September 24, 2020
By David Codrea
At this writing, President Trump is preparing to announce a Supreme Court nomination to replace Ruth Bader Ginsburg. The pundits and talking heads are speculating that his choice will be a woman, and that likely top candidates will be U.S. Circuit judges Amy Coney Barrett and Barbara Lagoa.
Of the two, Barrett has been pilloried by the unctuously “progressive” Slate as having a “fundamentally cruel vision of the law,” warning readers “there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country.”
Lagoa, on the other hand, shows herself to be an unacceptable choice, telling Dianne Feinstein in a Senate Judiciary hearing for her nomination to the Eleventh Circuit that she couldn’t say what she thought about former SCOTUS Justice John Paul Steven’s opinions (he’s the one who later wrote an op ed calling for repeal of the Second Amendment), and showing herself to have no problem with any number of infringements as long as she had precedent to fall back on, as opposed to Founding intent.
This is important, because one of the reasons gun owners voted for Donald Trump in 2016 – and will vote for him again in November – is because he has promised us he will appoint judges who understand our concerns.
“Radical justices will erase the Second Amendment, silence political speech, and require taxpayers to fund extreme late-term abortion,” Trump declared in a Sept. 9 statement on his potential judicial appointment picks for the Supreme Court. “Over the next four years, America’s President will choose hundreds of federal judges, and, in all likelihood, one, two, three, and even four Supreme Court justices. The outcome of these decisions will determine whether we hold fast to our nation’s founding principles or whether they are lost forever.
“That is why today I am announcing 20 additions to my original list of candidates for the United States Supreme Court,” Trump said. It’s “his fourth such list since 2016,” SCOTUSblog noted.
While most appear enigmatic for nailing down Second Amendment views, one of those names is noteworthy, at least as far as gun owner interests are concerned, and not in a good way.
“Noel Francisco is the former Solicitor General of the United States,” the president’s addition list reveals. It goes on to tell us who he’s worked for and some of his qualifications but doesn’t really say anything about why he is considered a good philosophical match worthy of a presidential nod.
The Associated Press finds a few reasons, noting Francisco “defended Trump’s travel ban, his unsuccessful push to add a citizenship question to the U.S. census and the decision to wind down the Deferred Action for Childhood Arrivals program that protects hundreds of thousands of young people from deportation. He also argued that a landmark civil rights law didn’t protect gay, lesbian and transgender people from employment discrimination, a position the court ruled against 6-3 earlier this year.”
Fine, but what about his history on guns?
An archived thread at AR15.com on Kettler v. U.S. calls our attention to a case on “Whether the Second Amendment guarantees a right to possess firearm silencers” and whether the NFA tax is constitutional.
“[T]his brief reads like something the Obama DoJ would have written,” poster “Boatswain” notes. “And yet it was written by Noel Francisco and Brian Benczkowski, both 'conservatives' appointed by Trump.”
“The Second Amendment, by its terms, protects the right to keep and bear ‘Arms,’” the Brief for the United States in Opposition, submitted by Francisco in his then-role of Solicitor General, opined. In District of Columbia v. Heller … this Court interpreted the word ‘Arms’ to mean ‘weapons of offence, or armour of defence’ …As the court of appeals correctly determined, a silencer is neither a weapon nor an ‘armour of defence,’ and restrictions on silencers ‘don’t materially burden’ one’s ability to use a gun for ‘self-defense.’”
“Moreover, this Court explained in Heller that the Second Amendment allows the prohibition of ‘dangerous and unusual weapons’ … and many courts have upheld restrictions on silencers on the alternative ground that silencers are dangerous and unusual,” Francisco’s brief continued. He went on to cite one case that declared “Silencers … are even more dangerous and unusual than machine guns … and are less common than either short-barreled shotguns or machine guns,” another that said “[S]ilencers/suppressors ‘are not in common use by law-abiding citizens for lawful purposes’,” and yet another “describing silencers as part of ‘the arsenal of … the ‘gangster’ and contrasting them with ‘weapons usually relied upon by good citizens for defense or pleasure.’”
As they are also used by the “standing army” of the military and police, that’s a pretty far cry from Continental Congress Delegate Tech Coxe’s “every other terrible implement of the soldier” advocacy. But that’s what happens when the core Militia purpose of the Second Amendment has been deliberately ignored and subverted, and the only recognized aspect of the right has been limited through legal precedents to “self-defense.”
It needs to be noted that Francisco is not the first Solicitor General for a supposedly “pro-gun president” who argued to uphold citizen disarmament. While Ted Olson paid lip service to individual rights, he argued against the high court hearing appeals in cases dealing with possession while under restraining order and unregistered machine gun cases, saying "that the individual right to bear arms protected by the Second Amendment is subject to 'limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms as historically understood in this country."
He also argued against restoring the rights of an American convicted on a gun charge “in Mexico for an act that is legal in the U.S., because he spent time in jail on a felony conviction.”
Everybody gets that the function of a lawyer is to argue on behalf of his client, and in these cases, the lawyer has been the Solicitor General and the client has been the United States government, which in itself is an unacceptable legal abomination. While it may not be realistic to expect a top government lawyer to commit career suicide by honoring his oath and saying “Take this case and shove it,” what’s not unrealistic is for the president to expect all recommendations presented to him to have been vetted against his stated agenda and campaign promises.
While it looks like Francisco isn’t on the short list this time around, his arguments in Kettler should have disqualified him for the long one. As should Lagoa’s unacceptable weasel-wording to mollify Feinstein.
The whole process is designed to encourage that, meaning the American people are continually finding out they’ve been sold a pig in a poke. While court nominees are generally given loads of deference in terms of answering specifics think of one job you’ve ever applied for where you’d have gotten it if you decided to play coy with the hiring managers. While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation — for legitimate reasons, including not having studied and evaluated all the particulars, evidence and precedents against the “supreme Law of the Land,” — there’s no reason why general principles of understanding should be off-limits. Such hearings are supposed to be, among other things, high-level employment interviews, not pre-coronation ceremonies.
Here are a few questions any qualified candidate shouldn't have any trouble answering:
What did the Founders mean by “A well regulated militia”? What did the Founder mean by “being necessary to the security of a free State and “the right of the people to keep and bear arms” and “shall not be infringed”? How can past Supreme Court opinion specifying protected arms as those being “in common use at the time” not apply to the types of firearms needed for militia service?
Hell, correctly answering these should be required to graduate high school.
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.