Supreme Court again after a long hiatus. With a plethora of new restrictions such as accessory bans and “red flag” laws having been introduced, clarification is long overdue.

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