Trump’s Judges Starting to Repair Damage Done to the Constitution by Liberals

Dec. 12, 2018
by Bob Adelmann

One of candidate Donald Trump’s most important campaign promises was that, if elected, he would install conservative judges who treat the Constitution with the respect that it deserves. He has been keeping his promise, having nominated 154 federal judges, 84 of whom have already been confirmed. This is more than any of his five most recent predecessors, including the unlamented Obama administration. President Obama managed to get 329 federal judges confirmed, but it took him eight years to do it.

Now the most recent judges are beginning to undo the damage done to the Constitution by the liberal judges. Take the case of the Association of New Jersey Rifle and Pistol Clubs, Inc., which sued New Jersey’s state attorney general over the state’s recent law limiting possession of magazines to those capable of holding 10 rounds or less.

The case was heard by a three-judge panel of the Third U.S. Circuit Court of Appeals, where New Jersey’s law was upheld in a split decision: 2-1. The majority opinion was written by one of Obama’s appointees, Patty Shwartz:

Today we address whether one of New Jersey’s responses to the rise in active and mass shooting incidents in the United States – a law that limits the amount of ammunition that may be held in a single firearm magazine to no more than ten rounds – violates the Second Amendment, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause. We conclude that it does not.

Dissenting from the opinion was one of Trump’s newly-minted appointees, Stephanos Bibas. Bibas is a brilliant legal mind who is not only the 15th most cited law professor by the Supreme Court, the U.S. Court of Appeals, and numerous state high courts, but also the 5th most-cited professor of criminal law and procedure by professors teaching in law schools around the country.

Bibas assumed office on November 20, 2017 and took advantage of his appointment to the three-judge panel to excoriate Shwartz’s opinion and lay the groundwork for an appeal to the Supreme Court. Bibas built his case around the backhanded treatment the Second Amendment received by the majority in the case. The majority was in sync with anti-gun Everytown for Gun Safety, which brought in its attorneys to defend New Jersey’s AG in the case.

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Bibas’s dissent runs 19 pages (see Sources below, starting at Page 44) and makes interesting reading for those wanting to know how the anti-gun, anti-Second Amendment liberal majority reasons, and how that thinking relegates that amendment to second-class status. Here, however, Bibas’s carefully-selected comments will suffice to make the point. Bibas opened his dissent declaring that “the Second Amendment is an equal part of the Bill of Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our [your] own sense of wise policy.”

He not only provided a defense of the Second Amendment that obliterated Schwartz’s opinion, but prepared the case for appeal to the Supreme Court. In essence, Bibas did the Supreme Court’s homework on the case should the high court decide to review it on appeal. Here are just a few of the salient points Bibas made in his exterpation of the majority opinion in the New Jersey case:

The Second Amendment provides a right to “keep and bear Arms.” U.S. Const. amend. II. It protects possessing arms, not just firing them. So the majority misses a key part of the Second Amendment. The analysis cannot turn on how many bullets are fired….

New Jersey has not met its burden to overcome intermediate scrutiny [the state must prove the ban serves an “important” public interest], let alone strict scrutiny [the state must prove the ban serves a “compelling” public interest]. True, the government has a compelling interest in reducing the harm from mass shootings. No one disputes that. But New Jersey has failed to show how the ban advances its interest….

The majority’s concerns are understandable. Guns kill people. States should be able to experiment with reasonable gun laws to promote public safety. And they need not wait for mass shootings before acting. The government’s and the majority’s position may thus be wise policy. But that is not for us to decide. The Second Amendment is an equal part of the Bill of Rights. And the Supreme Court has repeatedly told us not to treat it differently.

In this specific case, Bibas was in the minority. But he has done his homework in the event the Supreme Court takes the case on appeal. He was one of the judges on the Federalist Society’s approved list of constitutionalists for the president to consider who are now being tasked with the job not only of correcting the majority when they go astray, but restoring the Constitution (and the Second Amendment) to its rightful place in American jurisprudence.

The damage inflicted to that precious document by liberal judges appointed by the likes of Clinton, Bush, and Obama is substantial, but with judges like Bibas now at work repairing the damage, there is hope of its restoration. If the high court reviews this case, Bibas’s brilliant and insightful defense will no doubt aid it in overturning the Third Circuit’s weak and intellectually deficient decision.


Sources: President Trump’s conservative court shift may slow down as liberal judges avoid retirement Third Circuit: Second Amendment is a Second Rate Right


Background on Judge Bibas

President Obama’s judicial appointment controversies

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