U.S.A. –-(AmmoLand.com)- As the contentious confirmation hearings begin for Supreme Court nominee Judge Amy Coney Barrett, anti-gun groups are voicing concerns she will endanger so-called “gun safety laws” and headlines in various publications perpetuate what is essentially a myth about restrictive gun control, while a George Mason University professor has just published a lengthy Liberty & Law Research Paper supporting the notion of individual gun rights and the necessity of the Second Amendment.
USA Today’s recent headline about Judge Barrett repeated the myth: “Trump Supreme Court nominee Amy Coney Barrett puts years of gun safety progress at risk.” Rights activists consider it bad enough for the media to lean left, but even worse for them to adopt the gun prohibition lobby's vocabulary.
Mother Jones headlined its piece, “Amy Coney Barrett’s Confirmation Could Be a Huge Setback for Gun Safety Laws.”
In fact, these are not “safety” laws at all, but “controls” and the National Review just pointed readers to the 41-page paper authored by Prof. David Bernstein at George Mason University’s Antonin Scalia Law School that will raise some eyebrows.
Perhaps Bernstein’s most interesting observation for anyone who has been living in the Pacific Northwest over the past seven months is found on Page 3 of his report. It might be seen as “strong medicine” by advocates of concealed carry as an individual right.
“Yet the looting, rioting, and general mayhem on display in the Summer of 2020 in cities throughout the United States,” Bernstein writes, “often unimpeded by law enforcement, buttresses the argument that a proper right to armed self-defense must include provision for law-abiding Americans to protect themselves outside their homes.”
It’s bothersome stuff to Barrett critics who are concerned her appointment to fill the high court vacancy left by the late Justice Ruth Bader Ginsburg will open a door, if not a floodgate, for consideration of Second Amendment cases. Since 2010’s ruling in McDonald v. City of Chicago—the landmark Second Amendment Foundation case that nullified Chicago’s handgun ban and more importantly incorporated the Second Amendment to the states via the 14th Amendment—the high court has rejected several gun rights cases including 10 earlier this year. Many believe it’s because Chief Justice John Roberts might not be counted on to cast a pro-rights vote. If Judge Barrett is confirmed, that worry goes away, but is replaced by another concern among gun prohibitionists that the Second Amendment will be expanded.
For gun rights advocates, it’s not a question about expansion, but of Second Amendment restoration; as SAF’s Alan Gottlieb has often explained, “Making the Second Amendment great again.”
As noted in an Oct. 10 CNN report quoting CNN Supreme Court analyst Steve Vladeck, “It seems likely that the confirmation of Judge Barrett would remove that uncertainty and open the pipeline to a flurry of cases, perhaps ranging from the constitutionality of criminal felon-in-possession statutes to large-capacity magazine bans.”
The American Bar Association has rated Judge Barrett “well qualified,” according to the Washington Times. No member contended she is not qualified, the newspaper said.
But more than 30 gun prohibition lobbying groups sent a letter to Senators Mitch McConnell, Charles Schumer, Lindsey Graham and Dianne Feinstein Oct. 8 declaring, among other things, “The Supreme Court already includes four justices who have publicly indicated an eagerness to expand the meaning of the Second Amendment in a way that is at odds with over two hundred years of American jurisprudence and long traditions of gun regulations, contradicts the meaning and purpose of the Second Amendment, and could significantly undermine gun safety laws enacted by democratically-elected legislatures across the country. This unsupported interpretation of the Constitution is not only at odds with the Framers’ vision, but with the overwhelming majority of American people who want elected officials to enact evidence based gun safety laws to address the gun violence public health crisis. Therefore, we fear that rushing this nomination would force a dangerous ‘guns everywhere’ agenda on the country — an agenda that your constituents have repeatedly rejected at the ballot box.”
And during his opening remarks, Monday, perennially anti-gun Sen. Richard Blumenthal (D-CT) expressed worries that Judge Barrett would add energy to the high court for the purpose of removing strict gun control laws.
But rights are not supposed to be subject to popular vote. That’s what makes them “rights.”
And that brings the focus back around to Prof. Bernstein’s analytical essay. The opening paragraph in his introduction says, “The individual right to keep and bear arms has two primary rationales. The first is to provide citizens with a means to oppose tyrannical government. The second is to provide citizens with a means to defend themselves, their loved ones, and their property from criminal aggression.”
Translation: It is not about hunting deer or ducks.
A few paragraphs later, Bernstein observes, “The unwillingness or inability of local authorities to stop looting, rioting, and other lawless and violent behavior is powerful evidence that, contrary to the Heller dissenter’s position, Americans still need firearms to defend themselves.:
Bernstein’s article offers a scathing criticism of authorities in the Pacific Northwest cities of Seattle and Portland.
“Perhaps the most outrageous example of local officials’ dereliction of their law enforcement duties comes from Seattle,” he writes. “For twenty-three days in June, armed leftists occupied six blocks of the city’s Capitol Hill neighborhood, declaring the area a “police-free” zone they called the “Capitol Hill Autonomous Zone” (‘CHAZ’), later changed to “Capitol Hill Occupied Protest” (‘CHOP’). Bands of self-appointed, gun-toting “guards” set up encampments and patrolled the area, looted stores, smashed windows, and prevented residents from leaving or visitors from entering— in the process devastating businesses located in the occupied blocks.”
Turning his attention to Portland, Bernstein added, “As of this writing…Portland has had three months of nightly riots. By June 24, only a few weeks into the riots, they had caused over $4 million in property damage and $18 million in lost revenues for Portland businesses. The city police’s efforts to defend ordinary people against the lawlessness were underwhelming at best. On August 16, for example, which marked the eightieth night of demonstrations, municipal authorities reported that over sixty 911 calls (reporting theft, vandalism, suspicious activity, hit and runs, and burglary, among other things) went unanswered.”
On Page 31 of his report, Bernstein writes, “Because the police and other law enforcement officers have been so derelict in stemming the violence that occurred in cities across the United States in the Summer of 2020, armed citizens throughout the country have taken matters into their own hands.”
Over the past several months, according to the National Shooting Sports Foundation, and FBI National Instant Check System data, millions of people have purchased guns for the first time in their lives. Whether this has any effect on how they vote will be determined next month.
But all of those gun sales rattle the gun prohibition lobby. They do not want another pro-Second Amendment justice on the high court. A close look will find many of these people also support efforts to “re-imagine law enforcement,” whatever that means, and reduce police department budgets, which would subsequently lead to police manpower cuts.
Bernstein focuses on this in his closing paragraphs, stating:
“In the absence of police protection, some Americans, such as those living in the CHOP zone in Seattle, were subject to a reign of terror by armed anarchists who destroyed businesses, restricted exit and entry, and used illegal force against residents. Others, either by themselves or in groups, banded together to defend their safety and their businesses via force of arms…
“In constitutional law terms,” he concludes, “all this supports the notion that the right to keep and bear arms for self-defense purposes should be extended beyond the home. During this past Summer’s unrest, many Americans have either made the choice to defend themselves, or had that choice forced upon them when attacked with no viable retreat possible. Try telling them that the right to bear arms in self-defense is obsolete thanks to the police.”
It's a scenario anti-gun Senators on the Judiciary Committee, and their cheerleaders in the gun prohibition lobby, do not care to see. That is why opposition to Judge Barrett’s confirmation is so visceral. They do not, as expressed by Sen. Blumenthal, want a Justice Barrett helping to swing the pendulum back where it belongs by chipping away at decades of gun control that has, in some cases, turned the right to keep and bear arms, into a government-regulated privilege.
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