Like Scalia, Amy Coney Barrett shares an ‘originalist’ view on Second Amendment

The Senate Judiciary Committee hearings for Judge Amy Coney Barrett come as the Supreme Court’s nascent Second Amendment jurisprudence is at an important inflection point. So far, the court has clearly held only that the Constitution protects the right to keep a handgun in one’s home for self-protection. The most practically important questions that have not yet been answered have to do with carrying firearms in public. The justices have hinted that there is such a right, but they have not determined what limits on that right they will recognize, or how far legislatures may go in restricting it.

For the past 10 years, the Supreme Court has been dragging its feet by refusing to hear any cases that raise this issue. Several members of the court have protested against this inaction, and it looks as though the next justice may be able to get the court off the dime. If that turns out to be Barrett, we can expect her to provide an intelligent and faithful interpretation of the Constitution.

Such an approach is particularly important on this issue at this time because America has been experiencing an extraordinary plague of violent political unrest. Most of the riots and other forms of political violence in recent years have been connected to specific allegations of police misconduct and to broader claims about pervasive racial bias in the use of lethal force by police.

Most dramatically, the nation was swept this summer by mass protests after several incidents in which such bias was imputed to police officers who were involved in confrontations that turned violent. No one at the time could have known what mixture of truth and fiction there was in the assumptions made by those who took to the streets. Despite this uncertainty, and perhaps in part because of it, many of the demonstrations were marked by arson, looting, beatings and murders of innocent victims.

Most strikingly, some state and local governments were visibly tolerant of the rioters. Public officials discouraged or forbade the use of standard crowd-control measures, and in some cases prevented the police from taking any action to protect innocent bystanders or their property. One city has experienced nightly riots for months on end. Another simply surrendered an area within its legal jurisdiction to thugs who had begun by attacking a police station. In some cases, prosecutors were disinclined to enforce the law against individuals who had been arrested. Prominent politicians promoted the “defunding” of the police, and some jurisdictions took concrete steps in that direction. Violent crime spiked sharply in some places, probably in part because the police became less aggressive in enforcing the law.

Barrett was a law clerk for the late Justice Antonin Scalia, and she shares his “originalist” approach to constitutional interpretation. As it happens, Scalia wrote the seminal 2008 opinion in District of Columbia v. Heller, which protects the right to keep a handgun in one’s home. Last year, Barrett wrote a dissenting opinion in a Second Amendment case, which is even more proficient than Scalia’s.

In Kanter v. Barr, the majority upheld a federal statute that imposed a lifetime firearms disability on a man who had been convicted of mail fraud. Barrett’s dissent thoroughly refuted a popular theory according to which the Founders thought the right to keep and bear arms is relinquished on conviction for any felony. She concluded that the historical evidence shows that legislatures at the time sought only to disarm classes of people who were considered dangerous.

But how much discretion should legislatures have in defining such classes? Barrett argued that a total and permanent deprivation of the right to possess arms would have to be substantially related to the prevention of violent crime, as well as closely tailored to that goal. She then showed that the government’s evidence failed to demonstrate that mail fraud is a reliable predictor of future gun violence, and that the government presented no evidence that this particular convicted felon had shown any proclivity for violence.

Heller signaled that the first places to look for the meaning of the Second Amendment are its text and the historical evidence that bears on how it was understood by those who enacted it. Barrett was faithful to that sensible teaching, as well as to the principle that definitive answers supplied by those sources are binding on the courts. But most questions won’t be so easily answered. And when they’re not, judges have a great deal of discretion about the nature and degree of the burden they put on the government to justify infringements on the liberty of American citizens.

Barrett showed how to exercise that discretion by engaging in legal, rather than policy, analysis. Her Kanter dissent is not the work of an ideologue. Rather, she conscientiously sought to respect what Scalia’s Heller opinion called the “interest balancing by the people” that is reflected in the Second Amendment.

This summer’s civil unrest may be a prelude to a series of increasingly aggressive legislative disarmament efforts, which will call for careful and fearless review by the courts. Neither the Supreme Court nor most of the lower federal courts have recently exhibited much care or much courage in their approach to the Second Amendment. Her Kanter dissent promises that a Justice Barrett would bring both of those virtues to her work, which would be good for the court, good for the Constitution, and good for American liberty.

Nelson Lund is a professor of Law at George Mason University’s Antonin Scalia Law School.