Justices, With Kavanaugh Seated, End 9-Year Avoidance of Gun Regulations
ALM Media
Justice Anthony M. Kennedy administers the Judicial Oath to Judge Brett M. Kavanaugh. Credit: Fred Schilling, Collection of the Supreme Court of the United States
After nearly a decade and numerous denials, the U.S. Supreme Court will jump back into Second Amendment gun regulations. Is Justice Brett Kavanaugh the reason?
“It’s hard not to think that Kavanaugh’s replacement of Justice Anthony Kennedy was key here,” said Second Amendment scholar Adam Winkler of UCLA Law School. “The court has turned aside one gun case after another for nearly a decade, and almost immediately after Kavanaugh is on the court they take a Second Amendment case. It’s hard not to draw that inference.”
The case in which the justices granted review Tuesday could result in a limited, for-this-case-only decision, according to Winkler. Or the outcome could be a major ruling on two fundamental questions unanswered by the justices’ landmark Second Amendment decision in 2008: What is the constitutional test for gun regulations, and when can firearms be carried in public?
Tuesday’s grant—with no signed dissents—came in a challenge to New York City’s “premises” license law, which limits the transport of handguns to a home or seven shooting ranges within the city limits. Besides relying on the Second Amendment, the challengers, led by Kirkland & Ellis partner Paul Clement, also claim the law violates the right to travel and the commerce clause.
"This is such an easy case," Second Amendment litigator Stephen Halbrook said. "This law doesn't exist anywhere else in the country, a total outlier." The challenge could have won review even if it had come to the court before Kavanaugh came on the court, he said.
Halbrook agreed with Winkler that the justices could use the case to answer what constitutional test must be used for gun regulations. "Why else would they take a case like this if not to give guidance to lower courts which have been in rebellion against Heller the landmark Second Amendment ruling since 2008?"
The rash of challenges to local and state gun regulations turned away by the high court has included bans and restrictions on concealed carry and open carrying of firearms in public.
The high court’s most recent major Second Amendment rulings were in 2008—District of Columbia v. Heller, finding an individual right to keep a weapon in the home for self-defense—and 2010's McDonald v. City of Chicago, which applied the Second Amendment to the states. In both cases, the court divided 5-4 along conservative-liberal ideological lines, with Kennedy in the majority.
Justice Clarence Thomas (2015). Credit: Diego M. Radzinschi/ ALM
The inference that Kavanaugh made the difference in Tuesday’s grant was bolstered by the fact that only three justices since 2008 have indicated a desire to hear Second Amendment challenges: Justices Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch. Thomas, in particular, has sharply criticized his colleagues for making the Second Amendment a “second-class right” and a “constitutional orphan.”
“If a lower court treated another right so cavalierly, I have little doubt that this court would intervene,” Thomas wrote in a dissent last year. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court.”
Four votes are required to hear a petition and Kavanaugh, confirmed to the bench in October, may well have been the fourth. The inference also would be consistent with Kavanaugh’s strong pro-Second Amendment views when he sat on the U.S. Court of Appeals for the D.C. Circuit.
In 2016, in what is known as Heller II, Kavanaugh dissented from the 2-1 panel decision upholding the District of Columbia’s ban on semi-automatic rifles and requirements for gun registration.
“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi- automatic rifles,” Kavanaugh wrote. “Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are.”
Winkler, author of "Gunfight: The Battle Over the Right to Bear Arms in America," suggested that the new case could result in no major Second Amendment statement because the city’s law is unusual in its restrictions on the transportation of firearms.
But it also could end with major pronouncements on two key, unresolved Second Amendment questions, he said.
“The biggest unanswered question is whether you have the right to have a gun in public,” he said. “People think about that issue in terms of concealed carry permits. This case presents the issue in an unusual and unexpected way—whether you have the right to take a gun out of home and move it in public to transport it. It’s possible to use the case to articulate broad protections for a right to transport firearms in public.”
The other major unanswered question is what test is to be used to decide whether gun regulations run afoul of the Second Amendment. The Supreme Court in 2008 only said that neither rational basis (the lowest form of scrutiny) nor a balancing of interests was appropriate. Since then, most courts have applied a form of heightened scrutiny.
“We don’t know how that’s going to go,” Winkler said. “This case isn’t the best vehicle, but they could well do it.”
