Amy Coney Barrett: A Proven Pro-Second Amendment Jurist

U.S.A. –-(AmmoLand.com)- The seditious Press has devoted substantial time analyzing and ruminating on Trump’s U.S. Supreme Court list of potential candidates and will continue to do so up to the point of his selecting someone.

Almost certainly, Trump will nominate a woman to replace the late vexatious liberal-wing Associate Justice, Ruth Bader Ginsburg. And, that nomination is imminent.

The current consensus is that Amy Coney Barrett, who presently serves as a Judge for the U.S. Court of Appeals for the Seventh Circuit, will be that person, as she is the front-runner.

Judge Amy Coney Barrett

Judge Barrett is young, personable, and extremely bright. When analyzing and deciding cases, Judge Barrett applies the methodology of the late eminent Justice Antonin Scalia, for whom she clerked after graduating from Notre Dame Law School, fist in her class, Summa Cum Laude.

President Trump nominated Barrett, on May 8, 2017, to serve as a United States Circuit Judge of the United States Court of Appeals for the Seventh Circuit.

Consistent with the methodology employed by the late Associate Justice Antonin Scalia, her brilliant mentor, Judge Barrett construes the Constitution in strict accordance with its original meaning. In that respect, Barrett is Ginsburg’s polar opposite.

Justice Ginsburg, unlike Judge Barrett, unabashedly and unashamedly interposed her own personal predilections into case analysis. Those predilections invariably informed her decisions, eroding the fundamental rights and liberties upon which a free Constitutional Republic and a sovereign people rest.

The attacks against Barrett coming from the Radical Left seditious Press have just started. Indeed, they have been ongoing for some time.

The seditious Press has constantly slammed Barrett’s stance on abortion. That remains its main concern and that, too, of the Radical Left. They haven’t attacked her yet on her jurisprudential approach to deciding Second Amendment cases, but that is almost certainly coming.

The Arbalest Quarrel has wondered about that: What is Barrett’s stance on the Second Amendment?

Fortunately, we have more than a mere clue, we have verified proof of her position, and that proof is consistent with her jurisprudential, methodological approach to case analysis. Judge Barrett is a firm Constitutional originalist and textualist, in the mold of her mentor, the late eminent Associate Justice, Antonin Scalia.

A fairly recent Second Amendment case, Kanter vs. Barr, 919 F.3d 437 (7th Cir. 2019), in which Judge Barrett took part, provides us with a definitive answer.

The Plaintiff in Kanter had pleaded guilty to one count of mail fraud, a non-violent crime.

“Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case is whether the felon dispossession statutes—18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m)—violate the Second Amendment as applied to Kanter.”

Upon his release from Prison, and payment of restitution, Plaintiff applied to the Attorney General for relief from disability so that he could exercise his Second Amendment right to keep and bear arms.

The 7th Circuit Court Majority pointed out that, “. . . the Attorney General may remove the prohibition on a case-by-case basis if an applicant sufficiently establishes ‘that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.’”

The particulars of Kanter’s felony conviction, as set forth by the Court Majority that decided against Kanter, are as follows:

“On May 24, 2011, Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341 based on a shipment of the noncompliant inserts to a podiatrist in Florida. Section 1341 carries a maximum penalty of twenty years in prison and a $250,000 fine. Kanter was sentenced to one year and one day in prison and two years of supervised release. He was also ordered to pay a criminal penalty of $50,000, and he reimbursed Medicare over $27 million in a related civil settlement.

Kanter has since served his time and paid his criminal penalty, and he has not been charged with any additional criminal activity. However, because of his felony conviction, he is permanently prohibited from owning a firearm under federal and Wisconsin law.”

The Constitutionality of the Wisconsin law was placed squarely in question. The lower District Court found against the Plaintiff because of his felony conviction and irrespective of the fact that he had served out his sentence and paid full restitution.

Two of three of the Appellate Court Judges, the majority, who ruled against the Plaintiff Petitioner, Kanter, framed the issue as a question whether individuals who have been convicted of non-violent felonies, no less than those who have been convicted of violent felonies, fall within a class of individuals who can never enjoy their Second Amendment right to own and possess firearms.

Why the Court majority framed the issue in this way is perplexing since the majority never bothered to formulate an answer to it or a resolution of it. This suggests that the Court had tacitly accepted as a given that citizens should never, can never, be absolved of their past misdeeds, regardless of the nature of their crimes, grounded, therefore, on the mere assumption that a convicted felon can never and must never be perceived as rehabilitated or capable of rehabilitation, at least, as to matters apropos of the Second Amendment, namely, matters pertaining to firearms ownership and possession. The Majority, thereupon concludes that felons remain, forever, a threat to public safety.

Having tacitly decided that the Plaintiff Petitioner cannot lawfully own and possess firearms even though, as the Court Majority was compelled to acknowledge, Kanter had paid his full debt to society, the Court pretended to employ a balancing test as between non-violent convicted felons who had paid their debt to society and who subsequently wish to exercise the inalienable right of the people to keep and bear arms, on the one hand, and the State’s desire to promote public safety by keeping guns from the hands of Americans whom the State deems to be—by the very fact of a prior felony conviction—violent felony or non-violent felony notwithstanding—a perpetual threat to society, essentially, then, wholly beyond redemption, at least in the eyes of the Court.

Applying that bald, unsupported assumption to Kanter, the Court said, “Categorical prohibitions on the possession of firearms by felons are ‘presumptively lawful,’ even in disqualifying nonviolent felons like Kanter.”

The Court thereupon determined that the government had met its burden in denying Kanter the right to own and possess firearms, even though the government really had not, asserting, nonetheless, that the government has shown that prohibiting even nonviolent felons like the Plaintiff Petitioner, Kanter from possessing firearms is substantially related to its interest in preventing gun violence. The reader should note that the expression, ‘substantially related to an important Government purpose,’ is a court created intermediate scrutiny means balancing test. The Heller Court, in 2008, had considered the tenability of means balancing of interests between a fundamental right a person’s interest in exercising a fundamental right, and the State’s interest in precluding a person from exercising that fundamental right on the basis of some presumed State desire to protect the

How so? The Court majority didn’t say. Obviously the Court Majority didn’t care. The Majority simply determined before the fact that a man convicted of a violent crime can never be permitted to exercise the fundamental right to keep and bear arms, after the fact and the Court constructed its argument to cohere with its predetermined decision.

The dissenting Judge, Amy Barrett, though, did care. She began her dissent with the following perceptive remarks, which demonstrate her erudition, laser-like legal and logical reasoning, and profound respect for the fundamental, natural, immutable, illimitable, unalienable right of the people to keep and bear arms:

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislature 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. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

Judge Barrett added that Federal law and Wisconsin State Statute “would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment. . . .

At this point, however, neither Wisconsin nor the United States has presented any evidence that Kanter would be dangerous if armed. Instead, as the majority notes, ‘Kanter is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions,’ and he is ‘employed, married, and does not use illicit drugs, all of which correspond with lower rates of recidivism.’”

In her concluding remarks, Judge Barrett, citing the seminal Second Amendment Heller case, made the pertinent points that,

“If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce—or for the court to assess—evidence that nonviolent felons have a propensity for dangerous behavior. But Heller forecloses the ‘civic right’ argument on which a virtue limitation depends. And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, that disarming Kanter substantially advances that interest. On this record, holding that the ban is constitutional as applied to Kanter does not ‘put the government through its paces,’ but instead treats the Second Amendment as a ‘second-class right’ [a point articulated by Associate Justice Clarence Thomas] subject to an entirely different body of rules than the other Bill of Rights guarantees. I therefore dissent.”

Incidentally, in her dissent, Judge Barrett cited, with approval, to Judge Thomas Hardiman’s Second Amendment analysis in the oft-cited Second Amendment case, Binderup v. AG of United States, 836 F.3d 336, 357 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments). Judge Hardiman is at present a U.S. Appellate Judge on the U.S. Court of Appeals for the Third Circuit. Judge Hardiman is also on President Trump’s shortlist to sit on the High Court, as he was when President Trump ultimately decided to go with Judge Neil Gorsuch, in 2016, just weeks into President Trump’s first term in Office. Judge Hardiman was the first runner-up. President Trump recognizes the importance of the U.S. Supreme Court in preserving the structure of our Nation in the form the founders conceived for it. Nominating a jurist to sit on the High Court was one of President Trump’s first acts as President, and one that he had promised the electorate; a promise he kept.

As a staunch defender of the Second Amendment, Judge Hardiman would, as with Judge Barrett, make an outstanding Justice, and he would be the ideal replacement for Associate Justice Stephen Breyer, a Bill Clinton nominee, who is 82 years old, the oldest Justice on the Court, in the event that President Trump nominates Judge Barrett to take the seat on the High Court, vacated by Associate Justice Ruth Bader Ginsburg, upon the Associate Justice’s recent death.

Both Judge Hardiman and Judge Barrett utilize the jurisprudential methodology of the late Associate Justice Antonin Scalia when analyzing and deciding cases, and they share the same reverence for the U.S. Constitution and for the Bill of Rights, as conceived by the framers of the Constitution.

Of course, the Radical Left Democrats and other Soros funded Marxists don’t give a damn about fundamental rights or logic. They are inherently nihilistic, stubborn, irascible, irrational, obtuse, smugly self-righteous, and abjectly hateful. And they have other plans for our Nation, for our Nation’s Constitution, and for our Nation’s citizenry. And, in the near future, their aim is to do their damnedest to thwart the confirmation of any further Trump nominee to the U.S. Supreme Court followed by attempts, by hook or by crook to defeat a Trump victory in November. If successful in that endeavor, they plan to resurrect Associate Justice Ruth Bader Ginsburg in the form of another liberal-wing activist jurist—perhaps, Merrick Garland, whom Barack Obama sought to sit on the High Court to replace Associate Justice Antonin Scalia, after the late Associate Justice’s untimely and mysterious death.

 

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