WASHINGTON – Justice Amy Coney Barrett is just beginning to make her mark on the Supreme Court.
His vote on Wednesday reversed the court’s approach to restrictions on participation in religious services during the coronavirus pandemic. While Judge Ruth Bader Ginsburg was alive, the court authorized such limits in California and Nevada by 5 to 4 votes. After Judge Barrett took over from her, she joined the court’s four most conservative justices in breaking down restrictions in New York City.
These same four judges are now on high alert for a promising case in which to expand Second Amendment rights, after repeatedly writing and insisting that the court did not take gun rights seriously fire. Judge Barrett looks set to provide the fifth vote they need.
A Second Amendment case decided last week by the Philadelphia Federal Court of Appeals is a promising candidate for Supreme Court consideration, not least because it presents an issue on which Justice Barrett has already taken a position.
This concerns Lisa M. Folajtar, who would like to buy a gun. But she’s a criminal, having pleaded guilty to tax evasion, which means under federal law she can’t own guns.
She filed a lawsuit, arguing the violated her Second Amendment rights. A divided panel of three appeals court judges dismissed his challenge, saying committing a serious crime had consequences. This can lead to losing the right to vote, to sit on a jury – or to have a gun.
The decision adopted the position of Trump’s Justice Department. “The right to keep and bear arms is analogous to other civil rights which have historically been the subject of confiscation by those convicted of crimes, including the right to vote, the right to be part of a jury and the right to hold public office, ”attorneys for Attorney General William P. Barr told the appeals court.
In dissent, Judge Stephanos Bibas, a former court-appointed professor by President Trump (and author of a scathing ruling on Friday dismissing the president’s challenge to the Pennsylvania election results), wrote that Constitution draftsmen would not have allowed lawmakers to ban criminals convicted of non-violent crimes from owning firearms.
“Lisa Folajtar asks us to treat her as a full member of society,” he wrote. “Although his conviction for tax evasion affects some of his privileges, does not change his right to keep and bear arms.”
Judge Bibas wrote that his analysis drew heavily on dissent last year in a similar case involving a man convicted of mail fraud.
This dissent was drafted by Justice Barrett when she was a judge of the Chicago Federal Court of Appeal. The prohibiting those convicted of felony from owning firearms, she wrote, should not apply when the crimes in question are non-violent.
“History does not support the proposition that criminals lose their Second Amendment rights solely because of their status as criminals,” she wrote. “But he supports the proposition that the state can withdraw the right to bear arms from a category of people it deems dangerous.”
Voting and jury service are different, she wrote, because they 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 firearms in their homes in self-defense. . Beyond that, judges said next to nothing about the scope of the law, and lower courts have supported many types of gun control laws.
Prior to Judge Barrett’s arrival, the court’s four most conservative justices had written repeatedly that the court should return to the subject of the Second Amendment.
In 2017, for example, Judge Clarence Thomas, joined by Judge Neil M. Gorsuch, wrote that they had detected “a distressing trend: the treatment of the Second Amendment as a disadvantaged right.”
“For those of us who work in marble rooms, guarded at all times by a vigilant and dedicated police force, the safeguards of the Second Amendment may seem outdated and redundant,” Judge Thomas wrote. “But the supervisors made a clear choice: they reserved for all Americans the right to bear arms in self-defense.”
In June, however, the court dismissed a dozen appeals in Second Amendment cases. Since it only takes four votes to grant a review, there is good reason to believe that the Conservative wing of the court was not sure it could get the vote of Chief Justice John G. Roberts Jr.
The arrival of Judge Barrett changes the calculation. If Ms Folajtar appeals to the Supreme Court, it’s a safe bet that Justice Barrett will find her arguments convincing.
Yet the 2008 decision, District of Columbia v. Heller, seems to create an obstacle for Ms. Folajtar. The majority opinion, written by Justice Antonin Scalia, included an important limiting passage, the prize of Justice Anthony M. Kennedy’s crucial fifth vote.
“Nothing in our opinion,” Justice Scalia wrote, “should be taken as a doubt about the long-standing prohibitions on the possession of firearms by criminals.”
Last year, the court agreed to hear a challenge to a New York City gun control order. But he ended up dismissing the case in April, after the city repealed the ordinance.
Disagreeing with this ruling, Judge Samuel A. Alito Jr. noted that the Heller ruling “recognized that history supported the constitutionality of certain laws limiting the right to own a firearm,” including those “prohibiting possession. by criminals and other dangerous individuals ”.
This last sentence, which was not in the earlier decision, may be significant. By shifting attention to dangerousness, it seemed to open the door to the position taken by Judge Barrett.