United States – -(AmmoLand.com)- Assuming Second Amendment supporters work hard to ensure that the Supreme Court doesn’t get packed, the nomination of Amy Coney Barrett, if successful, could shift the court decisively in favor of upholding our Second Amendment rights. This is a huge opportunity, but you can bet that anti-Second Amendment extremists will pull out all the stops.
Barrett has long been compared to Antonin Scalia in her judicial outlook, something noted in the media. She also has a powerful dissent that indicates she is willing to apply Heller. This points to a sixth justice who would be, at least nominally in support of our Second Amendment rights.
Two years ago, the retirement of Anthony Kennedy led to one shift towards upholding the Second Amendment. However, the disappointing ruling in New York State Rifle and Pistol Association vs. New York City, arguably prompted by Sheldon Whitehouse threatening the Supreme Court, and the decision to not take up multiple cases shows that Roberts may have been intimidated, and could have voted up uphold anti-Second Amendment laws.
Barrett, by replacing Justice Ruth Bader Ginsburg, changes the dynamic in two ways. First, she becomes a fifth nearly-certain vote to strike down restrictive laws that violate our Second Amendment rights. This would mean legal precedent would, for the foreseeable future, block semi-auto and magazine bans among other things. The right case could even strike down licensing schemes like those in Illinois, New Jersey, and New York.
Second, Barrett’s presence could also force Chief Justice Roberts to join that five-vote majority for pragmatic reasons, if nothing else, based on how the Supreme Court works. Specifically, answering the question, “Who writes the opinion?” When the Chief Justice is among the majority, he decides who authors the opinion of the court, with other justices free to add concurring opinions.
When the Chief Justice of the Supreme Court isn’t among the majority, the most senior associate justice of those in the majority picks the author of the court’s main opinion. As of this writing, that means that Clarence Thomas, who has routinely excoriated the Supreme Court’s consistent refusal to follow up on the landmark Heller and McDonald cases, would pick the author of the court’s main ruling – and there is no rule saying he can’t pick himself.
Based on the dissents Thomas has authored, Second Amendment supporters would be understandably eager to see what sort of opinion he would author – one that would, in all probability, be quite sweeping. Roberts may seek to instead try to pick an author (perhaps himself) to try to stick to a narrower ruling, and sideline Thomas or other justices to a concurring opinion.
That being, said, all of this may not matter if the Supreme Court is packed. National Review notes that Biden and Democratic Senators are refusing to say if they will pursue a court-packing scheme if they are in power after the 2020 election. Their silence should be taken as an admission that they will, but they lack the honesty to tell the American people not only that they would do so, but who would be among the new members of this packed court. Second Amendment supporters should support the National Rifle Association’s Institute for Legislative Action and Political Victory Fund to not only secure Judge Barrett’s confirmation, but to establish firewalls in the House, Senate, and White House against packing the court.
About Harold Hutchison
Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post, Strategypage.com, and other national websites.