The Trace is an antigun group. I subscribed to their email just to gain insight into their warped minds. Here is a recent article they sent out that I thought was informative and might be of interest.
The Supreme Court fight and the future of gun laws
Judge Amy Coney Barrett began meeting with Senators this week ahead of what Republicans hope to be an expedited confirmation process that installs her on the Supreme Court before Election Day. Her appointment would solidify a 6-3 conservative majority and have profound repercussions — potentially within weeks if election lawsuits end up before the high court as some predict.
Barrett’s confirmation is also likely to usher in a sea change in how the court approaches the Second Amendment, as Trace contributor Olivia Li has been reporting. Part of that comes from Barrett’s legal philosophy. Even many Republican-appointed judges have considered a local government’s justifications for enacting a gun reform — for instance, public safety concerns — in assessing its constitutionality. But Barrett prefers a “text, history, and tradition” test that calls on courts to restrict themselves to historical precedent in determining whether a regulation is legal.
To break it all down for you, I asked Olivia to walk me through what Barrett’s ascension to the court could mean for gun violence prevention.
Why would adding Barrett to the Court be so potentially significant for gun laws in the United States? Conservatives already have a majority.
Here’s the important math: You need five justices on your side to win a case, but only four to agree to put your case on the docket. Barrett’s confirmation would mean that there are enough justices to put Second Amendment cases on the docket, which the Court has refused to do for a decade. Yes, there are already five conservative Justices, but according to law professors I’ve spoken with, Chief Justice John Roberts is seen as a wild card on guns. The other four conservatives didn’t want to put a Second Amendment case on the docket only to have Roberts side against them in the final opinion.
So just how big a challenge would a Justice Barrett pose for the gun reform movement?
The gun safety movement is pro-regulation, advocating for restrictions like red flag laws, possession bans for felons, universal background checks, strict permit rules for public carry, bans on high-capacity magazines — the list goes on. The text, history, and tradition analysis that Judge Barrett favors — and which Justices Kavanaugh and Thomas already embrace — could find some of those gun violence prevention laws unconstitutional. It is impossible to predict exactly which policies are vulnerable to a historical test on the Supreme Court. But looking at dissents by judges who have used it in past cases offers pretty strong clues.
Justice Kavanaugh would have struck down D.C.’s weapons registration requirements, and its ban on semi-automatic rifles. Justice Thomas would have struck down New Jersey’s “may issue” standard for concealed gun permits. Judge Barrett said that blanket felon dispossession laws are unconstitutional when applied to nonviolent offenders; a judge on the 9th Circuit said something similar about mental illness-related dispossession laws; a 9th Circuit opinion recently declared California’s ban on high-capacity magazines unconstitutional. (Though the judges in that case used the current balancing test, they took a really history-heavy approach.)
If Barrett is confirmed and the text, history, and tradition test becomes the Court’s standard for gun cases, could progressive lawmakers craft gun restrictions that still meet that standard?
If it replaces the current balancing test — and that’s a big if — government officials would need to be able to defend their laws in historical terms. The pro-gun side has already been doing that for decades. A ton of intellectual capital (and NRA money) went into the project of redefining the right to bear arms as an individual right, and it finally paid off with Heller. With Barrett on the Court, we might see lawyers on the pro-regulation side spending more time researching the history of gun laws and developing scholarship on the history of gun restrictions. –Tom Kutsch, newsletter editor
WHAT TO KNOW THIS WEEK
During the first presidential debate, President Trump refused to denounce white supremacist and armed militia groups who’ve committed violence during this year’s protests and urged his followers to patrol polling sites. In a Washington Post column, gun scholar Robert Spitzer explained how fears of election intimidation, specifically with guns, long predate the Trump era.
On the day of the debate, an FBI field office issued a warning about the threat of far-right boogaloo extremists, identifying the period between presidential election and inauguration as a “potential flashpoint.”
Trump administration officials were directed to make public comments sympathetic to the 17-year-old charged with fatally shooting two protesters in Kenosha, according to internal DHS talking points obtained by NBC News.
Chicago released a comprehensive violence reduction plan that leans heavily into treating gun violence as a public health crisis. The blueprint prioritizes community anti-violence organizations, but lacks detail on costs and how the city intends to cover them.
A federal judge ruled that former NRA donors have standing to continue a fraud suit against the gun group. Meanwhile, New York regulators delayed a hearing over civil charges brought against the NRA for violating state insurance laws.
The California attorney general is suing the ATF to compel the bureau to define ghost gun assembly kits as firearms, which would subject their buyers to background checks.
Military suicides have increased by as much as 20 percent this year compared to the same period in 2019. Army officials cite pandemic-related isolation, financial disruptions, remote schooling, and deployments made longer by mandatory quarantines.
The storied gunmaker Remington will be broken up and sold following a bankruptcy auction. It’s not clear what the dissolution means for Sandy Hook families in their lawsuit against the company.
MORE FROM OUR REPORTERS
The case that could topple the gun industry’s special legal protections. For the last 15 years, the Protection of Lawful Commerce in Arms Act has protected gunmakers and sellers from most liability lawsuits. That special status was put in jeopardy when a Pennsylvania appeals court deemed the law unconstitutional this week. If the ruling stands, gun companies won’t be able to use the law to dismiss a lawsuit in the state. If it’s appealed all the way to the Supreme Court and struck down, the gun industry could be exposed to the kinds of product-liability suits that forced sweeping reforms in the pharmaceutical, tobacco, and automotive industries, legal experts tell Champe Barton.
The growing movement to send counselors to some 911 calls instead of cops. A quarter of people shot and killed by cops in the U.S. over the last five years suffered from mental illness, according to The Washington Post’s fatal police shootings database. As part of the nationwide movement to reimagine policing, a handful of cities are experimenting with programs that they say provide a potentially life-saving alternative to traditional law enforcement responses — and save millions of dollars in the process. Advocates told Jennifer Mascia why crisis workers can make better first responders for people with severe mental illness.
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