Judge Kavanaugh and the Second Amendment

Since Justice Anthony Kennedy announced his plans to retire, analysis of the potential effects of his retirement has mostly focused on areas of the law in which he provided the swing vote for a more liberal result – for example, abortion or gay rights. On those issues, Kennedy’s replacement with a more conservative justice could shift the law to the right. But Kennedy sided with his more conservative colleagues in finding a Second Amendment right to have a handgun in the home, and there is no reason to believe that Judge Brett Kavanaugh, if confirmed, is likely to disagree. A more significant question, though, is whether a Supreme Court that included Kavanaugh might take a more expansive view of the Second Amendment and strike down some existing gun laws. Kavanaugh’s track record suggests that he might be willing to do so for at least some gun laws, although he does not regard the Second Amendment as creating an absolute right to have or carry a gun. It’s not clear, though, what effect Kavanaugh’s views would have on the court: The answer may hinge on the votes of his colleagues, and in particular Chief Justice John Roberts and Justice Samuel Alito. The Second Amendment to the Constitution provides that “the right of the people to keep and bear Arms, shall not be infringed.” In 2008, in District of Columbia v. Heller , a divided Supreme Court struck down a D.C. law that generally banned the possession of handguns in the […]

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Judge Kavanaugh and the Second Amendment

Judge Kavanaugh and the Second Amendment

No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh. His 2011 dissenting opinion in the case known as Heller II was consistent with his long-standing adherence to text, history, tradition, and Supreme Court precedent. Background: In 2008, the U.S. Supreme Court affirmed that the Second Amendment is an individual right, and is not limited only to militiamen. The Court carefully examined the text of the Second Amendment and the history of the right from early England through Reconstruction. The Court held two D.C. ordinances to violate the Second Amendment: a handgun ban and a prohibition on using any firearm in the home for self-defense. The District also forbade all gun carrying without a permit, even carrying shotgun from one’s bedroom to the basement for cleaning. Carry permits were never issued. The Court ordered D.C. to issue Dick Heller a carry permit. Following the Supreme Court decision, the D.C. Council enacted very restrictive gun controls. A new lawsuit resulted, among whose plaintiffs were Mr. Heller. In the 2011 case known as Heller II , a 2-1 panel of the D.C. Circuit upheld some of the new D.C. ordinances and remanded others to the district court. Judge Kavanaugh wrote a dissenting opinion. Later, in 2015’s Heller III, another 2-1 D.C. Circuit panel (not including Judge Kavanaugh) upheld some more of the D.C. laws and held others unconstitutional. (Here’s my analysis of Heller III .) The 2011 Heller II majority opinion […]

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