Sun Sentinel Palm Beach Edition
Gun laws may be reviewed
As justice, Brett Kavanaugh may help reverse state bans on assault rifles.
WASHINGTON — With the addition of Judge Brett Kavanaugh, the Supreme Court could have a conservative majority to strike down bans on semi-automatic weapons in California and other liberal states and to decree that law-abiding Americans have a right to carry a gun in public.
Although the fight over Kavanaugh’s nomination has mostly focused on abortion and health care, President Trump’s second nominee to the court could have a rapid impact on the national debate over gun control — a topic the high court repeatedly has avoided wading into in recent years.
The issue highlights a central difference between an earlier generation of legal conservatives, including many Reagan-era appointees, who emphasize judicial restraint, and today’s more activist conservatives who say they are enforcing the original meaning of the Constitution and are willing to use it to block liberal legislation from the states.
Kavanaugh’s record puts him in the activist group. In one notable dissent, for example, he argued the Constitution prohibits a state from banning socalled assault weapons.
A decade ago, the court, in a 5-4 opinion written by the late Justice Antonin Scalia, ruled that the Second Amendment protected the right of individuals to have a gun for self-defense. The decision struck down a District of Columbia law that prohibited residents from keeping a handgun at home. Two years later, the court in an opinion by Justice Samuel Alito struck down a similarly strict ban from Chicago.
Since then, however, the justices have refused to hear further cases on gun rights. It takes four votes to hear an appeal and five to issue a ruling. The court’s reticence on the issue indicated that Justice Anthony Kennedy, the usual swing vote, and perhaps Chief Justice John Roberts, were not ready to go further and to strike down more regulations on firearms.
The court’s silence has not been for lack of opportunities. Gun-rights advocates have tried several times to overturn state restrictions on the sale of rapid-fire rifles and on carrying concealed guns. They argue that those types of gun control measures violate the Second Amendment.
They have repeatedly lost in the lower courts, and so far, the high court has refused to hear their appeals — despite strong dissents from Justices Clarence Thomas and Scalia and by Justice Neil Gorsuch after he replaced Scalia on the court.
In the last three years, the justices let stand rulings that upheld bans on rapidfire guns in Connecticut, New York and Maryland as well as the Chicago suburb of Highland Park. Last year, they disappointed gunrights lawyers in California when they turned away a challenge to the state law that sharply limits who may carry a gun in public.
If Kavanaugh joins the court this fall, replacing Kennedy, he will add a vote on the conservative side.
The Second Amendment, adopted in 1791, says: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Through most of its history, until Scalia’s decision in 2008, the Supreme Court had little to say about it, except to suggest the amendment dealt mostly with militias and weapons that could be useful in military service.
Kavanaugh’s views on the issue have attracted notice from both sides of the gun control debate.
Shortly after Trump announced the nomination, the National Rifle Association called Kavanaugh “an outstanding choice” and said the Senate should swiftly confirm him.
Former Rep. Gabrielle Giffords, who survived a mass shooting in 2011 when six others died, said in a statement that Kavanaugh’s “dangerous views on the Second Amendment are far outside the mainstream of even conservative thought and stand in direct opposition to the values and priorities of the vast majority of Americans.”