"Does Owning a Gun Make a Judge's Second Amendment Rulings Suspect?"

"Barrett says she owns a gun, but could fairly judge a case on gun rights" -- why the "but"?


Jacob Sullum (Reason) writes about this question, beginning with:

Senate Judiciary Committee Chairman Lindsey Graham (R–S.C.) was trying to help out Supreme Court nominee Amy Coney Barrett when he asked her whether she owns a gun during her confirmation hearing yesterday. But the premise of his question—that gun ownership might be viewed as disqualifying a judge from dealing fairly with cases involving the Second Amendment—could not be more absurd. Here is the relevant exchange:

Graham: When it comes to your personal views about this topic, do you own a gun?

Barrett: We do own a gun.

Graham: OK. All right. Do you think you could fairly decide a [Second Amendment] case even though you own a gun?

Barrett: Yes.

CNN highlighted that exchange in a headline and tweet, noting that "Barrett says she owns a gun, but could fairly judge a case on gun rights." The Independent also considered the point noteworthy: "Nominee owns a gun, but says she would rule 'fairly' on gun control cases." So did Fox News: "Barrett admits to owning a gun, says she can set aside beliefs to rule on 2nd Amendment fairly."

Sullum's analysis strikes me as quite right; a bit obvious, to be sure, but the sort of obvious that people (or at least headline writers) apparently need to be reminded about.

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  1. Nitpicking is in bad faith. Do you own clothing? Do you own a car? Do you own a phone? Could you decide a case involving those objects? Eff you, lawyer traitors.

    All nitpicking inquisitors should be impeached, and should lose their licenses.

    1. Do you own a mouth and talk?


      "Barrett admits to owning a gun, says she can set aside beliefs to rule on 1st Amendment fairly."

      Because the default position, all right-thinkers agree, is restrictions need "fairness".

      1. Owns a mouth. Dang, if only this board were up to 1980s standards.

        I wonder if they plow the data straight into advertising AI analysis, and their contract precludes changing data after the fact.

        1. Nitpicking is a form of bad faith. Lend me your laptop an hour, I can send you to prison for decades and fine you $millions. Lawfare needs to be criminalized.

    2. Bro.

      This was Graham's idea of a softball. "Go ahead and tell the country that you're not a cultist who's going to ban abortion, declare Trump president for life, and return us to the good old days of segregation--whoops, that's not how I meant it to sound."

  2. So obvious, in fact, that they will do their darnedest to ignore it, knowing their readers are smart enough to figure it out all on their own.


  3. Judge admits to having spoken, but could fairly judge a 1st amendment case.

  4. Does this mean gay people should recuse themselves from judging cases that have to do with gay rights?

    1. No. A judge can decide a gay rights case fairly regardless of their sexual preference.

      1. s/preference/orientation/

        Get with the program!

        1. "preference/orientation"

          More PC BS.
          I prefer women; I am not oriented toward women.

        2. Wow. Webster's online dictionary appears to just have been modified to label the term "preference" offensive. 1984 much?

          1. An excellent opportunity for a Republican Senator to ask Barrett to explain how originalism works, and why it' a good interpretative system.

          2. Wow. Webster’s online dictionary appears to just have been modified to label the term “preference” offensive. 1984 much?

            It's sad people have to claim they were born that way, just to be free to have sex with whoever they want. Lool at the language distortions downstream. Presumably some buffoon likens preference to a choice. But it's not. It says nothing about how what you want comes about to being wanted.

            Who in their right mind gives government the power to regulate sexuality to begin with? We shouldn't even be here.

    2. Kagan's gay and she didn't recuse from any.

      1. We actually do not know for sure if Kagan is gay.

  5. How is this different than “Barrett says she does not own a gun, but could fairly judge a case on gun rights”?

    1. Graham's question was obviously designed as a spoof of all the D questions about whether she could be fair as a Catholic, a non enthusiast for abortion, a mother, a Republican, a Trump nominee, a person who can get her hair sorted without breaking COVID regulations, a witch, a Handmaid, a fascist, a gay hater, a baker of cakes, a non Ivy League lowlife, a whitie and other disreputable things.

      1. It was the "dripping sarcasm" for which Graham is known!

  6. I would draw the line at if the nominee belonged to an unorganized militia like the Wolverine Watchmen and Sons of Liberty. So she could rule in such a way that the 2A protects the unorganized militia all the way up to the Wolverine Watchmen taking over the government and then repealing the 2A so another unorganized militia couldn’t simply use 2A protections to take over the government from them.

    1. Would you draw the line if she did not belong to an organized militia?

      Would you draw the line if she had belonged to one, but was no longer a member?

      Why is it always so one-sided?

      1. I actually wouldn’t never vote to confirm her because she worked on behalf of Bush to steal the 2000 she and Kavanaugh are nitwits.

        1. I see you think that litigants don't deserve lawyers.

          1. She didn’t have to drop everything she was doing and use her lawyerly talents to help an unqualified imbecile steal an election. Hey, let’s vote for Don Junior because his dad was a one term president...and he loves Jesus!! What could go wrong?? Oops.

            1. I'm adding "our adversarial legal system" to my list of concepts that elude you.

              1. Except Bush’s brother and his minions controlled the state government at the time. But it worked out for you—we spent over $3 trillion killing Muslims in Iraq because Bush failed to protect America on 9/11.

                1. Those would be the same Muslim-killing Wars that Lieberman, Panetta, Kerry, Edwards, HRC, and Biden voted for.

                  1. The Democrats made the big flappy pussy Bush invade Iraq!! Waaaaah!!

                    1. They both have blood on their hands. The decent thing to do would be for all of them to retire from public life.

                    2. If you read Powell’s account of 2002 many were perplexed by Bush’s behavior and kept thinking he would change his mind. So Powell was going along with him because he believed if he told him he was nuts or quit that Bush would have no one around him trying to talk sense to him. Obviously Powell was wrong but in the moment it’s hard to fault him.

                2. Did you miss the later independent analysis where Gore’s preferred method for counting hanging chads actually led to a larger victory for Bush?

                  1. Gore wanted a statewide recount but there was no mechanism for a statewide recount, so with his limited time and resources he went county by county hoping to get more votes with the goal of a statewide recount. Gore’s problem was Bush’s minions controlled the state offices that oversaw elections so they were going to drag their feet hoping to run our the click as long as Bush had the lead. Long story short—a constitutional recount would have led to a Gore victory but Bush’s minions prevented a constitutional recount. Bush winning only led to an asinine war that cost $3 trillion and then the Great Recession as well as Trump winning the Republican nomination which led to over 200,000 deaths and trillions more flushed down a toilet...but at least gays didn’t get to get married until 2013 so it was all worth it. 😉

                    1. Gore's problem was that he got less votes in FL.

        2. I actually wouldn’t never vote to confirm her because she worked on behalf of Bush to steal the 2000 election…

          You really don't wanna know who Hillary defended this one time at band camp.

      2. Heh. ACB wasn't a member of the militia, but her husband was from age 17 to 45. So clearly she has to recuse on 2A cases, as would any citizen who was male or had ever been married to a male.

        I wonder what RBG thought about women (other than National Guard) being excluded from the militia?

        1. The Sons of Liberty was a sexist organization.

        2. She would have brought suit on behalf of a man who thought women should belong to the militia. In fact I think they made a movie about that.

  7. This just in.

    Clarence Thomas must recuse himself from affirmative action cases before the SCOTUS, because he's a minority.

    Liberals cheer.

    1. Although we don't know his votes for presidents, he probably ain't black, so no need to recuse.

  8. "When it comes to your personal views about this topic, have you had an abortion?"

  9. Can't blame Democrats for this one.

    1. Just most everything else.

  10. So do female justices who have a womb have to recuse themselves from abortion cases?

    1. Just the opposite, only those with a womb can rule on abortions, at least feminists have informed me, my lack of a womb disqualifies any opinion I have. Don't you remember the "richness of experience" granting a wise latina special SCOTUS powers.

      Good news then, would be only gun owners could rule on 2cnd A cases

      1. Your mistake is you are looking for consistent principles.

        There is only one consistent principle with these people. Encapsulated by a famous Latin phrase:

        Et vincere capitibus, Perdit caudae.

        Or in plain English:

        Heads I win, Tails you lose.

        1. I have no idea where you go that. Latin is a conjugated language, you can't just throw words together.

          What you wrote was
          And to win with heads. He loses of tail.
          Better version
          Si capit, vinco, et si cauda, perdis.
          If head, I win, and if tail, you lose.

        2. The oldest mention i can find is in the US Congressional Record from 1802, in English. So it's not a famous Latin phrase.

  11. Nominee also has a uterus.

    1. True. But I would trade her recusal for the recusals of Sotamayor and Kagan.

  12. "Barrett won't say if Medicare is constitutional" - yahoo news

    1. "Barrett refuses to say whether a president can deny right to vote based on race" - msnbc

    2. "Democrat Senator asks Amy Coney Barrett if she has ever sexually assaulted someone" - Daily Mail

    3. "Did a Fly Land on Amy Coney Barrett?" - Snopes

    4. "Amy Coney Barrett refuses to say if President Donald Trump has the absolute right to pardon himself" - CNBC


        1. The majority of the news is vacuous truth.

      1. "I mean, I separated some of my children from their parents! Hey-o! I'm here all week, folks, so trip your waitresses and next time try the veal."

  13. Here is liberal logic:

    Strong dislike for Amy based upon politics --------> Any reason to frame as her not being qualified ----------> Amy should not be confirmed

    You can really put anything in the middle and to a liberal it will justify both beliefs. Doesn't matter what. Just put anything in there and the chain of logic stands.

    1. Your post looks more like a rationalization to a priori discard any objections.

      Also, of course, as captcrisis said: "Can’t blame Democrats for this one."

      1. "Your post looks more like a rationalization to a priori discard any objections."

        What are the objections? She owns a gun, says, "sexual preference", has black children... Doesn't seem like a rationalization to me.

        1. Note how Jimmy's post is invariant to the objection. That's some impressive close-mindedness.

          I have objections based on her views as outside the mainstream.

          1. You basically affirmed my statement above. Thanks.

            Sarcastro - purveyor of "mainstream"...not thing you know is that he will claim to be the ultimate example of "reasonable person"....

          2. "I have objections based on her views as outside the mainstream."

            Whatever views you think she has that are outside the mainstream, are they wrong?

            1. More importantly, why are they wrong.

          3. "Note how Jimmy’s post is invariant to the objection."

            And yet, it works for all the objections presented so far.

          4. Everyone remotely interesting has at least one view outside the mainstream. The only question that matters should be 'is she a competent jurist?'

    2. Liberal logic?

      (1) The question was presented by a Republican.

      (2) The first example of this type of challenge that comes to mind involves the clingers who argued for recusal of a gay judge in a litigation involving gay-bashing.

      Other than that, though, great comment!

      1. Since it's not clear to you (nothing is apparently) the point is many leftists are taking that exchange out of context and promoting the idea that she must recuse herself. Which is entirely the point to blunt any conservative majority. Unfortunately for you and the losing left there will be a solid conservative majority for a generation on the court. In Trump's 2nd term be prepared to see two more justices added. And there will be no recusals.

        1. How strong a red wave are you predicting? Republican Senate? Republican House? Just how delusional are the bigoted, backwater, half-educated clingers these days?

          Open wider, clingers.

          Or not.

          Either way, you will comply with the preferences of your betters.

      2. When is the last time there was an actual, not faked, "gay bashing"? 1982?

        1. Iran has given gay people "helicopter rides" within the last month. I think that qualifies. Funny how the left never notices things like that.

  14. I'm not impressed w/ Sullum's analogies, which in each case place the individual of interest in the overwhelming majority, the result being that a rational estimate of that individual's likely views on the topic in question are not much affected by the revelation that she owns, did, or values the item, activity, or concept in question.

    But these don't seem a good match for gun ownership in the U.S., because a) gun owners are in the minority, and b) I hear tell that gun owners can be pretty enthusiastic about their gun rights.

    To the extent that owning a gun *is* predictive of gun policy views (a factual question on which I'm sure people on this blog can comment more knowledgeably than me), *and* that, Barrett's protestations notwithstanding, her personal gun policy views will affect her legal decisions in this area (or even just be *correlated* with those decisions, regardless of the causal relationships), the premise of Graham's question doesn't seem at all absurd. It seems pragmatic and sensible.

    1. Maybe women and minorities should have to recuse themselves over affirmative action cases since those are preferences given to them which makes their decisionmaking biased at best.

      1. The fact that a jurist’s having certain immutable characteristics doesn’t necessitate recusal, does not imply the absurdity of all concerns about the potential biases of jurists based on correlations with relevant life choices that they have made.

    2. It would seem obvious that people who don’t own guns will be less likely to favor guns than an average polling that includes both people who have guns and people who don’t.

    3. 3 in 10 US adults *personally* own a gun (so not counting spouses or other adults in the household who have access to the gun but don't personally own it). That's a minority, but it's a pretty big one, and it's not clear it would be a minority if you asked about personal access in the home.

      Meanwhile, that sizeable number of people are making use of a fundamental constitutional right. Whether they're in the minority or majority shouldn't make a bit of difference.

      And your causality is wrong. Her family's gun ownership will not *affect* her legal decisions. Her understanding of her rights and responsibilities both led to her family's ownership of a gun, and will affect her legal decisions. As they should. Just like everyone's understanding of the first amendment (among other things) affects things they are willing to say in public.

    4. Only a minority of US citizens have had an abortion and those who have had an abortion can be pretty enthusiastic about their reproductive rights, too. By your logic, having had an abortion should disqualify you from participation in any case touching on an abortion.

      Only a minority of US citizens are in the journalism profession and journalists are pretty enthusiastic about their first amendment rights. By your logic, no one who was ever a journalist can be a judge either.

      Only a minority of US citizens ever serve in the military. They also tend to be pretty enthusiastic about their service. By your logic, they can never serve as a judge, either.

      Non-gun owners could be a majority (data are unclear) and many non-gun owners are very vocal about their opinions. So they can't serve as judges, either.

      Taken to it's logical conclusion, judges must be ignorant of everything. If you want a blank slate, why don't we just start hiring 2 year olds?

      1. Thanks. These analogies (esp. the first) are better than Sullum's, and to me more persuasive. I now think it makes sense as a practical matter to say that a jurist's impartiality in 2A cases can't reasonably be questioned solely on the basis that the jurist is a vanilla gun owner. (Though unlike Eugene, I wouldn't say that there's nothing more absurd than disagreeing with this).

        Aside: This discussion has helped me realize that I don't know how to operationalize the legal definition of "impartiality," because when I make the hypothetical less vanilla (e.g. the jurist has an extensive collection of a certain firearm category whose very legality is at issue; or alternatively, the jurist has no record in 2A cases, but a long record of putting great weight on "slippery slope" arguments in many kinds of cases, and is a longtime NRA member), I have a hard time deciding where to draw the line.

        1. It sounds like you are close to realizing why judges don't use that definition of "impartiality" at all. Impartiality is not measured by experiences or prior knowledge. Impartiality is measured by your ability to set aside those experiences and base your decisions on the law as it is applied to the facts and experiences presented by the competing advocates in the case at hand.

          That last is an important point. If your decision hinges on the truth of the statement that "the sky is green", you don't need to look out the window yourself - it's the job of the plaintiff, prosecutor and/or defendant to prove or rebut that statement.

          1. I didn't mean to advance a specific definition of impartiality per se. But in any case, applying your definition, I do think that there are situations in which someone's impartiality might reasonably be questioned (which of course is one of the conditions of recusal) based on their experiences, knowledge and other circumstantial evidence.

            In a proceeding involving accusations of sexual assault of a minor, for example, one might reasonably question the impartiality of a potential jurist who collects portraits of young female nudes, whose favorite book is Lolita, who worships Jeffrey Epstein to this day, and who is otherwise unremarkable.

            (All of which pertains only to my above "Aside...", and is assuredly well beyond anything which came up in the Barrett confirmation).

  15. ""Barrett says she owns a gun, but could fairly judge a case on gun rights" -- why the "but"?"

    Yeah, Senator Kennedy used the term much more appropriately.

  16. Diane Feinstein owns a gun.

    ? But

    1. She is also one of about 12 people with a permit to carry in San Francisco because the law is not meant to apply to elite liberals.

  17. Confirmation hearings are now basically a hazing ritual.

    1. If they were only that...
      Actually they are full-throated partisan stump speeches.

  18. Could a person who uses birth conteol fairly judge contraception cases?

    1. Guess that would knock out all men who used a condom in their lifetime...

  19. The reporter who asked the question certainly cast grave doubt on someone's objectivity -- his own.

    1. The question was asked by Senate Judiciary Committee Chairman Lindsey Graham (R–S.C.), not by a reporter.

      That said, Graham thought he was helping Barrett by asking the softball question. It's CNN and the other media companies that added the "but" to the headline.

      1. I mean, what was the conjunction in Graham's mind?

  20. California has a special class of concealed carry permit for judges.

    So it seems odd for democrats to argue you can’t trust a judge who has a gun.

  21. Better question than do the Barretts have a gun. How much ammo have they got? Thousands of rounds? Yeah, that might point toward recusal.

    1. I fail to see the relevance. Even if it were hypothetically true, it is perfectly legal to own such things, why should it be treated as so unusual as to demand recusal.

      Pretty much everyone owns something that some other person would find weird. As long as it's legal, so what?

      1. And having thousands of rounds isn't even that unusual if someone makes regular trips to the range.

  22. IMHO based on reading some Judge's decisions, that never having used or owned a gun should disqualify them from ruling on 2A cases. It is sometimes obvious that they have no idea what those particular tools involve. Many Politicians are even more lacking in understanding guns.

    1. I concur. Most of those opposing gun rights seem to have serious misunderstandings about the 2nd Amdt, the NFA, etc. No, AR-15s are not “assault rifles”, because if they were, they would mostly be illegal under the NFA as unregistered machine guns. But they aren’t “select fire” (I.e. machine guns) since they were intentionally designed to shoot one bullet per activation of the trigger. Moreover, you can’t buy guns over the Internet, bypassing a background check, because it is a federal crime to ship guns to anyone else, or even yourself, except of Federal Firearms Licensees. Yes - I can’t even ship my guns from my house in MT to my house in AZ. I have to ship to a FFL in AZ, and he has to do a background check before giving me my own guns. A lot of the people buying their first gun this year were very surprised that they not only had to undergo a background check, but also that it could take a couple days.

      The list goes on. My point is that the knowledge of our current gun laws, as well as the history of gun control in relation to the 2nd Amdt, is very one sided, with gun owners typically knowing far more on the subject than non gun owners. With gun grabbing legislation, you often have the ignorant leading the blind, typically with little understanding of what they are legislating.

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