On Friday, the Washington Post published a purportedly straight news piece lamenting the potential nomination of Judge Thomas Hardiman to the Supreme Court on the grounds that he is a “Second Amendment extremist.”
What exactly did the Post and its handpicked experts find so “extreme” about the judge’s opinions? As the nation’s capital newspaper darkly intoned, Hardiman’s history of past judicial rulings shows that he “has argued that Americans have a constitutional right not only to keep guns at home — as the high court has ruled — but also to carry them in public.” The Post piece also warned that, according to “Constitutional law scholars and advocates on both sides of the gun debate,” the judge’s “nomination and confirmation would push the court to the right…making it more likely that justices would agree to hear cases challenging gun laws — and perhaps to strike them down.”
The Post went on by broadcasting a UCLA law professor’s evaluation of Hardiman as a “Second Amendment extremist” as a mere description of fact:
Adam Winkler, a law professor at the University of California at Los Angeles who has written extensively about gun laws, said that if Hardiman’s view were law, gun restrictions in states such as California, New York and New Jersey would be struck down, potentially leading to a vast expansion in legal gun ownership.
“He believes the government has very little leeway in regulating guns. He thinks the only types of gun-control laws that are constitutionally permissible are ones that existed at the founding,” said Winkler, author of “Gunfight: The Battle Over the Right to Bear Arms in America.” He described Hardiman as a “Second Amendment extremist.”
The piece goes on to detail how Hardiman has previously written in favor of concealed carry laws and advocated restoring gun rights to non-violent criminals, particularly those who have only been convicted on misdemeanor offenses.
Strangely, the Post piece at no point lets its readers know that practically every state in the U.S. allows American citizens to carry concealed weapons in public. Although some so-called “may issue” states like New York, California, and New Jersey are de facto “probably never” issue states that make it very difficult to obtain permits to carry guns in public, federal laws like the Law Enforcement Officers Safety Act of 2004 allow qualified ex-police (and since 2013, off-duty military personnel) to carry weapons in any state in the U.S. (plus the District of Columbia) without a permit. Thus, even in states where concealed carry permits are nigh impossible to obtain for ordinary citizens, many ex-cops or other law enforcement veterans can carry guns in public. Millions of Americans exercise their rights under the protection of these laws every day without incident, and tens of millions more benefit from being in areas that are not soft-targets for terrorism, crazed mass shooters, or common criminals.
So, while it may shock those who are completely ensconced in the liberal bubbles of our country’s major urban centers to learn that a judge supports Americans’ right to carry guns in public, it should not surprise anyone who is aware of the massive shift in America towards accepting the concealed bearing of arms over the past three decades, a political trend that has coincided with massive drops in violent crime across the country (see FBI crime statistics from 2012 and 2016 for more detail).
Regardless of the Post’s slanted perspective on gun rights, the couple of examples that they provide of Hardiman’s past opinions show that he is indeed a strong supporter of the Second Amendment and would likely do a good job of protecting the right to keep and bear arms if he makes it to the highest court in the country:
In 2013, Hardiman was part of a three-judge appeals panel deciding the constitutionality of a New Jersey law that required citizens seeking a handgun permit to demonstrate a “justifiable need” for such a weapon. The state defined “justifiable need” as an urgent need for self-protection because of “specific threats or recent attacks.”
Two judges voted to uphold the New Jersey law, finding it a constitutional way for the state to advance its goal of protecting public safety. Hardiman dissented, arguing that the law should be struck down.
In his dissent, Hardiman said that Americans do have a right to carry guns outside their homes, and that forcing citizens to prove they have a “justifiable need” to exercise that right amounts to an unconstitutional “rationing system.”
Gun ownership poses risks, and “States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk,” Hardiman wrote in his dissent in the case, known as Drake v. Filko. “But states may not seek to reduce the danger by curtailing the right itself.”