- - Monday, October 19, 2020

Sen. Sheldon Whitehouse, Rhode Island Democrat, said he will be watching closely if Judge Amy Coney Barrett is confirmed to the U.S. Supreme Court to see if she delivers judicial decisions that satisfy dark money donors to Republicans in the Senate.  

Sen. Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, said she will be watching closely to see if Judge Barrett was honest when she said in the hearings she did not “have an agenda” to overthrow Roe v. Wade.  

But others, such as Mark and Patricia McCloskey, will be watching for more personal reasons. The McCloskeys are the St. Louis couple who got arrested for pointing their gun at protesters who had broken into their gated community and threatened to destroy property there as they searched for the home of St. Louis Mayor Lyda Krewson.  

Earlier this month, prosecutors announced the McCloskeys had been indicted on charges of unlawful use of a weapon and tampering with evidence. This week, the McCloskeys entered not guilty pleas to all charges. 

At issue will be a question likely to confront courts continuously in coming years: What constitutes acceptable use of force for self-defense.  



Judge Barrett is both a purist and an originalist. She believes, as did her mentor, Antonin Scalia, that the U.S. Constitution says what it says and doesn’t say what it doesn’t say. She joined a 37-page dissent in the 7th Circuit that argued felony convictions were not by themselves sufficient to deny people of their Second Amendment rights.  

So, Judge Barrett’s arrival at the Supreme Court can’t come soon enough for the McCloskeys or anyone else who cares the Second Amendment.  

Like a lot of American institutions, the Second Amendment is under serious and sustained attack. The McCloskeys can’t stand in their yard with guns to protect their property without being charged with multiple felonies. Judges debate the tether of the Second Amendment, and many find little to nothing that qualifies as a legitimate expression of the right to self-defense.  

Others contend we need not let civilians own firearms … that they can call the police if something bad happens. Modern police forces, especially in cities of any size, are sufficiently equipped and staffed to take over the task of self-defense from citizens, the argument goes. 

But, as we have seen since the death of George Floyd in Minneapolis in June, police forces often can’t or won’t respond to citizens’ calls. The mayor of Seattle ordered her police force to surrender a four-block area of town, in which police responded to no calls as businesses were looted, burned or harassed for protection payments and relented only when murders and rapes within the area began to pile up.  

The police chief finally gave up and quit when the city council voted to stop use of tear gas and other non-lethal crowd control techniques, reduce funding by half and the number officers by a third. 

The Second Amendment’s lifeline now is that people have realized in a way that hasn’t been obvious for decades that police might not be able to protect them. And finally, thanks to the appointment of Judge Barrett — and before her Justices Brett Kavanaugh and Neil Gorsuch — and the work of some tenacious scholars, the case for the Second Amendment and the case against weakening it in any way has gained intellectual heft. 

David Bernstein, a scholar at the Antonin Scalia Law School at George Mason University in Virginia, has taken on the current situation directly with a paper titled “The Right to Armed Self Defense In The Light of Law Enforcement Abdication.” The GMU law school has been a titan in defending conservative values in the nation’s capital, and Mr. Bernstein follows in that tradition. 

He argues in the paper that District of Columbia v. Heller, the Supreme Court decision that held for the first time that the Second Amendment protects an individual right to a handgun, was the beginning, rather than the end, of the fight for true Second Amendment rights.

The law it invalidated “amounted to an ‘absolute prohibition of handguns held … for self-defense in the home,’” Mr. Bernstein wrote, and there are still those who think the only lawful use of a handgun is to carry from one room to another in one’s house. Heller prevailed by just a 5-4 margin, meaning just one seat on the court falling into the wrong hands could mean it would be overturned.  

The courts will be deciding a number of cases on what constitutes self-defense in coming months and years. We need to know we have justices who understand the Constitution to mean what it means and scholars such as Mr. Bernstein to keep score and keep us honest on the implications of the courts’ decisions.

• Brian McNicoll, a freelance writer based in Alexandria, Virginia, is a former senior writer for The Heritage Foundation and former director of communications for the House Committee on Oversight and Government Reform.

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