The Supreme Court has elected not to take Second Amendment cases for the last decade, despite interest by some justices in doing so.
Four judges must agree to take a case in order for it to be heard.
And Amy Coney Barrett’s confirmation would officially tip the scales in a 6-3 Conservative majority.
Will the Supreme Court finally begin to rule on gun rights?
Time to Take Second Amendment Cases
It was Barrett’s mentor, the late Justice Antonin Scalia, who weighed in on the scope of gun laws.
In 2008, Scalia’s opinion on District of Columbia v. Heller held that Washington, D.C.’s ban on handguns was unconstitutional.
Furthermore, he interpreted the Constitution as guaranteeing an individual right to bear arms, independent of a militia.
The year 2011 marked the last Supreme Court ruling on a Second Amendment case.
It's when the court decided that the right to “keep and bear arms” applies to state and local governments.
Chicago’s ordinance banning the possession of handguns was shot down.
When it comes to gun regulations, lower courts have created a balanced system.
They weigh the reasoning behind the gun law (i.e. public safety) to determine if a local government is justified in passing the law.
Without direction from the Supreme Court, they are not required to justify the laws using history or tradition.
This is how lower courts are able to uphold rulings that seem to be unconstitutional.
Going Back to Historical Precedents
Gun rights activists have pushed for a “text, history and tradition” approach to gun regulations.
This would require historical precedent for gun laws in order for them to be valid laws.
Justice Brett Kavanaugh, Trump’s last appointee to the high court, used this history and tradition approach when he wrote his dissent to Washington, D.C.’s ban on semiautomatic rifles.
Kavanaugh concluded that because citizens have been allowed to own semiautomatic rifles since the early twentieth century, they should continue to be allowed to do so today.
Gun rights litigators have found hope in this history and tradition argument.
This would indicate that many modern laws have no historical precedent to support their existence.
Those in favor of strict gun control argue that modern times call for updated rulings.
And thus, changing technology requires a new set of laws.
Judge Barrett May Change This
Barrett subscribes to the history and tradition approach, having been the only judge to dissent in a 2019 ruling that a nonviolent felon be barred from owning a firearm.
Judge Barrett concluded that the Second Amendment leaves legislatures the power to prohibit dangerous people from possessing guns but that felons do not lose their Second Amendment rights solely because of their status as felons.
In the 2019 case, the federal government and the state of Wisconsin failed to show that disarming all nonviolent felons protects public safety.
In a May 2019 interview, Barrett focused on the importance of founding-era history to her Second Amendment analysis and described herself as an originalist.
Barrett’s support of the history and tradition approach would put her in good company on the Supreme Court, where she would join Kavanaugh, Justice Neil Gorsuch, and possibly Justice Samuel Alito.
Perhaps the Supreme Court will finally break its silence on the scope of the Second Amendment.
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