Last week, the Senate Judiciary Committee held hearings on President Joe Biden’s nomination of D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson to the U.S. Supreme Court. As with other recent Democratic nominees to the Supreme Court, Jackson sought to quell concerns that she would work to undermine or undo the Court’s landmark Second Amendment rulings in District of Columbia v. Heller and McDonald v. Chicago. Gun owners, having been misled by a past Supreme Court nominee, should put little faith in Jackson’s statements.
Understanding the important role the Second Amendment plays in American society, senators sought to gauge Jackson’s position on the topic.
On day 3 of the Jackson hearings, Sen. John Cornyn (R-Texas) had the following exchange with the nominee.
Sen. Cornyn: Are you familiar with the Supreme Court’s decision in the Heller case?
Judge Jackson: I am.
Sen. Cornyn: That was a decision by the Supreme Court that recognized the individual right to keep and bear arms under the Second Amendment. Correct?
Judge Jackson: Yes.
Sen. Cornyn: Is that a precedent of the Court?
Judge Jackson: It is.
Sen. Cornyn: And you would respect that precedent?
Judge Jackson: Yes senator, all precedents of the Supreme Court have to be respected.
Sen. Cornyn: It is equivalent in terms of its precedence to Roe v. Wade? Or, would you evaluate it differently?
Judge Jackson: I’m not aware of any ranking or grading of precedence. All precedents of the Supreme Court are entitled to respect on an equal basis.
That same day, Sen. Marsha Blackburn (R-Tenn.) attempted to probe Jackson’s position on the Second Amendment in the following interchange.
Sen. Blackburn: Very quickly, walk me through what current Supreme Court precedent says about the Second Amendment.
Judge Jackson: Thank you, senator. Current Supreme Court precedent says that under the Second Amendment there is an individual, fundamental right to keep and bear arms in the home and the opinion focuses on those –
Sen. Blackburn: You agree it is an individual right not only reserved to militias. Because there are some that keep trying to say that it’s only reserved to militias. But if my memory is correct, you base this on District of Columbia v. Heller.
Judge Jackson: Yes ma’am. The Supreme Court has established it is an individual right.
Sen. Blackburn went on to ask the nominee about whether discretionary gun licensing is permissible under the Second Amendment. Jackson declined to answer the question in light of the ongoing NRA-supported New York State Rifle & Pistol Association v. Bruen Supreme Court case concerning New York state’s may-issue carry licensing regime.
There’s good reason for Jackson to at the very least pay lip service to the individual right to keep and bear arms. Supreme Court nominations are a political process and the political support for the correct, individual right, interpretation of the Second Amendment isn’t in doubt.
A February 2008 USA Today/Gallup poll conducted prior to the Heller decision, asked those surveyed, “Do you believe the Second Amendment to the U.S. Constitution guarantees the rights of Americans to own guns, or do you believe it only guarantees members of state militias such as National Guard units the right to own guns?” The response was unambiguous; 73-percent responded that the Second Amendment guarantees the rights of Americans to own guns, while a mere 20-percent limited that right to state militia members.
A Quinnipiac University poll conducted shortly after the Heller decision, in July 2008, mirrored these results. This poll asked respondents, “Would you support or oppose amending the United States Constitution to ban individual gun ownership?” 78-percent opposed such a measure, while only 17-percent were found to be in favor.
In May 2009, CNN and ORC conducted a similar poll that asked “Which of the following comes closer to your interpretation of the Second Amendment to the U.S. Constitution? In addition to addressing the need for citizen-militias, it was intended to give individual Americans the right to keep and bear arms for their own defense. It was only intended to preserve the existence of citizen-militias, and does not give individual Americans the right to keep and bear arms for their own defense.” Once again, the American public made their position clear; with 77-percent choosing “individual gun ownership” to 21-percent answering “only citizen-militias.”
In the post-Heller and McDonald world of 2018, Quinnipiac asked registered voters "Would you support or oppose repealing the Second Amendment, also known as the right to bear arms?" An overwhelming 79-percent of respondents opposed such a measure.
Considering the politics at play, gun owners should take Jackson’s responses to the Second Amendment questions with a grain of salt. Given another recent Democratic Supreme Court nominee’s deceptive answers concerning the Second Amendment, gun owners should be downright skeptical of Jackson’s statements.
District of Columbia v. Heller, which affirmed that the Second Amendment protects an individual right to keep and bear arms, was decided on June 26, 2008. McDonald v. Chicago, which made clear state and local governments could not infringe on this individual right (incorporation), was decided on June 28, 2010. In the intervening period, President Barack Obama successfully appointed Justice Sonia Sotomayor to the Supreme Court.
During Sotomayor’s July 2009 confirmation hearing, she was repeatedly asked about the Second Amendment and the Heller decision.
Sen. Patrick Leahy (D-Vt.) asked the nominee, “Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?” Sotomayor responded, “Yes, sir.”
Sotomayor went on to opine,
Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.
The Associate Press reported the following on June 11, 2009,
Democratic Sen. Mark Udall of Colorado said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases. In District of Columbia v. Heller, the Supreme Court held that individuals have a constitutional right to guns.
It turns out, Sotomayor was not being completely forthright with Sen. Leahy, Sen. Udall, and the American people.
In McDonald, Justice Sotomayor signed onto Justice Stephen Breyer’s dissent. This was notable, not because the dissent opposed incorporation of the Second Amendment to the states, but because Justice Breyer used the dissent as an opportunity to relitigate Heller. Making clear that Breyer and his cosigners did not accept the outcome in Heller, the dissent concluded by stating, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.”
Gun owners have every reason to be suspicious of Supreme Court nominees without a proven track record of support for the Second Amendment, including Judge Jackson.
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