Symposium: Barrett’s history-first approach to the Second Amendment

This article is part of a symposium on the jurisprudence of Supreme Court nominee Amy Coney Barrett. Ten years before Justice Antonin Scalia wrote the landmark Second Amendment opinion in District of Columbia v. Heller crystallizing the Constitution’s guarantee of the right to keep and bear arms as an individual right, he was welcoming a young clerk to chambers by the name of Amy Coney Barrett. There were no Second Amendment cases before the Supreme Court that term. In fact, before Heller , the court had not taken up a Second Amendment case since 1939 — and before then, only twice in history, both in the 19th century. The court has decided three Second Amendment cases since Heller in 2008, and if Barrett takes the bench, it’s possible the court would be inclined to again revisit – and potentially further expand – gun rights. Some scholars say the former Scalia clerk may be willing to go to the right of her former boss on guns. Conventional wisdom suggests that the four most conservative justices on the current bench – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – would like to take up more Second Amendment cases. Thomas, in particular, has written that the court gives short shrift to the Second Amendment when compared with other rights. And Kavanaugh wrote last term – in a concurrence to a 6-3 decision finding that a challenge to a New York City gun-safety law no longer presented a live case […]

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