Amy Coney Barrett, originalism, and the Second Amendment
By: William Connell Cawthon Jr.
Tags: Second Amendment, Supreme Court, Gun Control, Amy Coney Barrett, Guns

Amy Coney Barrett, originalism, and the Second Amendment

Madame Justice Barrett may channel the spirit of Antonin Scalia, one of her mentors. Image copyright © 2020 Bill Cawthon. All rights reserved.

Judge Amy Coney Barrett is now Madame Justice Barrett, the newest member of the Supreme Court. She joins Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas on the conservative side of the bench. Associate Justice Thomas is the one who administered the judicial oath of office, the final step needed for her to take her seat on the bench.

A lot of people consider Chief Justice John Roberts to be a conservative and there is a lot of talk about a 6–3 conservative majority, but those people and such talk doesn’t include gun owners. It’s widely believed that the decisions in District of Columbia v. Heller and McDonald v. Chicago were watered down to gain Roberts’ agreement and the decision to moot the New York State Rifle and Pistol Association’s lawsuit against New York City may well have come about because Alito, Gorsuch, Kavanaugh, and Thomas felt Roberts wouldn’t sign off on any ruling that wasn’t so narrowly focused it would have been worthless. After the ruling on the New York Case, the court passed on ten other Second Amendment cases for this session, many of which raised important issues that have begged for Supreme Court review for years.

With Justice Barrett on the bench, the conservatives not only have the needed votes to grant certiorari to Second Amendment cases, the votes would be there for a majority ruling. If Roberts joins the conservatives, he has the right to pen the opinion; it he joins the dissent, Thomas writes the opinion as senior judge among the majority.

This could be huge. Thomas has long held the belief that the right to keep and bear arms should be recognized as being among the privileges and immunities of the American citizen instead of merely being protected by case law. This would put them on equal footing with the freedom of speech, freedom of the press, and other civil liberties.

Why is this huge? By definition, a civil liberty cannot be licensed. That would turn it into a privilege that can be granted or withheld at the government’s pleasure, which is already forbidden to the federal government. By determining the right to keep and bear arms is one of the privileges and immunities, it become forbidden to the states, as well.

[Comments about drivers licenses will be ignored as they demonstrate the commenter’s ignorance about civil rights, civil liberties, and drivers licenses.]

This would mean that state requirements for a license or permit to possess or purchase firearms could be declared unconstitutional.

While this would produce a reaction not unlike that of scorched cats, it’s not really that big a deal. It would invalidate state possession laws only in Illinois, Massachusetts, and New York and purchase laws in Connecticut, the District of Columbia, Hawaii, Illinois, Iowa (handguns only), Maryland, Massachusetts, Michigan (handguns only), Minnesota (handguns only), Nebraska (handguns only), New Jersey, New York, North Carolina, and Rhode Island. Forty-seven state do not require a permit to possess a firearm and thirty-seven states don’t require a permit to purchase any type of firearm.

The Scalia opinion in District of Columbia v. Heller left a number of questions unanswered and the lack of any Supreme Court action in Second Amendment cases since McDonald v. Chicago allowed, if not encouraged, legislatures and lower courts to enact and uphold restrictions that exceeded some of the standards set in the Heller decision.

But Barrett’s dissent on the restoration of gun rights to non-violent ex-felons might be a sign she is willing to carry originalism farther than Scalia and be part of the answer to those knotty questions.

Licenses to carry could also be in some trouble, thanks to the state of Hawaii.

Hawaii has a permit to carry; they just don’t issue them to anyone except security guards and armored car crews. George Young sued the state, saying the policy violated his Second Amendment right to bear arms. A district court upheld the state’s position but the Court of Appeals for the Ninth Circuit reversed the lower court’s ruling, saying that not only was Hawaii’s law unconstitutional but that the rights covered by Second Amendment included the right to bear arms for lawful purposes, including self-defense. If concealed-carry was to be regulated, open carry (firearm visible) had to be the covered right. This means open carry restrictions would be subject to strict scrutiny, not on the sliding scale that has become so popular in judicial rulings.

While this might sound like the end of the world to some readers on Medium, it’s not. Subject to restrictions in some areas, citizens in 31 states can already openly carry a handgun without a license or permit. Citizens in 16 of those states can carry a handgun openly or concealed without a permit.

Restrictions on magazine capacities could also be tossed, this time thanks to California and the persistence of Attorney General Xavier Becerra. California’s ban on possession of magazines capable of holding more than ten cartridges was ruled unconstitutional on two grounds by a federal district judge in the Ninth Circuit, so AG Becerra appealed to the Court of Appeals for the Circuit, which had traditionally been sympathetic to gun control. The appellate court upheld the district court’s ruling and Becerra is now waiting to hear if the Ninth Circuit will grant an en banc review. If the court turns him down or if the en banc panel upholds the appellate ruling, Becerra has to decide whether to give up the California laws or roll the dice in Washington. Reminds me of Clint Eastwood’s challenge in Dirty Harry (it’s hard to believe that movie will be 50 years old next year).

And that is what’s riding on this: if the Supreme Court affirms the appellate decision, magazine cap laws are out the window in every state in which they have been enacted.

Challenges to restrictions on rifles such as the AR-15 could be in trouble, as well. Since Americans own an estimated 17 million of these rifles, they will easily meet the “in common use” standard set out in the Heller decision.

Contrary to what some may believe, Scalia said only that M16 rifles could be regulated, even though they would be not only permissible but even required by Justice James McReynolds’ opinion in U.S. v. Miller. Scalia was an avid hunter; he knew what the difference is between an M16 and an AR-15, even beyond the fact that one is an assault rifle and one isn’t.

A bill like the Bipartisan Background Check of 2019 could also be doomed to an early grave. Not because of the background checks themselves; Congress does not have the constitutional power to impose them on a nationwide basis. The proposed law not only exceeded Congress’ authority under the Commerce Clause, it stretched into forbidden territory by proposing to regulate transfers that didn’t involve commerce at all. States, which have more regulatory power than the federal government in this type of issue, can still impose them.

It’s even possible that a more originalist court could rein in Congress’ self-expansion of its commerce clause powers that has been ongoing since the decision in Wickard v. Filburn in the 1940s. When something leaves the channels of commerce between the states, or was never in them to begin with, the state has regulatory authority, not the federal government.

Since red flag laws have the effect of stripping a citizen of their rights without due process, which violates the Fifth Amendment, it’s a reasonable possibility that they could also be in jeopardy. Since they haven’t shown a positive impact on the suicide rate and they have already been misused, resulting in one death, that’s probably not much of a loss.

I am not saying all of this will happen. By all accounts, Justice Barrett is a brilliant jurist and scrupulous in the application of the law: I have every reason to believe she will judge cases presented to the court fairly and with an eye toward the need for intervention by the court.

But I am hopeful.