Barrett On the Court Means Another Second Amendment Case is a Matter of When, Not If

Supreme Court nominee Amy Coney Barrett testifies during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Oct. 13, 2020. (Leah Millis/Pool via AP)

Josh Blackman, a professor at the South Texas College of Law Houston, said with Justice Barrett on the court could make another major ruling a matter of when, not if.

“I think Justice Barrett would push the court to take one of these cases,” Mr. Blackman said. “[Justice] Roberts can’t be a wuss any more — he’s going to have to go along.” …

Mr. Blackman said, though, that it could take years for a newly filed case to work its way up.

He said the court might be more likely to take up a case that turns on a question of gun rights for the mentally ill or incapacitated, rather than more hot-button issues of constitutional protections for assault weapons or high-capacity magazines.

Mr. Blackman pointed to the Mai v. United States case, which involves a man who was involuntarily committed to a mental hospital when he was 17 years old and whether he should thereby lose his Second Amendment rights.

“I think that might be an attractive vehicle because it’s not trying to give people the right to have AR-15s and give people the right to expanded-capacity magazines — it’s about mental health,” he said.

– David Sherfinski in Barrett confirmation sparks flood of Supreme Court-bound challenges from pro-gun groups

comments

  1. avatar No one of Consequence says:

    We shall see.

    1. avatar Geoff "I'm getting too old for this shit" PR says:

      Yep, in the meantime, I’ll expect to be disappointed, and be pleased if expectations are exceeded…

      1. avatar Ralph Humphrey says:

        I expect your expectations will be exceeded..
        John Roberts has now been neutered!

        1. avatar Green Mtn. Boy says:

          YuP still a 5/4 court as C J Roberts has proven his first duty is not to the Constitution as written.

        2. avatar F. Warren Zevon says:

          Poor Justice Roberts. Born without a spine, and now castrated.

      2. avatar LKB says:

        Well, last week the Third Circuit issued an opinion in the Folajtar case, which Prof. Turley (no slouch, him) says is tailor made for Supreme Court to take:

        https://jonathanturley.org/2020/11/25/barrett-reloaded-a-new-third-circuit-decision-could-prove-the-perfect-base-for-a-second-amendment-blowout/

        If I was Folajtar’s counsel, the cert petition would already be on its way.

        Pass the popcorn, this may be about to get interesting . . . .

    2. avatar Madcapp says:

      Bullshit…you mean another 2A snub just like back in June.

    3. avatar FedUp says:

      Imagine a 6-3 SCOTUS decision reaffirming a Civil Right, in which Roberts writes a majority opinion, signed by nobody else (yes, I’m dreaming), that says ‘but we really mean it’s a highly regulated privilege’ (no, I’m not dreaming).

      Imagine Thomas writes a concurring opinion, signed by four other Justices.

      What does that do for setting a binding precedent upon the lower courts?

  2. avatar . says:

    Give people the right to have AR15’s and expanded magazines. By what right do they have the right to limit any constitutional amendment.
    Validating red flag laws and assault weapons bans.
    Assault weapons, an AR15 is not an assault weapon.

    1. avatar Ralph Humphrey says:

      Unless I beat you over the head with it!!

    2. avatar Pcn says:

      Exactly. I was wondering why more people hadn’t picked up on that quote and commented.
      “Give people the right” ????
      Who is this goober writing the article?

    3. avatar Montana Actual says:

      Smh. He means AR-14s and their high capacity clips, guys. You should be able to load 2 blanks first and fire them in the air. That’s 8 rounds left that are for below the waist – mainly the kneecaps, and you should have to use them. Geez, don’t you have any training?

      See, this is why we need social justice warr… I mean, social workers with non lethals and psychology degrees as first responders.

      Btw, there is nothing in the constitution that’s says you don’t have to wear a mask…

      1. avatar Mercury says:

        I know you’re being facetious, but in case someone else doesn’t get it: that’s not how the Constitution works. The United States Constitution grants the Federal Government no jurisdiction over what you wear in the first place, so whether or not it expressly prohibits requiring citizens to wear something specific is a non-question.

        Now, some state constitutions do permit that, and, pursuant to the 10th Amendment, that means they do have that power. But most state constitutions do not permit such a requirement, and as such most states have spent most of this year in blatant violation of their own constitutions. The governors responsible should be recalled or, state legislature cooperating, be impeached and convicted.

        You may now return to your regularly scheduled humor. I just can’t pass up an opportunity to remind people that the US Constitution is a list of things the Federal Government DOES have the power to do, not a list of things it can’t. The bill of rights is a list of things it can’t do even if an express or implied power would otherwise permit it. State constitutions are the other way around, but tend to be extremely limiting by design. (Again, I write this only because it seems so many people have forgotten — or perhaps never knew — what both a constitution and The Constitution really is and does.)

      2. avatar UpInArms says:

        ” That’s 8 rounds left that are for below the waist – mainly the kneecaps, and you should have to use them ”

        But only if you shoot them through the door.

    4. avatar Shire-man says:

      Liberty is absolute. It isn’t until some mob gets together to use force to restrict your liberty that you ever lose any.

      When gay marriage was all the rage I asked a few gay friends who they thought was denying them the means to marry in the first place. Lots of confusion would ensue.

      There’d be none of this battling for your personal liberty if somebody didn’t restrict it in the first place.

      Government, nor any mob, grants me anything. It only takes. Then, like a “tax refund” pleases imbeciles, it may toss a scrap of the liberty it took my way once in a lifetime and I’m supposed to thank it.

  3. avatar TFred says:

    I still believe Roberts will vote in the majority, simply to retain the authority to choose the author of the majority opinion. If Roberts votes in the minority, that choice of author goes to the senior-most justice in the majority, which would be Clarence Thomas, who would almost certainly choose to write the opinion himself.

    Roberts will never let Clarence Thomas write a majority opinion on a Second Amendment case.

    1. avatar Jeff the Griz says:

      If Roberts were to write his opinion. I could see a lot of “but…limiting…rights…” Ugh

      1. avatar TFred says:

        Yes, and that is EXACTLY why he will vote in the majority, and author the ruling himself. His only restraint is that he has to write it in such a way as to keep all the justices who are in the majority in support.

    2. avatar Geoff "I'm getting too old for this shit" PR says:

      “I still believe Roberts will vote in the majority, simply to retain the authority to choose the author of the majority opinion.”

      As long as we get the vote, let him author some pansy-assed ‘opinion if he wants.

      The other justices are free to say something in an opinion of their own, and I can’t wait for ‘Saint Thomas’ to ‘Release his Kraken’ of an opinion.

      And if we luck out and a Leftist Justice expires, we can deny a confirmation to anyone we please, and seat our own when we re-take the WH. Because no matter what it takes, every digital voting machine must be replaced by simple electro-mechanical tabulators with no software to corrupt…

      1. avatar TFred says:

        The problem with this is that only opinions that carry the majority (5) set precedent. Other concurring opinions don’t hold any legal weight, although they are certainly fair game for future reference, just as are dissenting opinions, when majority opinions are later overruled.

        Roberts is undoubtedly in a position to water down a majority opinion as much as the other majority justices will tolerate.

        If you need an example of what can go horribly wrong, just look at Heller. In order to keep Kennedy’s vote, Scalia had to put in some text that was literally restating the Status Quo at that time, but which the lower courts have almost universally INcorrectly abused to rule that Heller explicitly found “existing” laws to be Constitutional. We have been fighting that incorrect interpretation practically since the day Heller was handed down.

        “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

        The footnote clarifying this sentence confirms it, “presumptively” literally means that no legal analysis was conducted, nor any precedent being handed down by this statement.

        “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

        1. avatar LarryinTX says:

          Affirmative Action resulted from a minority opinion.

    3. avatar Mark H says:

      Bingo, TFred has it. Roberts will join the majority in order to water it down as much as possible. Otherwise we would get a Thomas “burn it all down” opinion.

  4. avatar former water walker says:

    MY right’s are GOD given…nuff said! Attractive my azz😡

  5. avatar 2aguy says:

    We have until Justice Thomas decides to retire or passes away to get this done…..if joe biden manages to steal the election, he will be the one to likely replace Thomas, making the court the Roberts court again……ending any hope for the 2nd Amendment going forward…..so if there are cases out there……get them to the Supreme Court as fast as possible…..

    1. avatar Charlemagne says:

      I agree we can’t take the risk of pussyfooting around while Slow Joe is president, especially if the Democrats take the two Georgia Senate seats!

    2. avatar Geoff "I'm getting too old for this shit" PR says:

      “…if joe biden manages to steal the election, he will be the one to likely replace Thomas, making the court the Roberts court again…”

      Not if we hold the Senate…

      1. avatar LarryinTX says:

        Correct. McConnell should keep the Trump list of potential Justices, and present it to Biden or the Hoe, whichever is president at the time of an opening, with the words “choose someone from this list, or forget the whole thing.”

  6. avatar Cuteandfuzzybunnies. says:

    The article says they may want to take a less controversial case to protect the court.
    Really they just have to overturn one major law like an AWB or magazine ban and the antis will be too terrified to let any other cases get to scotus.

    1. avatar TFred says:

      I think they’re already terrified. Just like with NYSRPA, I fully expect they will do everything they can to avoid SCOTUS as it currently stands. Even if it means losing a Circuit or two.

      I could be wrong, only time will tell!

      1. avatar Geoff "I'm getting too old for this shit" PR says:

        “…they will do everything they can to avoid SCOTUS as it currently stands. Even if it means losing a Circuit or two…”

        Seeing ‘shall-issue’ in California will be so very *delicious*… 🙂

        1. avatar Montana Actual says:

          Not even willing to settle for shall issue. At this point it should be constitutional carry nationwide. It should have never been anything less.

        2. avatar TFred says:

          It would be somewhat entertaining to lobby for the exact same requirements for concealed carry as there are for voting.

          Not that I think they SHOULD be the same, but just watching the gun-haters stroke out over that idea would be quite a sight to see!

  7. avatar Oracle says:

    10 years??? Maybe if the Court had not been ignored or insulted with cases like new York rifle and pistol. No we will see a hot button assault weapon case using strict Scrutiny in the next 2-3 years tops.

  8. avatar Ralph says:

    No gun rights are safe when the Democrats are in power and the Supreme Court in session. 2A is supposed to enable us to resist the wanton exercise of government power. The government is afraid that 2A has teeth. The rest of us are afraid that it doesn’t.

    1. avatar Ing says:

      It doesn’t…unless we do.

  9. avatar Missouri_Mule Esquire Emeritus/Analyst says:

    Here is the problem: 82 year old Stephen Breyer (Democrat, Liberal/Progressive) will have learned from Notorious RGB’s mistake. He will retire and Sleepy Joe will nominate 31 year old A.O.C. as the next Supreme Court Justice (there is no requirement you be a lawyer). She will be there for 60 years. Don’t laugh. Pray for Cocaine Mitch McConnell and the Georgia Senate races.
    1. Stephen Breyer Age: 82
    2. Clarence Thomas Age: 72
    3. Samuel A. Alito, Jr. Age: 70
    4. Sonia Sotomayor Age: 66 yr
    5. John G. Roberts Age: 65
    6. Neil Gorsuch Age: 53
    7. Elena Kagan Age: 60
    8. Brett Kavanaugh Age: 55
    9. Amy Coney Barrett Age: 48 yr

    1. avatar LarryinTX says:

      AOC for 60 years? Do you imagine Justices are immortal, somehow? I think she’d be lucky to make 60 days, and even that assumes the Dembulbs somehow take the Senate.

    2. avatar Geoff "I'm getting too old for this shit" PR says:

      “He will retire and Sleepy Joe will nominate 31 year old A.O.C. as the next Supreme Court Justice (there is no requirement you be a lawyer).”

      As long as Joe Manchin is true to his word, even if we lose both Georgia seats, we can block them from seating a Leftist…

  10. avatar Enough Already! says:

    “Barrett On the Court Means Another Second Amendment Case is a Matter of When, Not If”

    Well, yeah, this is new, why didn’t anyone else think of this until now? Golly gee whiz, this is brilliant, had it only been thought of sooner!

  11. avatar JoeyP says:

    John Roberts is not only a WUSS, but a LEFT WING Communist who needs to be REMOVED from the bench . . . Permanently. One THOROUGHLY Enlightened Patriot. Team Trump and His Allies 2020.

  12. avatar Victor Connolly says:

    “…it could take years for a newly filed case to work its way up.” Exactly. Furthermore, it’s still possible that ‘progressives’ could attempt to ‘pack the court’, especially if Democrats manage to maintain control the House, and assume control of the Senate in 2022 or 2024. Just wish that Renna, et al. vs. Becerra (the latest challenge to California’s absurd ‘safe’ handgun roster) would make its way to SCOTUS before then.

  13. avatar F_You_Joe_Biden says:

    I’ll believe it when I see it.

  14. avatar Wally1 says:

    Playing Devil’s advocate here: What makes you think you actually have a 2nd amendment right. Last time I checked, You wouldn’t government approval or permission to express or have use of a RIGHT. Which of the other amendments of the bill of rights do you need gov’t permission to express or use?. The fact that I have to get permission to engage in a private transaction when purchasing a firearm negates it as a right. Kind of amazing that the bill of rights is a list of actions that gov’t is not supposed to do to citizens, rather it is now quite the opposite. They act like they now “allow” you a right, Therefore it negates the meaning of a right. Food for thought (well, for some).

  15. avatar Alan says:

    Hope you are correct. We shall see for it does appear as if the leanings of the court are to avoid a meaningful ruling, they seemingly prefer to play about in the margins. One of these days before I leave this vale of tears the court might actually, in plain English, say that The Second Amendment is what rules. No weasel words, no ifs, no and, no buts. Given that I’m 87 years old, closer to 88 actually, I don’t expect to see it, but then one can never tell.

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