President Joe Biden’s Supreme Court nominee was grilled on her judicial beliefs in this week’s confirmation hearing. So, what did she have to say about gun litigation?
Judge Ketanji Brown Jackson had three significant exchanges on guns during her time before the Senate Judiciary Committee. They provided some insight into what she thinks about previous rulings by the Court. What she didn’t say was equally telling.
First, Senator Chuck Grassley (R., Iowa) asked if she personally believed in “the individual right to keep and bear arms is a fundamental right.” She responded not with her personal opinion but what she views the Supreme Court’s precedent to be in the landmark Heller v. DC decision.
“Senator, the Supreme Court has established that the individual right to keep and bear arms is a fundamental right,” Jackson said.
When asked to explain the Court’s precedent in her own words by Senator Marsha Blackburn (R., Tenn.), she added one further detail by saying, “under the Second Amendment there is an individual, fundamental right to keep and bear arms in the home.” She followed up on the Heller precedent in an exchange with Senator John Cornyn (R., Texas). Jackson told Cornyn she would respect the Heller precedent just as she would other precedents of the Court.
“Is it equivalent in terms of its precedence to Roe v. Wade, or would you evaluate it differently?” Cornyn followed up.
“I’m not aware of any ranking or grading of precedents,” Jackson said. “All precedents of the Supreme Court are entitled to respect on an equal basis.”
If you’re a gun-rights advocate, these answers are among the best you could hope for from a Democratic nominee in a modern confirmation hearing. Heller specifically answered whether the Second Amendment provided protections for individuals who want to own a handgun in their own homes for self-defense. Jackson delivers a fair shorthand description of current Second Amendment precedent and even says it should be respected on par with Roe v. Wade and other precedents.
However, that doesn’t mean Jackson is anything close to being a lock to side with expansive readings of Second Amendment protections. Her description of current precedent may be accurate, but it doesn’t guarantee she’ll decide to stand by it in future cases. She wouldn’t be the first Democratic nominee to sign on to an opinion at direct conflict with the findings in Heller despite describing them accurately during her confirmation hearing.
“I understand the individual right fully that the Supreme Court recognized in Heller,” Sonia Sotomayor said during her confirmation hearing in 2009.
But she joined dissenting justices in an opinion that concluded “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense” during 2010’s McDonald v. Chicago.
And, as has become standard for modern nominees, Jackson refused to provide her personal view on Second Amendment protections in any real detail. Senator Blackburn asked her why it’s “constitutionally permissible” for gun rights to be subject to a local official’s “discretionary issuance of a license.” Jackson sidestepped the question by noting the Court was litigating it in NYSRPA v. Bruen.
“The Supreme Court is looking at that very issue in a case before it right now,” Jackson said. “And, as a nominee for the Supreme Court, it’s important that I not speak to it because the Court is deciding this question. It has a pending case, and I believe arguments have even occurred related to it.”
Blackburn then asked whether other rights should be limited by the subjective judgment of “government bureaucrats.”
“The Second Amendment, that right to keep and bear arms, is enumerated in the text of the Constitution,” Blackburn said. “So, the question would be ‘why should it have to have an extra burden?'”
“I understand the question. It’s one that the Supreme Court is looking at,” Jackson responded. “Consistent with past practice and the need to ensure I’m not speaking to issues that are live.”
Still, there’s at least some hope Jackson could buck liberal orthodoxy on gun laws given her answers as well as her background as a public defender and time working with libertarian think tanks on a Supreme Court brief. It may be easy to discount her comments during the hearing as boilerplate recitations of current precedent she won’t be entirely bound by once actually on the Court. However, nothing she said during the hearing gave new reason to believe she’ll be reflexively favorable towards gun restrictions.
That’s probably the best gun-rights advocates can hope for from somebody nominated by somebody with a record of pursuing strict new gun regulations like President Biden. It may even be a reason for pause from gun-control advocates. Though, it’s likely not enough to sway either side’s opinion of her nomination.