The Supreme Court building as seen from below
The Supreme Court building as seen from below / Stephen Gutowski

Analysis: How Would President Biden’s Supreme Court Pick Rule on Guns? [Member Exclusive]

What does Judge Ketanji Brown Jackson think about guns?

President Joe Biden (D.) nominated her on Friday to replace Justice Stephen Breyer after his retirement at the end of this term. Jackson has a relatively long resume in legal work and has been a judge on the D.C. Circuit since 2012. So, what has she done on guns in that time?

Well, not much that’s concrete.

She’s never decided a Second Amendment case in her time on the court. She’s said very little on the matter from what I’ve been able to find thus far. The only significant insight comes from written responses she gave to a series of questions from Senator Dick Durbin (D., Ill.) during her confirmation to the D.C. Appeals Court last year.

But even those answers were fairly boilerplate. Even when asked about a recent real-world scenario, such as a covid-related stoppage in pistol purchase permit processing, she didn’t show her hand much. She said she would evaluate the case in a way “consistent with the binding precedents of the Supreme Court,” but refused to elaborate any further.

“As a pending judicial nominee and a sitting federal judge, it would be inappropriate for me to opine on the constitutionality of such firearm and religious-liberty restrictions while these issues are being actively litigated in the Supreme Court and other lower federal courts,” Judge Jackson wrote.

Jackson did make a direct comment on the Second Amendment that’s promising for gun-rights advocates, at least at first glance.

“As a sitting federal judge, I am bound to apply faithfully all binding precedents of the D.C. Circuit and the Supreme Court, including all precedents that pertain to the Second Amendment individual right to keep and bear arms,” she wrote. “If I were to be confirmed to the D.C. Circuit, that obligation would not change.”

So, Jackson has said the Second Amendment protects an individual right. That’s significant.

But it’s important to note this is more an acknowledgment she is bound by what the Supreme Court has held in previous decisions than her giving a personal view of the amendment. That nuance is part of the reason why the NRA opposes her nomination.

“Judge Ketanji Brown Jackson has never affirmed that the Second Amendment protects the individual, fundamental right of all Americans to keep and bear arms for the defense of themselves or others,” the gun-rights group said in a statement.

Though, it also pointed to another reason for skepticism: the man who nominated her.

“Consequently, the NRA is concerned with President Biden’s decision to nominate her to the Supreme Court of the United States at a crucial time when there are vital cases that will determine the scope and future of the Second Amendment and self-defense rights in our country,” the NRA said.

The gun-control groups took the opposite track. The main reason they’ve backed the pick is that President Biden made it.

“President Biden has governed as the strongest gun safety president in history, and we have every confidence that Judge Jackson will employ a mainstream, commonsense reading of the Second Amendment,” said John Feinblatt, president of Everytown for Gun Safety.

Honestly, that isn’t a terrible way to judge how Jackson may rule on Second Amendment cases. None of the liberal justices have sided with conservative members of the court on the major Second Amendment rulings thus far (though there have only really been two so there hasn’t been much opportunity for it). It’s not unreasonable to expect Jackson will hold similar views to her other Democrat-appointed counterparts.

However, there are a few reasons to think Jackson could buck that trend. First off, Supreme Court Justices are members of a co-equal branch of government and aren’t bound to the views of the presidents who appoint them. They have life appointments so they are, at least in theory, more isolated from partisan political pressures.

President Biden’s pick was also based more on his promise to appoint a black woman to the court–a historic first–than appoint a judge based more on her judicial ideology. That doesn’t necessarily mean he hasn’t done both in the case of Jackson. But her history indicates she may hold some more nuanced views.

She may even have something of a libertarian streak. In fact, she authored an amicus brief for the Cato Institute in 2009’s Al‐​Marri v. Spagone. The case dealt with the Fourth Amendment and indefinite detention of terror suspects, not gun rights. But it speaks to the way she values individual rights.

So does her time as a public defender. From 2005 to 2007, Jackson served as an assistant federal public defender in Washington, D.C.. The details of gun cases she may have worked on at the time haven’t come to light yet, but recent attacks on strict gun laws by groups of public defenders may provide some insight.

A group of New York public defenders recently filed a brief opposing the state’s strict gun-carry law which is being challenged at the Supreme Court. They argued enforcement of the law is racially biased and effectively strips many Americans of their Second Amendment rights.

Detroit public defenders made a similar argument about how Michigan’s gun-carry law is enforced in the city. They claimed 97 percent of those arrested for carrying without a permit were Black and Black Americans were disproportionately prosecuted for those offenses.

“In practice, CCW charges in Wayne County are not about public safety at all,” Chantá Parker, Managing Director of Neighborhood Defender Services Detroit, said in a statement. “In fact, the data indicates arrest and prosecution for driving while Black. These arrests of otherwise law-abiding citizens is what our legal system has spent so much of its energy on while COVID wreaks havoc on our communities.”

We don’t know if Jackson takes a similarly dim view of how gun laws are applied. But it’s worth considering how other public defenders have come to view their enforcement.

Jackson has also fiercely defended her role as a public defender. In her written responses to Durbin, she was unapologetic about her defense of the accused.

“The primary concern of lawyers who work as public defenders is the same as that of the Framers who crafted the Sixth Amendment of the Constitution,” she wrote, “that, in order to guarantee liberty and justice for all, the government has to provide due process to the individuals it accuses of criminal behavior, including the rights to a grand jury indictment, a fair trial by a jury of one’s peers, and competent legal counsel to hold the government accountable for providing a fair process and otherwise assist in the preparation of a defense against the charges.”

When asked if she was concerned her defense resulted in “more violent criminals—including gun criminals—being put back on the streets” she argued a vigorous defense was vital to a functioning criminal justice system.

“The Constitution guarantees that every person who is compelled to enter into the criminal justice system by virtue of being accused of a crime will receive representation in the context of their interactions with government authorities, and attorneys in the federal public defender’s office perform this crucial function,” Jackson wrote.

Whether any of that means she’d consider siding with conservatives on the court in a major Second Amendment case remains to be seen. But her record seems to indicate there’s at least a chance of it.

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Created by potrace 1.16, written by Peter Selinger 2001-2019


Created by potrace 1.16, written by Peter Selinger 2001-2019

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