Supreme Court Barrett
Judge Amy Coney Barrett, President Donald Trumps nominee for the U.S. Supreme Court, meets with Sen. John Cornyn, R-Texas, not pictured, on Capitol Hill in Washington, Wednesday, Sept. 30, 2020. (Graeme Jennings/Pool via AP)
Previous Post
Next Post

Michael Bloomberg’s anti-gun agitprop generation outlet, The Trace, is frightfully concerned about the prospect of Judge Amy Coney Barrett taking what they refer to as Ruth Bader Ginsburg’s seat on the high court. Their biggest worry is that a Justice Barrett would adhere too closely to the text, history and tradition of the Constitution for their tastes, which could mean dark days ahead for various gun control laws.

Oh no.

This “text, history, and tradition” test calls on courts to ask only one question: Is there some kind of historical precedent for a current gun law? If the answer is yes, then the court should uphold the gun regulation as constitutional. If the answer is no, then the court must strike down the gun regulation. This could potentially invalidate even politically popular regulations like strict permit requirements for public carry and bans on high-capacity magazines. And you can see how it might get difficult very quickly: We don’t allow guns on airplanes, but there couldn’t have been an airplane gun-ban in the 18th century because there were no airplanes.

One of the first high-profile evocations of the history and tradition test came from Justice Brett Kavanaugh, Trump’s last appointee to the high court. When he was a judge for the D.C. Circuit, he wrote a dissent in a case on Washington’s ban on semiautomatic rifles, calling on courts to stop considering modern public safety concerns in their Second Amendment analyses. He wrote, “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test.” Kavanaugh went on to conclude that, because laws have allowed civilians to own semiautomatic rifles since the early 20th century, they should be protected by the Second Amendment today.

Gun rights attorneys read then-Judge Kavanaugh’s dissent as a clarion call for cases that would give courts across the country the opportunity to cement history and tradition as the true test of the Second Amendment. They have offered up the history and tradition test in dozens of cases in lower courts. The history and tradition test also appeared in 10 of the 12 Second Amendment petitions that crossed the Supreme Court’s desk last term. The justices agreed to take only one of those cases, giving gun rights litigators the chance to present the history and tradition test during oral arguments.

– Olivia Li in On Gun Laws, Barrett’s Philosophy Leaves Little Room for Public Safety

Previous Post
Next Post


    • They are welcome to use the legislature instead of the supreme court to pass laws. Amendments can be modified and they are welcome to try and modify the 2nd amendment. There is a process for it. Go ahead.

  1. Text ,history, and traditions test. Even still with pro 2a judges they cannot get the meaning of Shall not be infringed, passing a test is bullsht

    • The 4 most difficult words in the english language for judges to understand. “Shall not be infringed” is not an ambiguous statement.

      • Pretty emphatic, huh? Nothing like that appears anywhere else in the Constitution.

        I doubt it ever occurred to them that leaving absolutely no wiggle room, one day there would be people who would convince themselves there’s wiggle room.

      • The entire Bill of Rights could not have been made more clear as it uses “command directives” aimed at government that makes very clear what the thought was that what was being expressed and what was meant by the words being used. The words we read in the Bill of Rights such as; “Congress SHALL MAKE NO LAW respecting an establishment of religion…” and “… the Right of the people to keep and bear arms SHALL NOT be infringed” are both perfect examples of very clearly written and understood English… and are written as command directives to the government.

        But the fact is that many (if not most) of our politicians have been bribed or have been compromised in some way or another and are therefore under the control of the Deep State and so they really do not care that they are disrespecting the Constitution or that they are also violating their oath of office. See them for what they are. They are “traitors”! Please understand that they don’t pass these anti-gun laws because they are stupid or because they do not understand the words in the Constitution. They pass these anti-gun laws because they have an agenda and have as their goal to destroy America and know perfectly well that a well informed and well armed people can not be dealt with and controlled in the easy manner that they would like to see made available to them. And so this is a constant and systematic effort to disarm the American public in order to turn America into a third world country and to bring about their “New World Order” with a one world government. Make no mistake about it, this has been and continues to be the main struggle facing us.

        All anti-gun legislation is clearly unlawful and unconstitutional. Regardless of what claims they make pertaining to having a grant of authority under the Supremacy Clause and/or the Commerce Clause of the Constitution, government totally and completely lacks the authority to regulate the firearms industry. And this is true because that original document was modified and permanently altered by its amendments. And under the rules of contract law the conditions, terms and provisions of the amendment always override and always “supersede” everything in the original document. And in the case of any conflict that arises between what is in the original document and what is contained in the amendment, it is the conditions, terms, and provisions of the amendment that must under the law always prevail. “The Right of the people to keep and bear arms” remains today as the Supreme Law of the Land and shall continue to be until such time as a new amendment is passed that specifically addresses the provisions and the directives of the Second Amendment… (and which to this date has never been done).

        Remember that it took the passage of the 21st Amendment to finally put an end to the mistake that was Prohibition that had been brought about by the 18th Amendment. And know also that this change to our country could NOT have come about by any act of the Congress or by Presidential Executive Order because the 18th Amendment had made Prohibition the Law of the Land and therefore could only be altered, nullified or reversed via the constitutional amendment process.

        Accept nothing else. Both the truth and the law is on our side.

    • So, the marsupial would rather complain than to start an incremental progression back to the original written word? Typical reply by a fair number of posters here.

      A “civilization” without personal protection began in the late 1800s and progressed westward from the more genteel metro centers through the “wild west” cow towns, often by “executive orders” of elected and appointed law enforcement officials like Wyatt Earp and others who sought to keep order in “their” towns. There was a steady decrease in American 2nd Amendment protections culminating at an apogee around 1992-3. Since then, disregarding a few speed bumps, we’ve been slowly recouping our heritage.

      One of the greatest barriers Americans faced in maintaining the Second Amendment at all was a decline in the number of people who actually owned guns and used them on a regular basis. Even the people decribed around here as “Fudds” were dropping out as hunting opportunities dwindled.

      I believe that perhaps the greatest jump in the originalist direction will come now that record numbers of Americans who had never considered owning a firearm for their own protection, let alone hunting or target shooting, are now in the process of purchasing, and for the sole reason of protecting self and property. It will demand a lot more real work than many of the closet activists around here are willing to undertake but through our intelligent activism coupled with a judicial system which doesn’t seek to act as unelected legislators, huge bounds to re-energize the private ownership and use of firearms by American individuals is not only possible, but probable. (Re-read that sentence before you jump in…)

      If we, the principle proponents, will involve ourselves and not act in a manner that scares the hell out of those we’d like to influence, it’s within our reach. That, and for another fairly large number of types around here to “hold their noses” if necessary for their principles, and vote for the reelection of DJT, it’s possible.

      • “If we, the principle proponents, will involve ourselves and not act in a manner that scares the hell out of those we’d like to influence, it’s within our reach.”

        I’m more concerned about how the opposition reacts than how we act/react. Tha’s totally out of our control…

      • Yes I’m complaining because even with my eighth grade education I know what “Shall Not Be Infringed” means.

        • “Yes I’m complaining because even with my eighth grade education I know what “Shall Not Be Infringed” means.”

          The actual rendering is, “Shall Not Be Infringed (except for…..)”. That was a bit clunky when written in the script of the time, so, to save space and make the script look better, “(except for….) was actually written on the reverse at the same place as the Second Amendment on the front.*

          *With permission from “Fractured History”

  2. Take away his money and der fuhrer mike bloomberg is a broke, lost little man with no real friends whatsoever. With money he is pathetic. Without money he is pathetic.

    On the other hand…Rest assured this mail-in ballot every nitwit votes scheme is an accident waiting to happen. What areas of a city do they include or exclude? Can inclusion and exclusion happen? Can democRats concoct a diabolical scheme to overthrow a duly elected POTUS? They can and they will and they did.

    If someone cannot register to vote says they don’t give a damn about voting so why shove a ballot in their face? The obvious answer is chances are very good stupid is going to vote democRat.

    This election needs to be a landslide victory for America and the POTUS DJT. To do that is going to take cancelling stupid votes that cater to marxism and the hate America crowd. Make voting a priority today, not tomorrow or “later on.”

    TRUMP/PENCE 2020.

    • With money Bloomberg may be pathetic, but he is definitely dangerous to American freedoms … and not just the right to keep and bear arms.

  3. I guess they just don’t understand that the Constitution isn’t interpreted based on “politically popular” regulations.

    • “I guess they just don’t understand that the Constitution isn’t interpreted based on “politically popular” regulations.”

      If by “they” you are referring to judges or SCOTUS, “they” will so long as we elect persons like Biden who will continue to appoint activists to these positions rather than judges.

      Again, if DJT isn’t reelected we’ll return to the same old story, like it or not. Sorry, kids, but there really is no VIABLE alternative. One needs to understand what “politics” involves in the first place. Many don’t.

  4. “Is there some kind of historical precedent for a current gun law? . . . If the answer is no, then the court must strike down the gun regulation.”

    Where does The Trace get this interpretation? It seems bizarre!

    I assume we would find no 18th Century precedent requiring gunsmiths to emboss a maker’s mark or serial number on their wares. Nevertheless, I see nothing that precludes Congress from imposing this requirement on commerce.

    Conversely, it does seem to make some sense in that if we find no 18th Century laws limiting or governing innovation in gunsmithing then we should have some reservations about prohibitions on action-types (e.g., revolvers, levers, pumps, auto-loaders, automatics). Arguably, any such prohibition on action-types is an “infringement”.

    I think the key word is “infringe”. What did the founding generation understand the word “infringe” to mean as respects the keeping and bearing of arms? How does that term apply to circumstances today?

    Could a stagecoach company prohibit a passenger from carrying a gun on board its carriages? Could a state prohibit a horseman from carrying a musket on a public road? How might these inquiries inform planes and cars today?

    • I would think the Stagecoach line could prohibit a passenger from carrying a gunm, but the road is public so a no on that.

      • I would think that would be a good subject for a clarifying Amendment, Possum, because that is decidedly NOT what 2A says. Possibly it was intended, but that can be argued both ways. “Shall not be infringed.” contains no exceptions, nor allows any, even if you like the exceptions.

    • I believe that if the coach is owned by an individual then that individual should be able to restrict access to his property/coach; he can not restrict access to your own coach. However, if he is operating a business and that coach is open to the public and does not restrict entry such as with a membership; then he should not be able to restrict the carrying of weapons by private individuals who use his service. Disruptive people can be removed under trespass laws and handled by the sheriff.

      The road is public indeed and you can travel with arms. The more “open to the public” your property is, the more you yield to the rights of individuals entering. I liken this hypothetical question to big tech. At what point do we make corporations and paper entities comply with the constitution?

      Bad people will always do bad things and living in fear of that isn’t going to change the fact.

      • I think you are spot on as the 2A is currently written. I am a literalist when it comes to the Constitution, I believe that if that result does not satisfy you, the Amendment process awaits you. Similarly, I think Roe v Wade was decided erroneously, twisting and straining the Constitution in order to pretend it says something which it never did before. Yet, since it was decided on Constitutional grounds, by SCOTUS, the corrective action involves an Amendment, not simply resubmitting the same challenge over and over, forever (since if reversed it will STILL be resubmitted over and over.) Those pro choice will not submit an Amendment since the status quo is perfectly suitable to their preferences. So when is the anti choice crowd going to even CONSIDER an Amendment, since they have not during the past 45 years?

        • I think Roe v Wade was decided erroneously

          Even “Jane Roe” plaintiff stated later that it was a mistake and Ginsberg spoke out against the “structure” of the decision… It’s time to send this one BACK to the states where it belongs along with education, marriage and biological men competing in girls sports… I can’t find wording anywhere in the U.S. Constitution that defends the right to murder a child in the womb or forcibly extricate it prematurely causing death….

          • “I can’t find wording anywhere in the U.S. Constitution that defends the right to murder a child in the womb or forcibly extricate it prematurely causing death….”

            I wanted to stay away from this string, but to, two, too, tutu many martinis cannot be denied.

            RvW was, essentially, a property rights decision. Under the 9th and 10th Amendments, regulating abortion is reserved to the states, the central committee not having explicit delagated power to regulate the matter. However, property is entirely different.

            The core of RvW is a woman’s right to choose what happens to her body, her property, her possession. However, the 13th Amendment forbids owning persons/people. Thus, a fetus, for the first time in history, could not be a person. A person has rights protected by the constitution, and persons cannot be owned as property.

            If, however, a physical, biological growth in a woman’s body (such as a kidney, eye, liver, etc.) is unarguably property of the person (else those body parts could not be donated, or electively removed), that person has property rights in parts of their own body; rights protected by federal law and the constitution. Thus, states retain the power to regulate abortion if the procedure is visited upon a person, but states do not have power to deprive a person of their federally, constitutionally protected property.

            And it therefore follows that until a baby is born alive, and becomes a person, property rights are the proper issue to be adjudicated. It is here, born alive, that we now find ourselves facing a battle to protect the person that resulted from an intended/attempted abortion. Is actual graduation from body part to person the defining moment, or the intent of the property owner prior to the body part becoming a person?

    • They misunderstood it on purpose. Obfuscation and misdirection to complicate something that’s actually quite logically simple.

      There’s a good reason why the test is “text, history, and tradition” in that order.

      Text comes first because it’s intended to convey the plain meaning of the law — and that is what any ethical and competent judge must deal with above all. (The “letter of the law” isn’t just a figure of speech; it’s real.) History and tradition come into it secondarily, as the Supreme Court may also need to consider how society has previously implemented the letter of the law.

      So-called liberals, of course, do NOT want judges who rule within the letter of the law or consider legal history and tradition, because that hinders their social engineering. The more complex and muddied they can make things seem, the greater latitude they have to invent their own outcomes.

  5. Barret’s confirmation to SCOTUS is one thing that ALL of Blownaparts billions cannot stop.. Hey Mikey how’s it feel to lose the big one… Keep spending BIG boy…. everything you do will wind up in a “Constitutionalist” (finally) U.S. Supreme Court… Trump/Pence 2020… Breyer replacement in 21/22….

    • Seriously? You think a RINO senator can’t be bribed,threatened and/or blackmailed?!? “You got a nice family. Be a shame is somethin’ happened to them”😕😕😕😕😕

      • You’ve been watching too much TV.. Those people are more concerned about power than family.. their egos require that they keep that seat at any cost, a family member harmed because a “RINO” refused to comply would guarantee that they would (as a person of “principle”) hold that seat in perpetuity.. Small price to pay…

    • Breyer is well and good, I betcha Thomas would submit his retirement during Trump’s second term.

  6. Democrats don’t want to take your guns.
    Also, Democrats fear the SCOTUS will interfere with their taking of guns.
    Shills on suicide watch.

  7. Imagine a judge who follows the law. That’s what the constitution is, it’s law. When certain people (legislators & executives) don’t follow the law (the constitution), there are consequences. This is simple to rectify. Change the current law (the constitution) to allow other laws that are now currently illegal. The the judge can decide a case according to the law, instead of someone’s feelz.

  8. “…because laws have allowed civilians to own semiautomatic rifles since the early 20th century…”

    A small point perhaps but the above is incorrect. The United States Constitution, our Republic’s Supreme Law of the Land, has enumerated the right to own semiautomatic and all other weapons of common utility to a military force since March 4, 1789. Our founding document did not create the right, it simply stated it.

    Semiautomatic firearms we would recognize as such today first appeared in 1885, again well ahead of the 20th Century.

  9. “Their biggest worry is that a Justice Barrett would adhere too closely to the text, history and tradition of the Constitution for their tastes, which could mean dark days ahead for various gun control laws.”

    Yes as they should be as each and every gun control law is un Constitutional ,may Bloomturd and his ilk ESAD.

  10. this is a dodge
    they know gun control is an abject loser now
    thats why nobody whispered it into bidens ear during the debate
    this is to keep folks from seeing what its really all about:
    democrats helping other democrats to stop republicans from stopping democrats from killing babies

  11. And THIS is why I voted Trump the first time, and while I will again this November. Hold your nose, if you can’t stand the man; vote for a future where the SCOTUS follows the Constitution.

    As a reminder, Justice Thomas is not a spring chicken. We may soon fervently wish he’d retired during Trump’s first term should Biden be elected.

    Confirm ACB NOW! Republicans and RINOs, this moment will dictate your future. Choose wisely.

  12. I hope ACB and her family are under SS protection. The left is full of nutbags for sure. And that’s just the democrats in office.

  13. If her fidelity to the Second Amendment is as strong as claimed they will need about 5 or 6i like her to secure those rights for the next 30 years.

    • Or just add 6 more next year in trumps second term. The democrats have a great idea and he should run with it.
      12 to 3 sounds about right to me.

      • That was my immediate thought when the enemy made the packing the Court declaration. Trump should thank the enemy and inform them that its a great idea. And proceed to pack the court because the Democrats demanded it.

        • He really should at least thank them for the idea and say he’s considering it. They’d blow a gasket and do an about-face so quickly their heads would spin like that demon child in The Exorcist.

        • My thoughts exactly, he should PUBLICLY ask Schumer and Pelosi what they think he should increase the number to. The fools continue to imagine that Trump has zero chance of reelection, just exactly as they imagined he could not be elected in the first place. AND!! Once he has overseen the change to 15, submit an Amendment to freeze it at 15, but have your ear protection on, first, the screeching will be supersonic!

          • “Trump has zero chance of reelection,”

            Given the beer virus diagnosis today, “they” just might be correct. But I have a worse case scenario:

            Pence has to take over as president under 25th Amendment. This removes Pence as a Senator, making the SCOTUS and Circuit Court appointments problematic: Barret fails the vote because Trump as the driver is no longer the factor. Trump resigns due to illness, Biden becomes president, Repubs don’t have the vote to confirm the replacement VP. Pence is not Trump (Pence is establishment), and the Trump supporters lose interest in the election. Dims prevail and begin to install their nightmare.

            The Repubs need to stop with the crap about fairness and bi-partisanship; confirm Barrett today, and Barrett’s replacement tomorrow. There is no reasonable argument for taking the entire month of October to confirm either of the nominations.

            Without the blowtorch that is Trump, the Repubs will revert to squishism (their natural habitat).

  14. Bloomberg was mentioned in the Bible, something about a camel passing through the eye of a needle…

  15. “Text, history and tradition” are used to uphold the machine gun regulations. It is a two-edged sword. If something has been unconstitutional, but allowed through history and tradition, that something is de-facto now constitutional. In the case of gun laws, all that is needed is to array before the courts the myriad gun laws that have not been declared unconstitutional, and you have text, tradition and history justifying at least the sustaining of the status quo (stare decisis). Precedent is holy.

      • “see: Dred Scott v. Sandford”
        The issue was whether the US Constitution could be amended by State law (or even simple congressional legislation signed into law). Which was the entire context for the madness of 1850-1860. The attempt to use the “privileges” doctrine was, on its face unsustainable as no clause in the US constitution could be used to grant the national government powers that were not otherwise detailed/delegated from the States to the central government. The Taney decision was based on the words of the constitution that did not delegate regulation of slavery to the federal government, and Amendments Nine and Ten clearly restricted the federal government from usurping powers retained by the States. The constituiton even contains a clause regarding the mandatory return runaway slaves (but not using that term) to the jurisdiction from which they escaped.

        Since the power to regulate slavery remained with the individual States, the “privileges” could not be used to evade the the fact the federal constituiton did not grant power to the central government to deal, at all, with slaves. And since the central government had no delegated power to regulate slavery, it also had no authority to entertain judicial matters arising from the ownership of slaves, wherever situated.

        Even the “privileges” clause could not be superior to the lack of jurisdiction available to the central government. Thus, the issue of “privilege” was inferior. To allow “privilege” to rise to the level of de facto Constitutional Amendment would create chaos everywhere. In this, Taney was correctly decided within the bounds of the original text of the Constitution. Temporary dwelling of property from one State in another State could not be considered ad hoc and legal freeing of property.

        The “privilege” clause is as dangerous to the union as the “Commerce” clause. An extreme example: if California granted a driver’s license to blind persons, that license, and the privilege of driving on public roadways, must be accepted in every state the blind resident of California visits. Allowing California to impose all of its bizzarre conditions on the rest of the states, is a situation never contemplated by the framers of the Constitution. An extreme example: if California granted a driver’s license to blind persons, that license must be accepted in every state the blind resident of California visits. Another: California grants all owners of unimproved land a license to excavate any and all resources on, above and below the surface. A resident of California can purchase unimproved land in Kansas, and begin excavating under its California license.

        Yes, sometimes the SC does reject precedent, but the exceptions are not the rule, and relying on exceptions to guarantee the courts will always overrule precedent is a tenuous proposition. Heller demonstrates that historical and traditional restrictions on firearms can, and will, justify otherwise unconstitutional burdens on firearms in the hands of “We the People”. Heller I/II and McDonald prove that the Second Amendment is still not permited to be viewed as absolute in its language…”SNBI”.

  16. Locking up/hanging all illegal Insurrectionary anarchism gun controllers as enemies of the State is going to be EPIC & the crying all the way to jail or the rope.

  17. Down the memory hole!

    “A religious organization tied to Amy Coney Barrett, President Trump’s Supreme Court nominee, sought to erase all mentions and photos of her from its website before she meets with lawmakers and faces questions at her Senate confirmation hearings.
    Barrett, a federal appeals judge, has declined to publicly discuss her decades-long affiliation with People of Praise, a charismatic Christian group that opposes abortion and holds that men are divinely ordained as the “head” of the family and faith. Former members have said the group’s leaders teach that wives must submit to the will of their husbands. A spokesman for the organization has declined to say whether the judge and her husband, Jesse M. Barrett, are members.
    But an analysis by The Associated Press shows that People of Praise erased numerous records from its website during the summer of 2017 that referred to Barrett and included photos of her and her family. At the time, Barrett was on Trump’s short list for the high court seat that eventually went to Justice Brett Kavanaugh.”

    Let the coverups begin!

    • Thanks to you hate filled bigots on the left folks feel they have to hide any faith they have in any but government.

      Makes no difference. She’s going to be confirmed and Trump will have another 4 years to add more. I think he ought to follow the left’s game plan and pack the court.

      You and your buddies still have not tumbled to the fact the only reason we have Trump for 8 years is because you caused it.

      If stupid was an Olympic event you couldn’t walk for the weight of gold medals you’d have around your neck.


    • ” People of Praise erased numerous records from its website ”

      As we all know, the internet is forever. In order for the AP (and you) to make those claims, they must have seen the erased documents — which means they weren’t erased from the internet and, ergo, are still available. When the AP (or you) actually cough up those documents, I might believe it. In the meantime, it’s bullshit, and STFU.

      • If you read closely, you’ll notice the article says they were erased from the cult groups website.

        Of course the Internet archive still shows the documents, that’s the benefit of a Free Press.

        In other news, many people are asking if Donald Trump and Melania will inject themselves with disinfectant as the President of the United States has suggested, for a ‘cleaning’.

  18. I will vote for Trump not because I think he is polite well mannered guy, but because he believes the Constitution means something. He has proven this with 3 excellent Supreme Court Justices and almost 300 judges appointed to the Federal Court. Other Republican Presidents have tried to appease the liberals by picking justices who are not to Originalist. Trump has not been shy about picking originalists and has not apologized for doing so. In the Bible King David was a terrible sinner who nevertheless led his people to greatness. This is what I think Trump is a sinner who trying to keep us from becoming a Totalitarian, Socialist Country. I would rather have him than a milquetoast who lets the socialists/marxists take over.

    • There is not going to be a harris presidency. If the dnc had a thought that they could beat Trump this go round we would not have had biden/harris on the ticket.

      These two are sacrificial goats. The fact that they don’t see that is remarkable.

      • While I can agree that is probable, let’s not forget that was the situation in 1992, as well. Bush the elder ended the Gulf War with a 91% approval rating in the Spring of 1991, a rating I don’t ever remember hearing before or since, he could not possibly lose.

  19. A caring wife, mother, ardent constitutional lawyer who loves freedom and the rights of the people to keep each other safe with the laws that keep us free! 2A III% !!!

  20. Media taking aim at her targeting abortions now. Calling her a monster and not a supporter of women’s rights.

    Man, the left is nucken futs.

  21. “This “text, history, and tradition” test calls on courts to ask only one question: Is there some kind of historical precedent for a current gun law?”
    And THIS is why we still have the 1934 National Firearms Act. NOBODY EVER CHALLENGED IT IN COURT!
    Even though it is obviously unconstitutional as it infringes the 2nd. Amendment.

    • Charging a $200 tax is infringing, but not nearly the infringement of the total prohibition in, what, 1986? Without that, my .300 blk suppressed SBR would also be select fire.

Comments are closed.