Before addressing the subject of this column, I wish to express an opinion on an issue which appeared in the recent grammar school brawl laughingly called a “presidential debate.” Good Ol’ Joe Biden followed his party’s strategy of denouncing Donald Trump as a crypto-fascist. He seized on the president’s failure to condemn the Proud Boys as a fascist-nazi-racist-nasty hate group. The president yielded the point after the debate was over by condemning this group. I have no knowledge about the ideological convictions of this group, apart from displays of the American flag. All I know is that they have confronted Antifa rioters in Portland and Seattle. I enjoyed watching tapes of the Proud Boys knocking the rioters on their cabooses. I might have enjoyed watching a mob of Quakers doing the job more, but we must all settle for whatever is on offer.

Moving on to a more interesting issue, we can expect a lot of hectic chatter about Judge Barrett and her nomination to the U.S. Supreme Court. Most of the emotion on the subject will be centered on speculation about what positions she may take on hot-button issues. These speculations will not concern her legal analysis. Her opponents and partisans will not show much interest. They are only interested in whether she will arrive at the desired outcomes. Some liberals fear that her Catholic convictions will bend her in the wrong direction. It’s not that they object to Catholics as such, Good Ol’ Joe is Catholic after all and they are comfortable with him. Their problem is with Catholics who believe their church’s teachings.

Barrett is known as a disciple of the late Justice Scalia, who has argued that a Judge who is faithful to his oath of allegiance to the Constitution has to be prepared to accept legal decisions which will make him uncomfortable or, alternatively recuse himself from judgement. This is a reassuring principle but it’s not conclusive.

Leaving aside her religious beliefs Judge Barrett has a judicial record relevant to the Second Amendment. In Kanter v. Barr (2019) her decision accepted bans on gun ownership by persons

who have a clear record of a history of violence. She argued against a blanket rule that applies even to felons who have no such a record. She wrote that this it was “wildly over-inclusive,” to ban an honest-to-goodness felon convicted of redeeming large quantities of out-of-state bottle deposits in Michigan. Maine has a law against people importing recyclables for redemption. It’s far from unlikely that some undetected scamp has already committed this crime. (Confessing here: I didn’t look it up to find whether Maine classifies this malfeasance as a felony.)

Her position on “Kanter” gives Barrett the clearest record on the Second Amendment of any recent nominee. On broader Second Amendment issues the Supreme Court has ruled that it includes protection of the right of self-defense. Ginsberg’s death leaves Justices Sotomayor, Breyer, and Kagan as determined defenders of the government’s exclusive right to possession of fire-arms. Since the 2008 Heller and 2010 McDonald decisions which ruled against a governmental power to completely ban gun ownership was passed with five votes, Barrett’s views are of special interest to citizens who believe in a right of self-defense.

Since the nominee is commonly described as a disciple of Antonin Scalia his ruling on Heller, backed by Chief Justice Roberts and Justices Kennedy, Thomas and Alito, is our best guide on how Barrett may interpret the Second Amendment. Dick Heller, a special police officer authorized to carry a handgun while on duty, requested exemption from restrictions on keeping his weapon at home. Under the District of Columbia law he was obliged to disable the gun by taking it apart or fixing it with a trigger lock.

Scalia’s “originalism” doctrine argues that the Constitution must be understood by the voters. Judges must read its words and phrases as they are used in a normal and ordinary way.

The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” He argued that the “preface” about the militia announces a purpose and that the prefatory part does not limit or expand the scope of the operative part. He pointed out that “shall not be infringed” recognizes the existence of a pre-existing right, i.e., the Amendment did not create a right, it recognizes a right.

Scalia quotes Justice Ginsburg’s interpretation of “bearing arms” in an opinion she wrote for an earlier case. She wrote “as the Constitution’s Second Amendment indicates wear, bear, or carry upon the person or upon the person, or in the pocket for the purpose of being armed and ready for offensive or defensive action in the case of a conflict with another person.” Scalia reinforced this proposition by pointing out that nine state constitutional provisions written in the 18th century and the first two decades of the 19th century established the citizens’ right to “bear arms in defense of themselves and the state,” or bear arms in defense of himself of the state.”

If Judge Barrett is called upon the decide a Second Amendment case while sitting on the Supreme Court it’s seems certain that she will follow her mentor in upholding the right of self-defense it was written to protect. Chuck Schumer, Nancy Pelosi and the other Democrats in Congress are hoping for a liberal judge who will support the views of the liberal judges who will support the dissents in McDonald case when they wrote that the U.S. Constitution does “not include a general right to keep and bear firearms for purposes of private self-defense. . . . the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.”

Supporters of Second Amendment rights should take note and make their candidates know about their concerns.

John Frary of Farmington, the GOP candidate for U.S. Congress in 2008, is a retired history professor, an emeritus Board Member of Maine Taxpayers United, a Maine Citizen’s Coalition Board member, and publisher of FraryHomeCompanion.com. He can be reached at [email protected]


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