SCOTUS BLOG.COM October 20, 2020 – Ten years before Justice Antonin Scalia wrote the landmark Second Amendment opinion in District of Columbia v. Heller crystallizing the Constitution’s guarantee of the right to keep and bear arms as an individual right, he was welcoming a young clerk to chambers by the name of Amy Coney Barrett.
There were no Second Amendment cases before the Supreme Court that term. In fact, before Heller, the court had not taken up a Second Amendment case since 1939 — and before then, only twice in history, both in the 19th century.
The court has decided three Second Amendment cases since Heller in 2008, and if Barrett takes the bench, it’s possible the court would be inclined to again revisit – and potentially further expand – gun rights. Some scholars say the former Scalia clerk may be willing to go to the right of her former boss on guns.
Conventional wisdom suggests that the four most conservative justices on the current bench – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – would like to take up more Second Amendment cases. Thomas, in particular, has written that the court gives short shrift to the Second Amendment when compared with other rights. And Kavanaugh wrote last term – in a concurrence to a 6-3 decision finding that a challenge to a New York City gun-safety law no longer presented a live case – that the court should take up another Second Amendment case “soon.”
Four votes is enough to take up a case, and the court has had plenty of opportunities to do so. At the end of last term, the justices spent weeks considering 10 different cert petitions in gun-rights cases but ultimately declined to hear any of them. Some court watchers believe that some members of the court’s conservative wing became hesitant to accept new gun cases because they were unsure of how Chief Justice John Roberts would vote on the merits. Barrett would change that calculus as a justice likely to take an expansive view of Second Amendment protections.
That’s reading the tea leaves, though, when there’s really only a pinch in the cup. Barrett has written only one opinion on the Second Amendment during her three years on the U.S. Court of Appeals for the 7th Circuit. It was a dissent.
The case was Kanter v. Barr. Notably, the questionnaire that Barrett submitted to the Senate Judiciary Committee requested that she list her “most significant cases.” Kanter got top billing. [full article]