The death of Justice Ruth Bader Ginsburg may have paved the way for a historic shift in the makeup of the U.S. Supreme Court.
Indeed, if the nomination of Amy Coney Barrett, proposed by President Donald Trump, is confirmed, the highest court would have a strong conservative majority. This change could be reflected in litigation over gun laws, and the Supreme Court’s interpretation of the Second Amendment.
In determining whether a gun law is constitutional or not, Barrett follows a philosophy called “text, history and tradition,” which is based on respect for the original text and historical applications of the Second Amendment.
This approach contrasts with the liberal line of law called “balancing tests” which proposes to take into account not only individual rights but also the interest of the government in changing gun ownership regulations.
According to Joseph Blocher, Professor of Law at Duke University, this second framework, which is the one that predominates today, is quite complacent about gun regulation: only about 9 percent of the legal cases that reached the courts of appeal, that was driven by gun advocates, have succeeded in overturning laws that restrict this right.
But it is here that the doctrine that proposes to interpret the Constitution textually appears as an alternative that is gaining popularity among jurists. And, should Barrett make it to the Supreme Court, she could provide the Second Amendment with a new set of rules.
In a May 2019 interview, Barrett focused on the importance of the history of the Founding Fathers in her analysis of the Second Amendment and described herself as an ‘originalist’ (a judge who interprets the Constitution literally).
Indeed, the National Review described Barrett as a “champion of originalism.”
An example of this is her dissenting vote in 2019 in Kanter v Barr, which barred a Wisconsin man from owning a gun because he had been imprisoned for mail fraud.
In the rationale for her decision, Barrett wrote that the Second Amendment “confers an individual right, intimately connected with the natural right of self-defense and not limited to civic participation.”
Barrett indicated that non-violent offenders should not be subject to the same gun restrictions that apply to violent offenders. She argued that, “all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right.”
In this context, Professor Blocher notes that Barrett’s arrival on the Supreme Court could result in lower courts beginning to evaluate gun laws based on this “text, history and tradition” approach, something that has so far generally not happened.
“That’s a sea change in doctrine,” says the Duke University expert.
Mark W. Smith, a senior fellow in law and public policy at King’s College in New York City, explains to the Washington Free Beacon that Barrett’s approach is indeed in stark contrast to the balancing tests that lower courts have employed thus far.
“Balancing tests are favored by the liberal justices and left-leaning lower courts because they serve as an easy excuse for eliminating the right to possess and use firearms,” he says.
“It allows liberal jurisdictions to invoke ‘public safety’ without any empirical support,'” he argues, asserting that this approach erodes “this most fundamental individual right [of self-defense].”
It should be noted that Barrett is not the only Trump nominee who has adopted a “text, history and tradition” approach to gun rights cases.
As a federal appellate court judge in 2011, now-Supreme Court Justice Brett Kavanaugh wrote a dissenting opinion in which he argued that gun regulations should be strictly rooted in “text, history, and tradition” and not be subject to scrutiny such as consideration of public safety, which he argued, is a matter for Congress.
Kavanaugh, in 2015 also argued that the assault weapons ban and the D.C. gun registration scheme conflicted with the Second Amendment.
Only four votes of the nine justices are required for the Supreme Court to agree to hear a case on the use of weapons.
According to Blocher, the highest court probably already has the necessary votes but perhaps the cases have been blocked so far by Chief Justice John Roberts.
“Once there’s five, then it doesn’t really matter which way the chief justice goes, there’ll be five confident votes in favor of a broad gun rights ruling,” he says.