Is there a right to carry a weapon into the Michigan State House? Trump supporters think there is, and the president is recruiting an army of poll watchers, potentially armed, to stand guard over his interests on Election Day.
Expanding gun rights is not just a theoretical exercise, it’s happening. And with Amy Coney Barrett likely to soon sit on the Supreme Court, the welcome mat is out for gun rights activists to test the limits of what might be possible in a gun-friendly 6-3 Supreme Court.
Barrett sent a powerful signal in her dissent last year in Kanter v Barr in the Seventh Circuit Court of Appeals, where she argued that non-violent felons should not lose their right to acquire arms, as currently required by law, though she is fine with felons losing their right to vote.
Her dissent put her to the right of dozens of Republican-appointed judges across the country who have upheld the prohibition on felons having guns, and even to the right of her mentor, the late Justice Antonin Scalia. Once confirmed, Barrett would likely be the fifth vote on the Supreme Court to strike down gun safety regulations Scalia had pointedly allowed even as he established for the first time in constitutional law with District of Columbia v Heller in 2008 an individual’s right to bear arms.
The 5-4 Heller decision established that individual right to bear arms in one’s home for self-defense, but left a lot of questions about how far that right extends beyond the home. With the specter of possible violence around the election, states are trying to figure out how to protect people at polling places and at protests. Michigan’s Secretary of State Jocelyn Benson last week issued a directive saying firearms are not permitted at polling places.
You might think that would be obvious, but only six states have such a clearly stated ban: Arizona, California, Florida, Georgia, Louisiana, and Texas. Some other battleground states lacking any laws to prevent firearms at polling places—North Carolina, Pennsylvania, Virginia, and Wisconsin—do have tools to prevent voter intimidation, according to a joint report from the Coalition to Stop Gun Violence and Guns Down America, “Guns Down At The Polls: How States Can and Should Limit Firearms at Polling Places”
Gun purchases spiked 67 percent this September over a year ago, a trend accelerated by the pandemic and largely unfounded fears about guns being confiscated and gun stores shut down should Democrats gain power. According to the report by the gun safety groups, the FBI in July of 2020 conducted more than 3.6 million firearm background checks, the third highest month since the inception of such checks in 1998.
“This isn’t an abstract academic discussion about the scope of the Second Amendment. It has real world consequences,” says Chelsea Parsons, who heads Gun Violence Prevention at the Center for American Progress. “If you follow his (Trump’s) Twitter feed, I call it pushing the Second Amendment button,” she continues, referring to Trump’s tweets to “liberate” Michigan, which was followed by a plot to kidnap Governor Gretchen Whitmer. “What happened in Michigan personified the risk when you have very high levels of gun ownership, a president constantly stoking the fear guns might be taken away and then urging his supporters to form a Trump Army. This is really dangerous.”
Barrett is an originalist who believes the Constitution must be interpreted exactly as the Founders intended. “Her views and how she thinks about the Second Amendment are not grounded in modern day reality,” Parsons told the Daily Beast.
“She doesn’t give any attention to the cause of modern-day gun violence. Looking at the intent of the framers when there were no assault weapons is very inappropriate in an age of mass shootings.”
In August, a three-judge panel of the Ninth Circuit anchored by a Trump judge ruled 2-1 that California’s ban on large capacity magazines is unconstitutional, signaling a steady stream of litigation headed to Washington with the intent to test the newly expanded conservative SCOTUS majority’s willingness to strike down commonsense gun laws and extend the right of self-defense within the confines of home to open carry rights everywhere.
California’s attorney general is petitioning the full Ninth Circuit to review the decision on the large-capacity magazines, but whatever the final ruling, legal experts agree it will be open season on gun laws once Barrett is seated. In the 12 years since the narrowly decided Heller decision, there’s been a SCOTUS moratorium on gun cases that has given lower courts the room to find that most gun-safety laws are well within the Second Amendment.
Earlier this year, the Supreme Court turned away almost a dozen challenges to gun laws, prompting a heated dissent from Justice Clarence Thomas, now the court’s longest serving member, joined by Brett Kavanaugh, the newest member, decrying the court’s “decade-long failure to protect the Second Amendment.”
Adam Skaggs, chief counsel and policy director at the Giffords Law Center to Prevent Gun Violence, told the Daily Beast that Chief Justice Roberts’ reluctance to take up controversial gun rights in the decade since Heller led the court to decline cert on 10 petitions that the conservative justices wanted.
“There are four on the court who have an appetite to expand gun rights,” says Skaggs. They are Thomas, Kavanaugh, and Justices Alito and Gorsuch. “Barrett changes the math. She’s very likely the fifth vote to strike down some of the regulations that keep our communities safe.”
In addition to changing the math, the soon-to-be-seated Barrett could tip the court so firmly to the right that Roberts, an institutionalist, could be powerless to keep the “Barrett Court” from overtaking the mainstream legacy he has worked so carefully to preserve. If he is so outnumbered on the right that joining the court’s three liberals can’t change the outcome, he faces a choice between being on the losing side of 5-4 decisions on big cultural issues, or leading a 7-2 court that is out of step with the country.