Second Amendment

'The Second Amendment Is Not Unlimited,' Brett Kavanaugh Stresses in SCOTUS Gun Case

“Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations,” Kavanaugh writes, invoking Antonin Scalia


"Like most rights, the right secured by the Second Amendment is not unlimited," Justice Antonin Scalia wrote in District of Columbia v. Heller, his 2008 opinion recognizing an individual right to keep a handgun at home for self-defense purposes. "Nothing in our opinion," Scalia wrote, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Justice Brett Kavanaugh re-upped that language from Scalia today while signing on to Justice Clarence Thomas' majority opinion in New York State Rifle & Pistol Association v. Bruen, in which Thomas held that "the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home."

Kavanaugh agreed with Thomas about that. But Kavanaugh also wrote separately, joined by Chief Justice John Roberts, "to underscore two important points about the limits of the Court's decision."

First, Kavanaugh stressed, the constitutional problem with New York's licensing scheme for carrying handguns in public was that "it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense." By contrast, "43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements." Today's decision by the Court, Kavanaugh emphasized, did not touch any of that in any of those 43 states. "Shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice."

Kavanaugh's second point was drawn straight from the Heller language that I quoted above. "Properly interpreted," Kavanaugh wrote, invoking Scalia, "the Second Amendment allows a 'variety' of gun regulations."

Why would Kavanaugh write such a concurrence if he also fully joined Thomas' majority opinion? One possible reason is that Kavanaugh is looking ahead to future cases that will inevitably arise in the lower courts as legal challenges are levied against other gun control laws. Kavanaugh, joined by Roberts, may be signaling to the lower courts that, in his view, many such gun control regulations are presumptively constitutional, and lower court judges should therefore act accordingly. At the very least, many lawyers in future Second Amendment cases will be grappling with Kavanaugh's concurrence.