By Larry Keane
President Joe Biden’s nomination of Judge Ketanji Brown Jackson to replace retiring Justice Stephen Breyer gives him his first chance to put a lasting stamp on the U.S. Supreme Court. Judge Jackson, who was only recently elevated to the U.S. Court of Appeals for the D.C. Circuit, has authored just two opinions on the merits, both in the past month. Her judicial record tells us truly little about her views on the Second Amendment or about the firearm industry.
Unlike Justice Amy Coney Barrett, who openly told the U.S. Senate Judiciary Committee that her family is a gun-owning family and openly advocated for originalism on the court, Judge Jackson doesn’t offer similar insights. Justice Brett Kavanaugh dissented on a D.C. Court of Appeals decision to uphold a ban on most semiautomatic firearms and a firearm registration requirement in Washington, D.C. Justice Neil Gorsuch, an outdoorsman and hunter, was introduced as an originalist jurist and “very much in the mold” of the late Justice Antonin Scalia.
Judge Jackson would undeniably be paving a new path if she is confirmed. She would be the first African-American woman to serve on the Supreme Court. When it comes to gun rights, her judicial experience and philosophy are less obvious. Judge Jackson could be expected to be in the ideological mold of the justice she is to replace, Justice Breyer for whom she clerked from 1999-2000. When it comes to firearms and gun rights, Justice Breyer was certainly no ally of gun rights.
Justice Breyer dissented on Heller and MacDonald, and holds views that are hostile to individual Second Amendment rights. Justice Breyer once claimed the Founding Fathers intended for government to strictly regulate firearms, though no legislative evidence shows this. In fact, the first gun control laws were openly racist and intended to deny guns to slaves. The Atlantic, a liberal news publication, pointed out that in 1640, Virginia had laws on the books preventing Blacks from owning guns. In 1712, a law for a total ban on Black gun ownership was enacted to prevent slave revolts. Slave Codes were renamed Black Codes during the post-Civil War reconstruction era and those were racist laws designed to suppress recently freed Blacks.
Still, Judge Jackson’s judicial record affords no direct insights into how she might rule on Second Amendment-related or firearm industry-related cases. An opinion she authored in her eight months on the D.C. Court of Appeals was published just one day before her nomination. That case related to unions and the federal government. The closest case that Judge Jackson related to firearms was Baisden v. Barr, in which she dismissed the complaint of a convicted felon petitioning to reclaim gun rights. The plaintiff offered no evidence that he ever owned a firearm, obtained a permit, ever used, intended to use, or expressed a desire to possess a firearm prior to his conviction.
U.S. Sen. Tom Cotton directly asked Judge Jackson about the Second Amendment when she was nominated to the D.C. Court of Appeals. Her answer was similar to Justices Elena Kagan and Sonia Sotomayor, who both stated that they would be bound by Heller’s precedent. Little more was said.
Gun rights advocates would disagree that both Justices Kagan and Sotomayor respect individual gun rights, especially after hearing their questions to the pending New York State Rifle and Pistol Association v. Corlett hearing. Justice Kagan posed the question of whether Heller put a “stamp of approval” on certain gun control measures. Justice Sotomayor said she couldn’t “get past all that history” of gun regulations.
While Justice Barrett openly embraced her ideas on originalism and how that informs her judicial philosophy, Judge Jackson has been ambiguous on her answers of a “living Constitution” approach. Professor Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, wrote in The Hill that Judge Jackson told the courts she didn’t believe in the concept when nominated to the district court. Later, when she was nominated to the appellate court, she told the Senate she didn’t have the experience to make such interpretations as a judge.
Professor Turley was baffled by that response since it wasn’t a question of her signed opinions but her judicial opinion on how the Constitution should be interpreted. Judge Jackson has been overruled for judicial overreach. There’s proof she’s willing to engage in legislating from the bench when faced with questions she doesn’t like.
When President Biden nominated her last year to the Court of Appeals, the National Review wrote that Judge Jackson is, “not highly regarded as a judge” and was, “considered to have a middling reputation.” The article added that Judge Jackson has, “a striking record of reversals by the [Court of Appeals for the] D.C. Circuit—including by liberal judges—in her high-profile rulings.”
Professor Turley noted that as a district court judge she was reversed in 2018 by a unanimous decision by the U.S. Court of Appeals for the D.C. Circuit in a federal workers’ collective bargaining case based on lack of jurisdiction and again overruled in an immigration case in 2019 for judicial overreach.
Carrie Severino, President of Judicial Crisis Network, wrote for Fox News that Judge Jackson would be little more than a politician in robes for liberal special-interest causes. She said Judge Jackson’s nomination is, “paying back the liberal Arabella Advisors dark money network” that was instrumental in President Biden’s campaign. “Since it comports with a strategy of moderate rhetoric/radical substance, expect to hear little from Biden and his supporters about Judge Jackson’s past advocacy for terrorists, softness on crime, upholding racial preferences, hostility toward pro-lifers, and reversed decisions involving Trump-era policies.”
There’s nothing to indicate that Judge Jackson will strictly interpret the Constitution. She will be what President Biden wants – a secure replacement for Justice Breyer. When it comes to gun rights and the industry, that’s what America can expect. Judge Jackson will be a solid vote against the Second Amendment and the firearm industry.
There’s just one other thing that won’t change. Should Judge Jackson be confirmed, the composition of the Supreme Court remains the same, currently a 6-3 conservative majority.