By Larry Keane
Foes against U.S. Supreme Court nominee Judge Amy Coney Barrett will line up this week to disparage only the fifth woman nominated to the nation’s highest court. The test balloons have been floated, including attacks on her faith, her family and now, predictably, her view on gun rights.
Her foes don’t fear Judge Barrett. They fear the law.
They just know Judge Barrett will follow it. She’s vowed to faithfully apply the law as it’s written, not to twist it to a pre-determined end to satisfy a political agenda.
The gun control cabal showed their cards. Over the weekend, U.S. Sen. Chris Coons (D-Del.) told Chris Wallace on Fox News Sunday, “I’m going to be laying out the ways in which Judge Barrett’s views, her views on reaching back and reconsidering and overturning long settled precedent are not just extreme, they’re disqualifying.”
Sen. Coons went as far as to say President Donald Trump was attempting “court packing” by fulfilling his constitutional duty to nominate an appointee to fill a vacancy on the Supreme Court. Yet, Sen. Coons was silent on former Vice President Joe Biden’s refusal to say what he would do with Democratic demands to pack the court after the election, even after Biden repeatedly dodged questions of whether voters deserve to know his intentions on court packing.
“No they don’t….” Biden said. “I’m not gonna play his game, he’d love me to talk about, and I’ve already said something on court packing, he’d love that to be the discussion instead of what he’s doing now.”
Judge Barrett’s opening statement to the Senate Judiciary Committee emphasized her commitment to originalism or interpreting law as it was written.
“It was the content of Justice Scalia’s reasoning that shaped me,” Judge Barrett’s statement reads. “His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were. Sometimes that approach meant reaching results that he did not like.”
She added, “I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written. And I believe I can serve my country by playing that role.”
Judge Barrett’s dissent on Kanter v Barr, in which she disagreed with the U.S. Court of Appeals for the Seventh Circuit, quoted Justice Thomas Alito’s opinion in McDonald v Chicago, noting the court “treats the Second Amendment as a second-class right.” This is strikingly similar language used by Justices Clarence Thomas and Neil Gorsuch when they vented their frustration at the Supreme Court’s refusal to grant review in Peruta v California in 2017 and wrote that it “reflects a distressing trend: their treatment of the Second Amendment as a disfavored right.”
Their Worst Fear
A fifth Supreme Court justice that is ready and willing to apply the Second Amendment as it is written is a frightening scenario for gun control advocates. It’s not that gun control fears Amy Coney Barrett. They fear that Judge Amy Coney Barrett respects the law. Shannon Watts, who heads the billionaire-gun control mogul Michael Bloomberg’s gun control enterprise Moms Demand Action, melted down at the idea that Judge Barrett would examine legal text and commit to following the law when deciding Second Amendment opinions and any other cases. Kris Brown, of the gun control group Brady United Against Gun Violence, told NPR she had “grave concerns” of Judge Barrett’s commitment to law over ideology.
CNN reported that Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, said the seating of Judge Barrett to the Supreme Court could usher in a renaissance of Second Amendment cases, despite the Court rejecting 10 pending reviews earlier this year.
“It seems likely that the confirmation of Judge Barrett would remove that uncertainty and open the pipeline to a flurry of cases, perhaps ranging from the constitutionality of criminal [non-violent] felon-in-possession statutes to large-capacity magazine bans,” Vladeck explained.
There is no shortage of cases working their way to the Supreme Court. Two cases are pending review in California, one at the U.S. Court of Appeals for the Ninth Circuit, that could have profound impacts. Duncan v Becerra challenges California’s ban on standard capacity magazines, a law which was struck down by District Court Judge Roger Benitez and upheld when appealed by California’s Democratic Attorney General Xavier Becerra. The other, Miller v Becerra, challenges California’s ban on modern sporting rifles (MSRs). Judge Benitez denied Attorney General Becerra’s motion to dismiss that case, which will move forward and be heard. Judge Benitez wrote of the law banning MSRs in his order denying dismissal.
“If ever the existence of a state statute had a chilling effect on the exercise of a constitutional right, this is it.”
Judge Barrett’s opponents don’t fear her. They fear the law and her commitment to it.