Judge Barrett Was the Right Choice. Now the Battle Begins

Senate Majority Leader Mitch McConnell of Ky., meets with Supreme Court nominee Judge Amy Coney Barrett on Capitol Hill in Washington, Tuesday, Sept. 29, 2020. (AP Photo/Susan Walsh, POOL)

From the National Shooting Sports Foundation

President Donald Trump’s nomination of Judge Amy Coney Barrett is again delivering on his promise to return the judiciary to jurists who will faithfully interpret law as it is written. The president delivered on his original campaign promise to nominate justices to the U.S. Supreme Court “in the mold of Justice Scalia.”

“Amy Coney Barrett will decide cases based on the text of the Constitution as written,” President Trump said of his nominee in the White House Rose Garden. “As Amy has said being a judge takes courage, you are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you. That is exactly what Judge Barrett will do on the U.S. Supreme Court.”

President Trump broke campaign precedent in 2016 when he released his original list of 11 possible nominees he said he would consider to fill a Supreme Court vacancy. He added 10 additional names just months later, cementing his commitment to voters he would deliver nominations of justices who interpreted the Constitution in the same originalist manner as the last Justice Antonin Scalia.

“I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution,” President Trump said in 2016.

He delivered on the promise with the nomination of Justice Neil Gorsuch. The president updated that list in 2017, including the names of Justice Brett Kavanaugh and Judge Barrett. Justice Kavanaugh was nominated to replace the retiring Justice Anthony Kennedy. Over the weekend, President Trump made his third nomination to fill a Supreme Court vacancy, again delivering on his campaign promise to submit nominations from the list of jurists presented to voters.

In her Rose Garden remarks, Judge Barrett affirmed her commitment to the Constitution as it is written.

Judge Amy Coney Barrett speaks after President Donald Trump announced Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate,” Judge Barrett explained. “His judicial philosophy is mine too. A judge must apply the law as written. Judges are not policy makers and they must be resolute in setting aside any policy views they might hold.”

Gun Rights

The 2016 election hinged on the Supreme Court vacancy following the death of Justice Scalia, who authored the landmark 2008 Heller decision that affirmed the Second Amendment protects pre-existing fundamental civil rights of individuals. Protecting the holding in Heller was critical then – as it is now. Democratic presidential nominee Hillary Clinton attempted to equivocate her disdain for the Court’s decision after the question was posed in a presidential debate.

“I disagreed with the way the court applied the Second Amendment in that case because what the District of Columbia was trying to do was to protect toddlers from guns,” Clinton said. “And so they wanted people with guns to safely store them. And the court didn’t accept that reasonable regulation, but they’ve accepted many others.”

She was roundly criticized for her answer. That lesson, though, is lost on former Vice President Joe Biden, who last year explained in a New Hampshire town hall, “If I were on the court I wouldn’t have made the same ruling. OK, that’s number one.”

Biden attempted to redefine the Second Amendment to his own views. He interjected his own opinions into what is actually written in the Bill of Rights, using a revisionist lens.

Joe Biden

Democratic presidential candidate, former Vice President Joe Biden (AP Photo/Matt Slocum)

“I think that the fundamental argument is the reason that was given as a right because we needed to be able to muster people to deal with an enemy called Great Britain we were fighting in a war.”

That explanation, however, is completely at odds with the Bill of Rights and what Justice Scalia explained so clearly in his majority opinion.

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home,” Justice Scalia wrote. He further explained that the right isn’t derived from government, as Biden would suggest, but exists outside of the whims of a government to grant or take away. “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

Judge Barrett clerked for Justice Scalia in 1998-1999. It shouldn’t come as a surprise that her understanding of fundamental rights, especially those included in the Second Amendment, follow this decision.

Judge Barrett authored a dissenting opinion in Kanter v Barr last year, a Second Amendment challenge to the categorical ban on felons possessing firearms filed by Rickey I. Kanter who pleaded guilty to a non-violent felony (one count of mail fraud). Kanter argued the ban to the extent it applies to him, a non-violent felon, violates his Second Amendment rights.

The Seventh Circuit panel rejected Kanter’s challenge upholding the categorical ban, even if the person poses no public safety threat. Judge Barrett disagreed with her colleagues. In a well-reasoned opinion reminiscent of her mentor Justice Scalia, she searched founding-era laws for evidence of any laws explicitly imposing or authorizing such a categorical ban.

“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Judge Barrett wrote. “Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.”

Later she wrote, “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.”  The majority in Kanter, by upholding the categorical ban as it applies to Mr. Kanter, “treats the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”

Importantly, Judge Barrett’s dissenting opinion shows that she jealously guards fundamental individual rights, including gun rights, and requires the government to shoulder the burden of proof as to why that right should be restricted. It demonstrates her judicial philosophy of how to interpret the law.

Originalism

The firearm industry holds originalism among jurists in deep regard. Originalism theory explains that the law means what it says, just as it is written, in context with the meaning of the words used at the time. Judge Barrett spoke of two types of originalism. First is “original intent” originalism and second is “original public meaning” originalism.

The first category – original intent – emerged in the 1980s, when the Supreme Court relied on “living Constitutionalism,” or way to interpret law as jurists applied it to contemporary understanding. The problem is those standards shift over time, giving the law no foundation.

“Original intent originalism was really an [exercise] of trying to think your way into the minds of the framers and say ‘How would James Madison approach this problem?’ or ‘How would Thomas Jefferson approach this problem?’” she said.

She acknowledged critics would object that the law shouldn’t be bound into the Framers’ thoughts, some of which were never included in the Constitution. That’s where original public meaning provides the safety rails.

“The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today,” she said. “Making this distinction between interpretation and construction has had the effect of making originalism a pretty wide tent. Now, in its most recent and modern iteration, originalism has attracted people of all different political stripes.”

Judge Barrett rejected criticism that originalism is too constricting to allow jurists to address modern dilemmas, some of which couldn’t have been anticipated by the Constitution’s Framers.

“In some respects we should look at that [inflexibility] as a good thing. … It’s a floor, we don’t want to go below this,” she said. “We don’t want an entirely flexible Constitution because then we would have no constitutional protection at all.”

Confirmation Fight

Judge Amy Coney Barrett, President Donald Trump’s nominee for the U.S. Supreme Court, is escorted to the Senate by Vice President Mike Pence, second from right, where she will begin a series of meetings to prepare for her confirmation hearing, at the Capitol in Washington, Tuesday, Sept. 29, 2020. White House Chief of staff Mark Meadows is right and White House Counsel Pat Cipollone, left. (AP Photo/Susan Walsh, POOL)

Judge Barrett’s confirmation is already heating up to be a partisan slog. Many of the arguments that will be presented have nothing to do with guns or Second Amendment rights, including accusations of adherence to religious tenets. That was already apparent in her confirmation to the U.S. Court of Appeals to the Seventh Circuit, when U.S. Sen. Dianne Feinstein (D-Calif.) unconstitutionally applied a religious test to her appointment by saying, “… the dogma lives loudly in you.”

Judge Barrett was approved to the bench by the Senate, in a 55–43 vote that included three Democratic senators. This confirmation will be no less contentious, but no less vital to preserve Second Amendment rights for all Americans.

comments

  1. avatar Optimistic Engineer says:

    I just want my constitutional rights to not be taken away by a bunch of local and state ordinances.

    This looks like a good candidate. Let the legislature legislate and the judges judge.

    1. avatar I Haz A Question says:

      I have a feeling the nickname ‘Amy “.50-Cal” Barrett’ will be held in reserve and joyously applied to her upon her first pro-2A ruling at the bench, if it turns out that her present on the Court helped to tip the ruling in favor of the People and Liberty.

      1. avatar Geoff "Tampa Bay Bolts - Stanly Cup Champs" PR says:

        The folks like you in California would be pleased if she gets the .50 BMG ban declared unconstitutional by her… 🙂

        1. avatar SAFEupstateFML says:

          May get the semi auto version in standard configuration legal in NY. But till then on to watching the debates and hoping both candidates accurately represent their positions.

    2. avatar Tim says:

      “Let the legislature legislate and the judges judge.”
      Now that’s just crazy-talk.
      /s

    3. avatar jwm says:

      TTAG needs to do a rundown on the other 8 justices. How old they are. Any known health issues.

      Trump is going to have another 4 years to replace any quitters in the bunch.

      1. avatar Ing says:

        Possibly the single best reason to get Trump a second term. At least one of those old buzzards is going to retire in the next four years — Thomas may be next; he’s a good one, but he’s getting very old — and there can never be too many constitutional originalists.

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

          Thomas may choose to stick around awhile if thinks the 2A may be getting some of the respect it deserves…

        2. avatar DDay says:

          Breyer is 82 and there have been rumors for a few years he wants to retire and spend time with his great grandchildren. He was on a senate committee in the 1970’s and close to ted kennedy so I’m sure he’d like to retire with a democrat senate and POTUS in power.

          But if trump gets a 2nd term breyer may not want to stick around for at least 4 more years. He’s in ok shape but he’s still in his 80’s and he’s been on the court since 1994. When Barrett is confirmed and the court is a 6-3 conservative majority, he may see his role as pointless. Would it matter if he stayed and was on the losing 3 judge side more than if he left and a decision was 7-2? A loss is a loss and Barrett, Gorsuch, Kavanaugh, Thomas and Alito are pretty darn conservative and the oldest is Thomas at only 72. Roberts has been disappointing at times but still votes conservatives 70+% of the time.

          So breyer understands he’ll never be on a non conservative court for the rest of his life.

  2. avatar Green Mtn. Boy says:

    They should hold the nomination hearings immediately and shove it up Dirty Harry Reid’s and his fellow Marxist’s backsides.

    1. avatar Craig in IA says:

      Uh- in case you haven’t noticed, Harry Reid has been gone from the Senate for a couple years now…

      1. avatar Rad Man says:

        A mere technicality.

      2. avatar zerofoo says:

        Harry Reid changed the rules. Thanks to his short-sighted rule change 50 votes are all ACB needs.

    2. avatar DDay says:

      The hearings are scheduled for Oct 12, a committee vote will be Oct 22 and full Senate vote Oct 28th or so. Durbin said over the weekend there is nothing they can do to stop her except maybe slow it down for a few hours or days.

  3. avatar Specialist38 says:

    I like her. Seems to be focused in the constitution.

    I think Gorsuch and Kavenaugh have done ok. Some of their decisions have angered a few activists. Some on the right and on the left.

    Focus on the constitution and law and not on emotion…..a good approach.

    And…she has pretty nice gams. Just sayin…..

    1. avatar Geoff "Tampa Bay Bolts - Stanly Cup Champs" PR says:

      I feel sorry for the Hell her kids are going to go through, just because she is their mother. The hate and rage in them knows no bounds…

  4. avatar JohnnyL says:

    Feinstein’s ideology speaks louder than Coney Barrett’s religious beliefs.

  5. avatar Geoff "Tampa Bay Bolts - Stanly Cup Champs" PR says:

    “Later she wrote, “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons.”

    This is important, since the Leftists will expend every effort to declare felony criminal as many laws as possible to expand the pool of prohibited persons as much as possible.

    “They hates us, yes, they do, my precious…” 🙁

    1. avatar Chief Censor says:

      It’s Florida Republicans that are doing that.

      Democrats want to give back voting and gun rights to felons. Not all Democrats agree with the gun part. Even Bloomberg is spending money to get felons back on the voting rolls. These days you can’t tell black America that their convicted men can’t have a gun.

      It Republicans that want to make every damn thing a felony and continue the drug war.

      1. avatar Geoff "Tampa Bay Bolts - Stanly Cup Champs" PR says:

        “Democrats want to give back voting and gun rights to felons. Not all Democrats agree with the gun part.”

        I believe you are partially-correct.

        They want voting rights restored, but I have never heard of their interest in gun rights being restored also.

        Would you have a link?

        1. avatar Shire-man says:

          I got one for you. Democrats railing against those evil Republicans for trying to restore gun rights to felons.
          https://www.politifact.com/factchecks/2017/sep/22/jose-serrano/are-republicans-trying-allow-convicted-felons-own-/

        2. avatar Geoff "Tampa Bay Bolts - Stanley Cup Champs" PR says:

          I believe that was included as a ‘Poison Pill’ to ensure Democrats would never vote for it…

      2. avatar Ron says:

        Boooo! ThE sNeAkY eBiL rEpUbLiCaNs are out to get you! They lurk behind every corner! There could be a republican behind you right now!!!

        Don’t look! because if you do you’ll find that it’s actually Bill Clinton or Handsy Joe Biden trying to touch you.

  6. avatar former water walker says:

    Well DJT talks a good game(unless you gotta bumpstock). I like his nominee. A lot. More than Gorsuch & Kavanaugh. I “hope” she’s confirmed to the SCOTUS. But I couldn’t believe we were invading Iraq for piddling reasons(fulfilling Wilson’s dream of making the world safe for democracy-how’d that work out Adolph,Benito,Joe & Tojo?)What does anyone know???

    1. avatar Geoff "Tampa Bay Bolts - Stanley Cup Champs" PR says:

      “I like his nominee. A lot. More than Gorsuch & Kavanaugh.”

      I think Kav will deliver on a 2A case for us, out of sheer revenge for the way they treated him during his hearings.

      We just need to get a good case granted Cert….

      1. avatar DDay says:

        Kavanaugh ruled against DC’s assault weapon ban but was on the losing side of the DC circuit court of appeals. He’ll be pro 2A. He also joined with Thomas a few months ago criticizing SCOTUS for not taking 2A cases.

  7. avatar FormerParatrooper says:

    What all Judges should understand is very simple and stated by a man who wrote the Declaration of Independence and was involved in the schematics of the Constitution even though he was across the ocean during the time Madison, John Jay and the others worked to build a Country:

    “On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit of the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

    Thomas Jefferson in a letter to William Johnson, 05 June 1823.

    I believe the Honorable Amy Coney Barrett knows this quote well. Maybe she could enlighten the others.

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

      Good one!

  8. avatar Gadsden Flag says:

    I had a neighbor that told me he guided Scalia on a couple of turkey hunts. Even though I knew he was a high ranking officer in the NWTF I had my doubts. I’ve heard shit woofed before. Then he showed me a pic of Scalia and two other federal judges in Realtree camo judges robes. Looked like they were having a good time. If Barrett clerked under Scalia she’s good with me.

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

      She was reportedly one of Scalia’s favorite clerks.

      That alone must really piss them off.

      Scalia went the best way possible, not in DC, not gasping for breath dying of cancer in a hospital or hospice, but out in Texas, God’s country, in a comfortable bed in his sleep…

      1. avatar tsbhoa.p.jr says:

        with a my pillow held over his face.

  9. avatar Wally1 says:

    We (the law abiding citizens) need and deserve a judge that will not interpret the constitution, but strictly adhere to it’s writing and meaning. Very simple. It was intentionally written for the average person at the time to understand. No gray , it’s black and white.

  10. avatar Prndll says:

    Most presidents rarely keep ANY promises they make on the campaign. Trump has done an outstanding job of keeping his. Particularly with all the lunatic opposition he faces.

  11. avatar Hannibal says:

    There will only be as much of a ‘battle’ as the GOP in the senate wants to allow. Let’s be very clear on that. They have the votes to confirm in 5 minutes if they wanted to.

    Doesn’t mean they shouldn’t hold confirmation hearings. But it does mean that if we start to hear complaints about ‘obstructionism’ we should worry… because it’ll mean that the gop senators have decided to try and play political games instead of just confirming.

    This should not be a fight unless something rather drastic comes out in her past OR enough gop senators come out by name and say they won’t support it

  12. avatar Nanashi says:

    I like her position on stare decisis. A supreme court justice owe no feality to her predecessors, only to the Constitution of the United States.

  13. avatar Morgan Lively says:

    Repeal the NFA, GCA, Brady, and the Hughes Amendment!

    1. avatar LarryinTX says:

      That would be for Congress. SCOTUS should declare them unconstitutional, because they are.

      1. avatar Morgan Lively says:

        Are there any congressmen who actually support repealing it though? I just want our full 2A back.

  14. avatar J. Smith says:

    She has written and spoken about her support for the 1905 act that allows the government to forcible vaccinate us citizens. She supports government involvement to the ccp/faucci virus. She is not a libertarian jurorist. Keep focusing on one right, single issue voters just like everyone else and continue to see the government you deserve. Such a win. Just like Roberts!

    1. avatar Miner49er says:

      No, she’ll be great!
      Forced vaccinations are just part of the socialist agenda, just like you mentioned the socialist law of 1905 the permits to government to force you to have injections of supposedly ‘dead‘ virus particles.

      Vaccinations are good for society and that’s what matters, and Judge Barrett understands that.

      She’s also opposed to capital punishment because of her devout Catholic faith, another point in her favor.

    2. avatar The Olympic Snorch says:

      wOuLd yOu RaThEr hILLaRy?!?1?¡

    3. avatar jwm says:

      This is a gun blog. We have other sites to focus on other issues. Continue to be a boor here and watch support for your cause go away.

      1. avatar Miner49er says:

        This article discusses the supreme court nominee and her position on various issues, especially her concept of government control over every day life.

        Your ham handed efforts to censor these comments is a sad attempt to bully and intimidate others into not expressing their opinion. How ‘patriotic‘ of you…

        It’s a good thing you’re just a keyboard commando, otherwise your empty speech might actually have an impact.

        And I predict in six months to one year after confirmation, many of you will be disappointed to find that the new justice isn’t quite the extremist conservative you’d hoped for.

        1. avatar jwm says:

          miner, you are the king of ham handed. And 6 months from now, thanks in large part to you, Trump will still be in the white house.

          It amazes me how you cannot see the obvious. Fascinating, really.

  15. avatar busybeef says:

    She’s right on guns but wrong on almost everything else.

    1. avatar jwm says:

      Better than anybody slow joe would appoint.

      1. avatar J. Smith says:

        More of the choice between ebola and aids, just like trump and biden. We keep getting the government we deserve.

        1. avatar busybeef says:

          Agreed 100%.
          This is the result of voting for the lesser evil for 250 years.

        2. avatar Molly H says:

          j. smith, why don’t you run for office and show everyone how it’s done? my guess is you would make joe ‘kid sniffer’ biden look like an energetic genius.

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