What Judge Ketanji Brown Jackson believes about the Constitutionality of subjective gun-licensing schemes was left unanswered on Wednesday.
President Joe Biden’s (D.) nominee to fill the upcoming vacancy on the Supreme Court refused to answer a question about subjective permitting laws during her confirmation hearing. Senator Marsha Blackburn (R., Tenn.) asked Jackson to explain why gun rights can be subject to a local official’s “discretionary issuance of a license.” Jackson responded she could not answer the question since it was at issue in a gun-carry case before the Court.
“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.”
Jackson appeared to be alluding to New York State Pistol and Rifle Association v. Bruen. The Court is set to decide whether New York’s restrictive gun-carry permitting process, which gives local judges discretion not to issue full carry permits to applicants they don’t believe have a “good reason” or special need for one, violates the Second Amendment. The case has already gone through oral arguments, and the Court could issue its ruling at any time.
Blackburn followed up and asked whether other rights should be subject to the arbitrary 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.”
Supreme Court nominees often refuse to directly answer questions on how the Court should decide specific issues of law during their confirmation hearings. But what Jackson believes about gun licensing schemes could affect how the Supreme Court rules in more than just the New York case. Several states also require licensing for buying handguns, and Hawaii requires them for shotgun and rifle purchases as well. The Court may hear numerous gun permitting cases in the years ahead, and Jackson’s view of how far Second Amendment protections extend may play a significant role.
Jackson did provide some more insight into her understanding of Second Amendment precedents.
“Current Supreme Court precedent says that under the Second Amendment there is an individual, fundamental right to keep and bear arms in the home,” said when asked to explain the Court’s rulings.
The comments are similar to ones she made in response to questions from Senator Chuck Grassley (R., Iowa) on Tuesday. Jackson affirmed the Supreme Court ruling in the landmark Heller v D.C. case and later told Senator John Cornyn (R., Texas) it deserves “respect on an equal basis” to other precedents like that set in Roe v. Wade. But the new comments are the first where Jackson described the precedent in her own words.
Still, Jackson has only described what the Supreme Court has previously ruled on the Second Amendment. She has yet to explain her personal view on the Second Amendment.
The confirmation hearings are scheduled to continue through Thursday.
4 Responses
If Ms. Jackson was hesitant to comment on ongoing litigation; it might have been interesting to ask her instead about the strategic and coordinated mooting of NYSRPA v. NYC instead.
If that is indeed a “dead case”: it would be interesting to have seen her response to the frustration of legal review as a public defender. Even a bland answer to that question would be telling into how she perceives current exploitation (in both meanings) of our legal framework.
I agree that would have been a better question than most of the ones she actually got asked about gun litigation. I would’ve also liked to have heard her answer on the text, history, and tradition standard.
This is merely my opinion as an observer, first as a disclaimer:
I don’t think even the concept of “judicial standards” is being upheld. It seems the system has devolved into judges’ personal fantasy wishlists; not professional templates and metrics.
For firearms (implicating Heller): the en-vogue two-step, multi-factor, interest-balancing approach called “heightened scrutiny” invented in the Ninth Circuit is not a formal legal construct. And more resembles rational basis in actual use. Or, judges claim everything and any restriction *doesn’t* implicate 2A — and ignore it outright.
(Heller being “text, history, and tradition” or “common use” or hopefully in Bruen or Young “strict scrutiny”.)
Case in point: I have never seen a case from a contrarian circuit, in obvious and clear violation of Heller, be reversed using “text history and tradition” in the published findings. (Exception for Benitez *upholding* the baton ban in California. But he isn’t a contrarian — and followed said “professional templates and metrics”.)
Sorry for being long winded.
I think that’s a coherent critique of how some lower courts have treated Second Amendment cases in the wake of Heller.