On Tuesday, during the confirmation hearing for her nomination to the Supreme Court, Judge Amy Coney Barrett told the hearing that her family indeed owns a gun, and answered Senate Judiciary Committee Chairman Lindsay Graham’s question as to whether she could “fairly decide a case even though you own a gun,” by replying succinctly, “Yes.”
Graham asked, “When it comes to your personal views about this topic, do you own a gun?” Barrett answered, “We do own a gun.”
Later, Barrett answered questions from Graham regarding the process by which the Supreme Court works by asserting, “Judges can’t wake up one day and say I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion and walk in like a royal queen and impose their will on the world. You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process.”
The exchange regarding the process went like this:
Graham: There’s the Heller case. What’s that about?
Barrett: The Heller case is a case decided by the Supreme Court which held that the Second Amendment protects an individual right to bear arms.
Graham: Okay. Now, my friends on the Left, some of them have a problem with Heller; they may try to challenge the construct of Heller. If a state or local government passed a law in defiance of Heller, what would happen?
Barrett: In defiance of Heller?
Graham: Or that was challenging the construct of Heller?
Barrett: A challenge the concept of Heller, if it was brought in a lower court, Heller binds. Lower courts always have to follow Supreme Court precedent.
Graham: If the Supreme Court want to revisit Heller, what would they do?
Barrett: If someone challenged Heller below because a state or local government passed a law contradicting Heller, the Supreme Court would have to take that case once it was appealed all the way up. So the Court would have to decide, “Yes, we want to overrule Heller and we have enough votes to grant cert and then do so.”
Graham: So that’s the way the process works?
Barrett: Yes. It would start because there was a law, then there was a lawsuit, then there was an appeal, then the Court granted cert, and then the Court decided the case.
Graham: Is that true no matter what the issue is, whether it’s gun, abortion, health care, campaign finance, does that process hold true for everything?
Barrett: Judges can’t wake up one day and say I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion and walk in like a royal queen and impose their will on the world. You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process.
Graham: So if a state said, I don’t think you should have over six bullets and somebody believed that violated the Second Amendment, there would be a lawsuit and the same process would work, right?
Barrett: The same process would work; in that case there would be — parties would have to sue the state arguing that that law was unconstitutional, it would wind its way up, and if it got to the Supreme Court, and if the Supreme Court decided to take it, a whole decision-making process begins; you’d hear arguments from litigants on both sides; they write briefs. You talk to clerks as a judge; you talk to your colleagues, and you write an opinion. Opinions circulate and you get feedback from your colleagues. So it’s an entire process; it’s not something that a judge or justice would wake up and say, “Ah. We’re hearing this case. I know what my vote’s gonna be.”