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WHAT TO KNOW TODAY
Clues to Amy Coney Barrett’s views on the Second Amendment suggest she may vote to strike down gun restrictions. With Senate Democrats unlikely to succeed in their efforts to prevent the confirmation of President Trump’s third nominee to the Supreme Court, here are a few things to know about how her appointment could tip the balance on gun cases:
- “His judicial philosophy is mine, too.” That’s what Barrett said at the White House on Saturday about the late Justice Antonin Scalia, for whom she clerked in 1998-1999. Scalia was a leading proponent of judicial textualism, and wrote the decision in D.C. vs. Heller that reversed precedent by holding that the Second Amendment includes an individual right to bear arms.
- Her only major Second Amendment opinion: In U.S. v. Kanter, the plaintiff challenged state and federal bans on his possession or purchase of guns because of a felony conviction for mail fraud. He lost, but Barrett argued in a lengthy dissent that categorical gun ownership bans based solely on felony status were unconstitutional and without historical precedent.
- The “text, history and tradition” test. Experts say Barrett’s dissent in Kanter suggests a more expansive view of the Second Amendment than even Scalia — she rejects the balancing test federal courts generally use to determine the constitutionality of gun regulations by weighing them against public safety concerns.
As legal expert Adam Winkler writes in a must-read thread: “Barrett’s history and tradition analysis could be used to call into question virtually the entirety of the gun safety movement’s agenda: bans on assault rifles, bans on high-capacity magazines, and even universal background checks.” Whether a majority would join her on those issues is unclear, but as we noted last week, another pro-gun vote on the court is expected to end the logjam that has resulted in the justices routinely declining to hear Second Amendment petitions at all.
NEW from THE TRACE: The growing movement to send counselors — not cops — to mental health crises. Mental health calls consume roughly one-fifth of local law enforcement departments’ time, according to a survey by an advocacy group that has calculated the acute risks of those dispatches: People with severe mental illness may be 16 times more likely to be killed during a police encounter. From Oregon to Connecticut, cities are experimenting with programs that they say provide a potentially life-saving alternative — and save millions of dollars in the process. Jennifer Mascia has the details and the data on the emerging models.
New York regulators delayed a long-awaited hearing in the NRA Carry Guard insurance case. In February, the New York Department of Financial Services brought civil charges against the National Rifle Association group for violating state insurance laws, exposing the gun group to potential fines and penalties that could run into the tens of millions of dollars. A hearing originally scheduled for today was postponed until January 12, a DFS spokesperson told The Trace in a statement that didn’t give a reason for the delay. At the heart of the state regulator’s investigation has been the NRA’s role in offering the defunct Carry Guard coverage, which offered gun owners potential reimbursement of up to $1 million for civil cases, and as much as $150,000 for criminal cases, after shooting another person and claiming self-defense. In 2018, the DFS settled with underwriters Lockton Companies and Chubb for $7 million and $1.3 million, respectively, for their involvement in the plans. — Kevin T. Dugan, Trace contributor
Far-right show of force draws smaller-than-expected crowd. Ahead of Saturday’s rally by the far-right Proud Boys, the governor of Oregon declared a state of emergency and the city of Portland warned that legal action could be taken to stop any unauthorized paramilitary activity. Many of the several hundred demonstrators who turned out were armed, and police cited cited two Proud Boys rally-goers on illegal weapons charges. But the event, as well as a larger counter-protest across town, concluded without the major outbreak of violence that observers had feared.
Remington to be broken up and sold. Seven buyers won bids after a bankruptcy auction stemming from the gunmaker’s decision to file for chapter 11 protection in July. Left unclear: What the dissolution means for Sandy Hook families in their lawsuit against the gun company. They fear a judge’s sign-off would “prevent Remington from ever answering for its role in the wrongful marketing” of the murder weapon used in the elementary school massacre, according to a recent court filing. A federal bankruptcy court hearing is scheduled for tomorrow.
19 percent of Black Chicagoans between the age of 18 and 25 say the police have pointed a gun at them, compared to 1 percent of white residents the same age and 2 percent of Chicago adults overall. [The Chicago Tribune]