Legal scholars say Amy Coney Barrett’s judicial philosophy could settle legal stalemates and disagreements that have seen lower federal courts deliver a variety of rulings on gun rights.
Barrett’s adoption of what experts refer to as a “text, history and tradition” philosophy—which relies on the text and historic applications of the Second Amendment, rather than the applications of “balancing tests” of individual rights and government interest to determine whether or not a gun law is constitutional—could be revolutionary for Second Amendment cases.
“In practice, the Court’s adoption of the ‘text, history, and tradition’ test would mean a lot of previously settled circuit precedent gets unsettled,” Jacob D. Charles, executive director of Duke University’s Center for Firearms Law, told the Washington Free Beacon.
In 2019’s Kanter v. Barr, Barrett argued in a dissent that “all people have the right to keep and bear arms but that history and tradition support Congress’s power to strip certain groups of that right.” After studying founding-era documents, Barrett concluded that nonviolent felons should not be subject to the same gun restrictions that apply to violent criminals. Mark W. Smith, presidential scholar and senior fellow in law and public policy at the King’s College in New York City, told the Free Beacon the approach favored by Barrett is in stark contrast to the balancing tests lower courts have employed in the past.
“Balancing tests are favored by the liberal justices and left-leaning lower courts because they serve as an easy excuse for eliminating the right to possess and use firearms,” he said. “It allows liberal jurisdictions to invoke ‘public safety’ without any empirical support and to deny constitutional rights carte blanche. These balancing tests allow judges to pay lip service to the Second Amendment while eroding this most fundamental individual right.”