Where does Judge Amy Coney Barrett stand on the Second Amendment?

on Oct7
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While the rash of coronavirus cases in the White House may have upended election events and halted stymied political processes all around, it’s not slowing the push to confirm President Trump’s Supreme Court nominee, Judge Amy Coney Barrett, with the Senate Judiciary Committee set to begin the formal confirmation hearings on Monday.

And when it comes to the matter of gun control, her admission to the bench is poised to shake up the status quo — with or without a second Trump term.

So, where does Judge Barrett stand in regard to the Second Amendment?

“Judge Barrett, unlike many of her colleagues on the circuit courts, takes the Second Amendment seriously, using the text, structure, and history of the Constitution to understand and apply the rights protected,” Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies and publisher of the Cato Supreme Court Review, told Fox News.

“If she is confirmed, John Roberts would no longer be the median or deciding vote on this issue, among others, so we can expect the court to finally start fleshing out the scope of the right to keep and bear arms and give lower courts guidance on how to evaluate Second Amendment challenges.”

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Judge Amy Coney Barrett speaks after President Trump announced Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

Judge Amy Coney Barrett speaks after President Trump announced Barrett as his nominee to the Supreme Court, in the Rose Garden at the White House, Saturday, Sept. 26, 2020, in Washington. (AP Photo/Alex Brandon)

According to some legal analysis, Chief Justice John Roberts has long been considered an outlier on gun issues – a conservative who could go either way – thus, the current four right-leaning judges have previously refrained from taking on Second Amendment affairs to avoid Roberts dissenting in the closing opinion.

“Judge Barrett considers herself a strict ‘originalist’ when it comes to constitutional interpretation, so one has to assume she clearly believes in the right to bear arms,” said Mark Williams, principal of the government relations firm Ferox Strategies, and former chief of staff for Congressman Mike Conaway, R-Texas. “It certainly would tilt the court to the conservative side of the argument. Especially considering some of the rulings and opinions she has recently made.”

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Barrett is known to have presided over just a couple of gun-related cases, which have been dissected to examine her projected stance on the right to bear arms. Most notably, in Kanter v. Barr, a Second Amendment case decided last year by the Seventh Circuit Court of Appeals, Barrett “demonstrated that she understands and appreciates the need to look to the Founders to understand the full scope of Second Amendment rights,” underscored Alan Gottlieb, executive vice president of the Second Amendment Foundation (SAF).

“She dissented from an opinion upholding federal and state bans on firearm ownership by a man who had pleaded guilty to one count of mail fraud for falsely representing that certain therapeutic shoe inserts were Medicare-approved,” he surmised. “While recognizing the undeniably compelling interest in protecting the public from gun violence, she concluded that a blanket ban on owning firearms by nonviolent felons is unconstitutional.”

At the center of the case was a Wisconsin man named Rickey Kanter, who owned a firm that specialized in therapeutic footwear. In 2004, he submitted a selection of therapeutic shoe inserts to the Centers for Medicare & Medicaid Services for review to decide if they would reimburse patients who purchased them. The request was, at first, rejected and then approved following a revised application.

Kanter, nonetheless, sold both the authorized and nonauthorized renditions of the inserts to podiatrists and was eventually nabbed by prosecutors in Florida on charges of mail fraud, after sending a box filled with the unapproved product. He pleaded guilty to a single felony count, and with that came the standard lifelong prohibition of lawfully owning a firearm.

Yet Kanter went on to sue both the U.S. and the state of Wisconsin, contending they were both violating his constitutional right. In January 2018, a federal district court dismissed his argument. And then in March 2019, a three-judge panel in the Seventh Circuit upheld the lower Court’s ruling in a 2–1 decision – with Barrett, the sole objector.

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She stressed in a 38-page dissent that the Founding Fathers sought to block only violent felons from gun possession, writing: “Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe, and nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence.”

Moreover, in the 2018 7th Circuit case the United States v. Watson, Barrett concurred with a suspect that the police in Indiana did not possess a reasonable suspicion to stop and investigate his vehicle for potential wrongdoing, based merely on an unverified tip.

In this situation, Barrett underscored, “citizens should be able to exercise the constitutional right to carry a gun without having the police stop them when they do so.”

Since promulgating a monumental opinion on District of Columbia v. Heller in 2008, cementing an individual right to bear arms, and then followed up by another landmark opinion concerning McDonald v. Chicago two years later, the Supreme Court has stayed away from probing petitions around the breadth of the ruling.

A customer looks at an antique shotgun at Cherry's Outdoor World in Ottawa, Ohio, Jan. 23, 2020. (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

A customer looks at an antique shotgun at Cherry’s Outdoor World in Ottawa, Ohio, Jan. 23, 2020. (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

So while Second Amendment cases typically don’t climb to the highest echelons of the U.S. legal system, observers say her selection could both bring more suits to the calendar and fundamentally shape those that are floating – perhaps most significantly, a case regarding a New York City gun law slated to be heard in the forthcoming term.

The ordinance restricts where licensed owners are allowed to t