Is SAFE Act still safe from appeals?
Kavanaugh in position to tilt court on gun laws
Having just barely survived Senate confirmation, Justice Brett Kavanaugh is now in position to tilt the Supreme Court to the right on a variety of issues — including a possible rollback of New York’s assault-weapons ban.
At a minimum, Kavanaugh appears to be a vote for the Supreme Court to consider cases involving the court’s landmark Heller decision, in which the justices said the Second Amendment includes the right to own a handgun inside the home for self-protection.
But the 2008 ruling, authored by conservative champion Justice Antonin Scalia who died suddenly in 2016, also said Second Amendment rights are “not unlimited.”
While guaranteeing rights to gun owners, its language gave
cover to states like New York — which in 2013 approved the SAFE Act as a response to the Sandy Hook Elementary School mass shooting in Newtown, Conn.
Practically ever since, the Supreme Court has declined to hear fresh appeals by gun-rights advocates. In 2016, the court refused to consider appeals of post-newtown laws from both New York and Connecticut.
But all that may change with the addition of Justice Kavanaugh.
“The new makeup of the U.S. Supreme Court bodes well for the preservation of our Second Amendment freedoms,” said Catherine Mortensen, spokesperson for the National Rifle Association, which backed Kavanaugh’s confirmation.
Gun-violence-prevention advocates who backed the 2013 law view Kavanaugh’s elevation to the court as a bad omen for public safety in New York and elsewhere.
“Although the U.S. Supreme Court’s new composition may not be an immediate threat to New York’s gun laws, Kavanaugh’s extreme views on gun policy are deeply concerning and could be dangerous going forward,” said Rebecca Fischer, executive director of New Yorkers Against Gun Violence.”
Kavanaugh’s position on guns and gun limitations harkens back to a dissent he authored in 2011 as a federal appeals court judge in Washington.
In that case, he disagreed with the majority’s ruling that the District of Columbia could ban assault weapons and still be in line with the Heller decision’s finding that the D.C. ban on all handgun possession violated the Second Amendment.
While recognizing limits on Second Amendment rights, Scalia wrote that courts should be guided by a distinction between firearms “in common use” and those that are “dangerous and unusual.”
Courts historically protected weapons in “common use,” but prohibit those determined to be “dangerous and unusual,” Scalia wrote.
In his 2011 dissent, Kavanaugh came down on the side of viewing semi-automatic rifles such as the AR-15 and AK-47 as being in “common use” indistinguishable from the semi-automatic handguns approved under Heller.
“Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller,” Kavanaugh wrote in his dissent.
During Senate hearings prior to the blow-up over charges of sexual assault that nearly derailed his confirmation, Kavanaugh said he was simply interpreting the Constitution and the Heller precedent as he saw it.
“There are millions and millions and millions (of semi-automatic rifles in the U.S.),” said Kavanaugh. “As a judge, my job was to follow the Second Amendment decision of the Supreme Court, whether I agreed with it or disagreed with it.”
But, he added, he too was concerned by the threat to schools. “Of course, the violence in schools is something that we all detest and want to do something about,” he said.
In the SAFE Act, New York with some exceptions banned assault weapons in addition to large-capacity magazines. It also required mentalhealth professionals to alert law enforcement to persons who pose a danger to themselves or others.
Nevertheless, the debate has continued over what weapons are in “common use” and which ones are “dangerous and unusual.”
Gun-rights group have argued the term “assault weapons” is a misnomer, pointing to the distinction between military versions capable of fully automatic machine-gun-like fire and civilian versions that are single shot per trigger pull.
The gun industry’s main trade group, the National Shooting Sports Foundation, has long used the term “modern sporting rifle” to describe the AR-15 or AK-47.
But gun-control advocates counter that firearms designed as weapons of war have no place in civilian hands.
“Assault weapons are the gun of choice in mass shootings and are all too often used in multi-victim attacks against law en forcement,” said Kristen Rand, legislative director of the Violence Policy Center. “The possibility that the court could repeal state assault weapons bans and thwart a federal ban should terrify both police and the general public.”
Two conservative justices now on the court, Clarence Thomas and Neil Gorsuch, have expressed willingness to consider gun cases anew, with Thomas last year complaining of a “distressing trend” in the court that views the Second Amendment as a “disfavored right.”
Kavanaugh could well provide the third vote to bring a new case before the court such as one percolating through the federal appeals court in Boston, challenging a strict gun-control law in Massachusetts that parallels the one in New York.
But it takes four justices to decide whether the court hears a case or not. It remains to be seen if either of the court’s two remaining conservative justices, Chief Justice John Roberts and Associate Justice Samuel Alito, would provide that vote.