WASHINGTON Justice Amy Coney Barrett is just starting to make her mark at the Supreme Court.
On Wednesday, her vote flipped the courts approach to restrictions on attendance at religious services during the coronavirus pandemic. While Justice Ruth Bader Ginsburg was alive, the court had allowed such limits, in California and Nevada, by 5 to 4 votes. After Justice Barrett succeeded her, she joined the courts four most conservative justices to strike down restrictions in New York.
Those same four justices are now on high alert for a promising case in which to expand Second Amendment rights, having written repeatedly and emphatically about the courts failure to take gun rights seriously. Justice Barrett seems poised to supply the fifth vote they need.
A Second Amendment case decided last week by the federal appeals court in Philadelphia is a promising candidate for Supreme Court review, not least because it presents an issue on which Justice Barrett has already taken a stand.
It concerns Lisa M. Folajtar, who would like to buy a gun. But she is a felon, having pleaded guilty to tax evasion, which means under federal law she may not possess firearms.
She sued, arguing that the law violated her Second Amendment rights. A divided three-judge panel of appeals court rejected her challenge, saying that committing a serious crime has consequences. It can lead to losing the right to vote, to serve on a jury or to have a gun.
The ruling adopted the position of the Trump Justice Department. The right to keep and bear arms is analogous to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote, the right to serve on a jury and the right to hold public office, lawyers for Attorney General William P. Barr told the appeals court.
In dissent, Judge Stephanos Bibas, a former law professor appointed to the court by President Trump (and the author of a scathing decision on Friday rejecting the presidents challenge to the election results in Pennsylvania), wrote that the framers of the Constitution would not have allowed lawmakers to bar felons convicted of nonviolent crimes from owning guns.
Lisa Folajtar asks us to treat her as an equal member of society, he wrote. Though her tax-fraud conviction affects some of her privileges, it does not change her right to keep and bear arms.
Judge Bibas wrote that his analysis had drawn heavily from a dissent last year in a similar case concerning a man convicted of mail fraud.
That dissent was written by Justice Barrett when she was a judge on the federal appeals court in Chicago. The law forbidding people with felony convictions from owning guns, she wrote, should not apply when the crimes in question were nonviolent.
History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons, she wrote. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.
Voting and jury service are different, she wrote, because those are rights that depend on civic virtue.
The Supreme Court has not issued a major Second Amendment decision since a pair of rulings, in 2008 and 2010, established an individual right for law-abiding citizens to keep guns in their homes for self-defense. Beyond that, the justices have said almost nothing about the scope of the right, and lower courts have sustained many kinds of gun control laws.
Before Justice Barretts arrival, the courts four most conservative justices had repeatedly written that the court should return to the subject of the Second Amendment
In 2017, for instance, Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, wrote that they had detected a distressing trend: the treatment of the Second Amendment as a disfavored right.
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous, Justice Thomas wrote. But the framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.
In June, however, the court turned down some 10 appeals in Second Amendment cases. Since it takes only four votes to grant review, there is good reason to think that the courts conservative wing was unsure it could secure Chief Justice John G. Roberts Jr.s vote.
Justice Barretts arrival changes the calculus. Should Ms. Folajtar appeal to the Supreme Court, it is a good bet that Justice Barrett will find her arguments persuasive.
Still, the 2008 decision, District of Columbia v. Heller, would seem to create a hurdle for Ms. Folajtar. The majority opinion, written by Justice Antonin Scalia, included an important limiting passage, the price of Justice Anthony M. Kennedys crucial fifth vote.
Nothing in our opinion, Justice Scalia wrote, should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.
Last year, the court agreed to hear a challenge to a New York City gun-control ordinance. But it ended up dismissing the case in April, after the city repealed the ordinance.
Dissenting from that ruling, Justice Samuel A. Alito Jr. noted that the Heller decision recognized that history supported the constitutionality of some laws limiting the right to possess a firearm, including ones prohibiting possession by felons and other dangerous individuals.
That last phrase, which did not appear in the earlier decision, may be significant. In shifting the focus to dangerousness, it seemed to open the door to the position taken by Justice Barrett.
More:
Justice Barretts Vote Could Tilt the Supreme Court on Gun Rights - The New York Times
- Assemblyman Tim Donnelly Introduces Sweeping Handgun Carry License Reform Bill AB 1563 [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Ex-Supreme Court justice pushes gun grab, 2nd Amendment rewrite [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Party of guns: 2016ers speak to NRA [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Michigan 2014 Second Amendment March - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Georgia Governor Signs Law Allowing Firearms In Public Places - Andrew Napolitano - Stuart Varney - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Tony DeTora's Second Amendment Commitment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Second Amendment Man Drug PSA - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Do you exercise your Second Amendment Rights while riding? - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Kira Davis - My 2nd Amendment Story - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Gabby Franco for NRA News: "Freedoms Are Not Untouchable" - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- SafeandVaultStore GS592820 Second Amendment Gun Safe - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Oathbreaking Tyrant: Justice John Paul Stevens Wants To Change The Second Amendment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Dear LiberalViewer: Second Amendment Response - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Justice John Paul Stevens Wants To Change The Second Amendment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- God & The Second Amendment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Amend The Second Amendment? - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Justice John Paul Stevens on the Second Amendment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- CCRW Televised Forum - Mental Health, Second Amendment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Obama lying supporting second amendment - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Second Amendment Rally Saturday - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Second Amendment and other t-shirts support the cause - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- 2nd Amendment - Laws [Last Updated On: April 27th, 2014] [Originally Added On: April 27th, 2014]
- Second Amendment - U.S. Constitution - FindLaw [Last Updated On: April 27th, 2014] [Originally Added On: April 27th, 2014]
- Rep. Larry Pittman talks about Second Amendment - Video [Last Updated On: April 27th, 2014] [Originally Added On: April 27th, 2014]
- billkeyz talking about gun control the Second Amendment NRA - Video [Last Updated On: April 27th, 2014] [Originally Added On: April 27th, 2014]
- US Senate Candidates Iowa - Second Amendment - Video [Last Updated On: April 27th, 2014] [Originally Added On: April 27th, 2014]
- NRA leadership uses Bloomberg gun control push to rally members [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Open Carry Or Concealed Carry In California & Does The NRA Oppose - Video [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Greg Brannon Nuke Second Amendment right - Video [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- SafeandVaultStore GS724027 Second Amendment Gun Safe - Video [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Supreme Court Gun Carry Rights; Drake v. Jerejian, Pending petition - Video [Last Updated On: April 29th, 2014] [Originally Added On: April 29th, 2014]
- Letter: NRA opposes reasonable responses [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- Common sense calls for repeal of second amendment [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- GUNS: Amendment words to fight over [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Gun lobby group receives open government award [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- NFL Player Brags About Shooting a Skunk to NRA - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Disgruntled Motel Owner Uses Second Amendment To Fight Government Officials #ZHG - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Psychiatrists to push NWO gun control - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Second Amendment Action Day 2014 - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Second Amendment Action Day 2014 at the Pennsylvania Capitol - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Second Amendment Action Day - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Second Amendment Action Day Rally - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Pyro Planet Second Amendment & Star Spangled Blast - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Gun rights: Times have changed since the creation of the Second Amendment [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Billy Johnson for NRA News: "Infringed Rights" - Video [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Second Amendment group marches in El Paso [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- The Second Amendment (Part 1 of 2) - Video [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- New Jersey Gun-Carrying Limit Left Intact by High Court [Last Updated On: May 5th, 2014] [Originally Added On: May 5th, 2014]
- Supreme Court Wasnt Serious about the Second Amendment [Last Updated On: May 5th, 2014] [Originally Added On: May 5th, 2014]
- Staying away from guns and Gitmo [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- US Supreme Court refuses to consider gun-rights case [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Success For Gun Owners & 2nd Amendment Defenders In 2014 [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Yen on Second Amendment - Video [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Second Amendment Shootout - Video [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Gun Depot USA Second amendment target shooting. - Video [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Second Amendment in real time boils down to politics [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- Second Amendment - Laws [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- Alan Gottlieb Supporting Compromise of your Second Amendment Rights - Video [Last Updated On: May 9th, 2014] [Originally Added On: May 9th, 2014]
- Lawmakers divided on bill that restricts EBT use [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- Defenseless Nigerian Men, No Second Amendment #BringBackOurGirls Boku Haram - Video [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- The Second Amendment (Part 2 of 2) - Video [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- Flawed argument I [Last Updated On: May 11th, 2014] [Originally Added On: May 11th, 2014]
- Minera Panama S.A. and Petaquilla Minerals Limited Sign $60 Million Agreement [Last Updated On: May 11th, 2014] [Originally Added On: May 11th, 2014]
- Interview Interrupted by State Highway Administrator - Video [Last Updated On: May 12th, 2014] [Originally Added On: May 12th, 2014]
- Lawmakers debate proposed EBT restrictions - Video [Last Updated On: May 12th, 2014] [Originally Added On: May 12th, 2014]
- N.J. Gov. Chris Christie under the gun over ammo bill, as White House beckons [Last Updated On: May 13th, 2014] [Originally Added On: May 13th, 2014]
- Guns and Supreme Court: Is Second Amendment a Privilege, Not a Right? [Last Updated On: May 13th, 2014] [Originally Added On: May 13th, 2014]
- Guns to be focus of rally [Last Updated On: May 15th, 2014] [Originally Added On: May 15th, 2014]
- DHS Says "Hands Off" VIP Terrorist - Video [Last Updated On: May 15th, 2014] [Originally Added On: May 15th, 2014]
- INFOWARS Nightly News: with David Knight Monday May 12 2014: Plus Special Reports - Video [Last Updated On: May 15th, 2014] [Originally Added On: May 15th, 2014]
- Gun rights advocates hope for convention impact [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- Det Bowers on the Second Amendment - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- Trevor Stewart - V18 - AUDIO - THE RACIAL NETWORK & THE SECOND AMENDMENT - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- Trevor Stewart - V17 - THE RACIAL-NETWORK & THE SECOND AMENDMENT - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- The Second Amendment: A Biography - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- Knowing Your Rights.... Yes we have them! - Video [Last Updated On: May 18th, 2014] [Originally Added On: May 18th, 2014]
- The Second Amendment (Game) - Video [Last Updated On: May 18th, 2014] [Originally Added On: May 18th, 2014]
- We Have Rights! An Animation On The Second Amendment - Video [Last Updated On: May 18th, 2014] [Originally Added On: May 18th, 2014]
- Letter: 2nd amendment purposes [Last Updated On: May 20th, 2014] [Originally Added On: May 20th, 2014]
- Senator Ted Cruz's father Rafael Cruz on the Second Amendment - Video [Last Updated On: May 20th, 2014] [Originally Added On: May 20th, 2014]