By Larry Keane
Judge Amy Coney Barrett showed the nation several things for which she won’t apologize during her nomination hearings. She won’t apologize for her keen intellect, her dedication to originalist interpretation of the law and she won’t apologize for being a gun owner.
Senate Judiciary Chairman Lindsey Graham (R-S.C.) quickly got to the point on gun rights.
“Okay. So when it comes to your personal views about this topic, do you own a gun?” he asked.
“We do own a gun,” Judge Barrett replied.
“Okay. All right. Do you think you could fairly decide a case even though you own a gun?” Sen. Graham continued.
“Yes,” she said.
With that, Judge Barrett told the committee and America that she doesn’t view the Second Amendment as a matter of rhetorical legal debate. Judge Barrett is a gun owner. She exercises her right to keep and bear arms. She also confirmed to Sen. Graham that Heller affirmed an individual’s right to keep and bear and that if a state or local government passed a law contrary to that finding, the Supreme Court would be required to hear that case if the appeals made it all the way up.
Troubling Gun Rights
Sen. Dianne Feinstein (D-Calif.) questioned Judge Barrett on gun ownership especially her dissent in Kanter v Barr where she argued the U.S. Court of Appeals for the Seventh Circuit was wrong for denying a nonviolent felon gun rights based in the original text of the Second Amendment and gun laws at the nation’s founding. Sen. Feinstein posed her question, noting, “…there’s been a troubling spike in gun sales. Americans bought approximately two million guns this past March.”
“I think what I can say is that my opinion in Kanter shows how I approach questions as a matter of judicial philosophy,” Judge Barrett explained. “I mean, 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 that same way, to look very carefully at the text, to look carefully at what the original meaning was. That was the method that both the majority and dissent in Heller took. So, I promise that I would come to that with an open mind, applying the law as I could best determine it.”
In fact, Judge Barrett chose a Second Amendment case, her dissent in Kanter v Barr, as the most significant case upon which she was asked to decide in a 65-page questionnaire provided to the Senate Judiciary Committee before the hearings.
“Looking to Founding-era history, I explained that legislatures have the power to prohibit dangerous people from possessing guns, but that power extends only to people who are dangerous, not to nonviolent felons like Mr. Kanter,” she wrote in her questionnaire response.
Judge Barrett later explained to Sen. Feinstein in her questions that her application of the Second Amendment is indicative of her belief in originalism. She explained that the law is written as it is for a reason and that judges can’t presuppose or interject their personal biases into written law.
“What I can say is that my opinion and Kanter shows my judicial philosophy,” Judge Barrett said. “I spend a lot of time looking at the history of the Second Amendment and Supreme Court cases. The way in which I would approach the review of gun regulations is in the same way. To look very carefully at the text, to look at what the original meaning was. I promise I would come to that with an open mind, applying the law as I can best determine it.”
Judge Barrett left many of the U.S. senators slack-jawed. She didn’t take the bait and simply outpaced them when it came to understanding of the law. Sen. Dick Durbin (D-Ill.) made a ham-fisted attempt to pin Judge Barrett to specific definitions of the Second Amendment and her judicial philosophy or originalism.
“I’m not going to go so far back in history, but I’m going to take you back in history for a moment, and note that when that Second Amendment was written, and you did the analysis of it, we were talking about the likelihood that a person could purchase a muzzle loading musket,” Sen. Durbin said.
But Sen. Durbin was purposefully misstating the Second Amendment. The amendment doesn’t include “muzzle loading muskets.” It says “arms.” He was attempting to pin literalism on Judge Barrett and not originalism. Sen. Durbin was purposefully disingenuous to box in the Second Amendment to a strict 18th Century view of the technology, despite the rifles of the time being military arms, Kentucky Long Rifles capable of shooting accurately to 300 yards and multi-shot firearms were invented and in existence at the time the Bill of Rights was drafted.
Further, Judge Barrett left some senators completely flat-footed in the understanding of what her role would be on the bench and what the senator’s job is in the legislature. She was asked time and again, if she would commit herself to specific policy positions, and not just those confined to gun rights. She explained to Sen. Graham that’s not judge’s role.
“Judges can’t just wake up one day and say ‘I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion.’ and walk in like a royal queen and impose their will on the world,” Judge Barrett explained.
Sen. Ted Cruz (R-Texas) offered her the opportunity to confirm to the audience of lawmakers that they, in fact, create laws and set policy. Judges decide if those policies are lawful.
“Many Democratic members of this committee seem to be treating this hearing as a policy hearing on what’s good healthcare policy, what’s good gun policy, what’s good voting rights policy,” Sen. Cruz said. “Judge Barrett, in your view, is it the responsibility of a federal judge to implement policy positions that they might happen to agree with?”
“That’s your job, not a judge’s,” Judge Barrett said.
Lawrence Keane is the Senior Vice President and General Counsel for the National Shooting Sports Foundation, the firearm industry trade association.