Trump Nominated One-Third of the Supreme Court. Its First Gun Safety Test May Come Soon.
Courts that the Trump administration packed with gun extremists imperil gun safety efforts.
Thanks to the appointment of three radical judges to the Supreme Court under President Trump, a far-right conservative majority now dominates.
In part, that means Chief Justice Roberts no longer presents an obstacle to the gun lobby’s attempts to invalidate popular and effective gun safety laws. A case widely expected to be appealed to the Supreme Court will afford this conservative bloc the opportunity to challenge longstanding gun safety laws.
The case involves a bedrock federal gun law that prohibits gun possession by individuals convicted of felonies. Should the five far-right justices overturn this law, they would be diverging radically from the principles established in the two most significant Second Amendment cases in modern history. Heller (2008) and McDonald (2010) held for the first time that Americans have an individual right to possess guns for self-defense.
At issue in the case is whether individuals convicted of non-violent felonies should be able to possess guns. For over 50 years, federal law has prohibited individuals convicted of any felony from gun purchase and possession. The Heller ruling itself, authored by the late Justice Antonin Scalia, stated that nothing in the US Constitution casts doubt on this law.
Justice Barrett’s Radical Approach to the Second Amendment
The vast majority of federal judges, including more than 100 judges appointed by Repulican presidents, have also rejected challenges to the law. The arrival of Justice Amy Coney Barrett on the Court, however, could lead to the eradication of this law—and potentially, a wide array of other foundational gun safety laws.
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Justice Barrett was appointed to the federal Seventh Circuit appeals court by President Trump in 2017. During the three years Barrett spent as a judge before joining the Supreme Court, she had the opportunity to review a similar case that weighed the gun possession rights of people convicted of crimes against the greater community’s public safety rights.
The majority of the Seventh Circuit panel upheld the law, with two judges appointed by Republican presidents casting the deciding votes. But Justice Barrett dissented, stating that while she would approve of categorically depriving individuals convicted of non-violent felonies of their constitutional right to vote, she would assess their suitability to possess a gun on a case-by-case basis.
Barrett’s view that Second Amendment rights are superior to many, if not most, other constitutional rights is a strong indication of her willingness to disregard precedent and invalidate other gun laws widely accepted as constitutional. Unfortunately, decisions jeopardizing commonsense gun safety policies may be coming from the federal judiciary for decades to come.
Trump’s Courts Legacy
Far more extreme than past Republican appointees, NRA-approved judges nominated by President Trump now make up over 30% of the federal judiciary. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, as well as other Trump-appointed appellate court judges, have advocated in dissenting opinions for overturning fundamental gun laws such as those that limit gun access by people with a history of serious mental illness.
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These judges have also voted against other frequently upheld gun laws such as limits on large-capacity magazines and background checks on ammunition sales. With less than two months left in office, President Trump has not relented in his efforts to fulfill the gun lobby’s vision of the judiciary, continuing to nominate judges who aim to radically expand the Second Amendment by striking down gun laws.
The extremist views of the NRA and the judges who share its vision do not represent the majority of Americans—or even the majority of gun owners. Americans have consistently demonstrated their support for constitutional and commonsense gun safety laws that are now imperiled by a judiciary that has been captured by the NRA.
President-Elect Biden will have an opportunity come January 20, 2021 to begin nominating judges who value court precedent and public safety. Yet his efforts may be hampered by Senator McConnell’s trademark obstructionism should McConnell maintain his position as majority leader after the Georgia run-off elections in January. Whatever the outcome of this election, we will continue to raise public awareness about lifesaving gun laws, defend these laws in court, and rally gun safety supporters.
Americans understand that the Second Amendment protects both rights and public safety. It’s time for our judges—and the elected leaders who appoint them—to recognize that as well.
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