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Kennedy's Departure Probably Will Give Us a Court More Inclined to Defend Gun Rights

The retiring justice seems to have been a crucial obstacle to hearing Second Amendment cases.

C-SPANC-SPANAlthough Anthony Kennedy joined all three decisions in which the Supreme Court has upheld the constitutional right to keep and bear arms, his retirement probably means the Court will be less reluctant to define the contours of that right. In the decade since the Court first ruled that a law was inconsistent with the Second Amendment, it has passed up almost every opportunity to resolve lingering questions about which forms of gun control are constitutional. It seems clear that Kennedy bears much of the responsibility for that reticence.

It takes four votes to grant Supreme Court review. Two justices, Clarence Thomas and Neil Gorsuch, are on record as criticizing the Court's neglect of the Second Amendment. On three occasions, Thomas has written dissents arguing that the Court should have agreed to hear a challenge to a gun control law. Last year, in a case involving California's prohibitive restrictions on carrying guns in public, Gorsuch added his name to one those dissents.

While Samuel Alito did not join any of those dissents, he seems to favor a more aggressive defense of the right to arms recognized in District of Columbia v. Heller, the landmark 2008 decision that overturned a handgun ban in the nation's capital. Alito wrote the majority opinion in the 2010 case McDonald v. Chicago, which overturned that city's handgun ban and confirmed that "the Second Amendment right is fully applicable to the States." Chicago "ask[s] us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Claus," Alito observed in that case. Thomas argues that his colleagues have in effect been doing what Chicago wanted them to do: treating the right to armed self-defense as a second-class right, "this Court's constitutional orphan." Alito's concurring opinion in Caetano v. Massachusetts, a 2016 case involving a state ban on stun guns, suggests he is sympathetic to that view.

The Supreme Judicial Court of Massachusetts had upheld the stun gun ban based on the mistaken premise that weapons are covered by the Second Amendment only if they are appropriate for military use and were familiar to Americans in 1791. That assumption was plainly inconsistent with Heller, and the Supreme Court said so in a brief per curiam opinion that stopped short of overturning the law (a step the Massachusetts court ultimately took two years later). Alito's concurring opinion, which Thomas joined, faulted his colleagues for their "grudging" decision and eloquently sympathized with Jaime Caetano, the woman who challenged the stun gun ban after she was convicted of violating it.

Caetano bought a stun gun to defend herself against an abusive boyfriend and brandished it in a confrontation that might otherwise have ended in serious injury or death. "Under Massachusetts law," Alito observed, "Caetano's mere possession of the stun gun that may have saved her life made her a criminal....If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe."

It seems reasonable to assume that Alito is not one of the justices who is stopping the Court from hearing Second Amendment cases. That leaves Chief Justice John Roberts and Kennedy, both of whom joined the majority in Heller and McDonald but seem disinclined to address important issues those decisions left unresolved, including the right to bear arms outside the home, the constitutionality of bans on particular kinds of firearms (such as "assault weapons"), and the appropriate level of scrutiny for gun control laws.

Given Donald Trump's avowed intent to pick a replacement for Kennedy from a list of candidates favored by conservatives and the president's commitment to defending the Second Amendment (which he views as politically important even if he does not really care much about it), his nominee probably will be more inclined than Kennedy to take on these questions. Assuming Alito also wants to hear more Second Amendment cases, Kennedy's replacement would provide a crucial fourth vote to review decisions upholding gun control laws, forcing Roberts to take sides on controversies he seems keen to avoid.

[This post has been revised to correct the timing of the decision that overturned the Massachusetts ban on stun guns, which did not happen until last April.]

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  • John||

    Thanks to Kennedy, the Court was effectively limited Heller and McDonald to their facts. A right to bear arms is pretty meaningless if the state is allowed to regulate it to such an extent that it is no longer possible or practical for most people to own a gun. And that is exactly what is happening in many places. And the cities and states who are doing this are getting away with it because friendly circuit courts are allowing them and the Supreme Court has thus far been loath to grant cert to these appeals. Hopefully, that comes to an end and the days of local officials depriving people of their 2nd Amendment rights by means of regulation comes to an end.

  • a tandem||

    Yeah, people blame Scalia but he did the best he could given Kennedy wanting to keep it narrow.

    I was living in DC in 2004 when I inherited by grandfathers revolver. I assumed their "strict gun laws" meant I needed to register it, have an extensive background check (I had serious clearance and was not worried about that), training, a safe to keep it in and a waiting period.

    Called a buddy at MPD and they said apologetically, "sorry no way". It was like sam I am and green eggs and ham: no way, not unloaded, not in a safe, not with training, not with a background check, not with a waiting period. Just: NO.

    I watched the Heller decision and noted that every single gun control organization including those who claimed to just want "reasonable comprises" supported DC in Heller -- meaning their real goal and despite their claims, and hidden position is total bans of even revolvers for the provably life long law abiding.

    A serious change is long overdue. The "may issue" position is particularly absurd.

  • loveconstitution1789||

    Amendment II: 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.

    The court just needs to do its job and strike down all gun control laws and issue a non-opinion reversal decision every time a lefty court does not follow precedent and allows an unconstitutional gun control law to remain.

  • ace_m82||

    They don't care what words mean. They care about their power.

    Oddly enough, the more power they allow the Feds, the more power they have to limit that power. Ergo, in order to have the most amount of power (an Iron Law for institutions), they have to only limit the Feds' powers a certain amount, and not completely.

  • $park¥ The Misanthrope||

    I think what you meant to say, Jake, is that the Supreme Court is going to make it mandatory that everyone own a gun.

  • John||

    I like the cut of your jib. Do you have a newsletter?

  • $park¥ The Misanthrope||

    I nailed up several copies at the abortion store.

  • John||

    As soon as the run of people stocking up on their abortions ends, I will definitely head down there and check them out.

  • $park¥ The Misanthrope||

    If you're lucky they'll have put up the gun counter and you can pick up your mandatory gun at the same time.

  • Just Say'n||

    I never understood the "stock up on your abortions now" talking point.

    So, you're saying that people should go engage in unprotected sex with the inherent purpose of the woman getting pregnant just so she can then go have an abortion? What?

  • $park¥ The Misanthrope||

    I never understood the "stock up on your abortions now" talking point.

    Are you going to run around being the joke police now?

  • John||

    Apparently Micheal Ian Black, whoever that is, Tweeted yesterday that people should stock up on their abortions now because Kennedy is retiring. It is not entirely clear he meant it as a joke. No one else got it either and that has become the joke.

  • Eddy||

    He probably meant book flights for Ireland.

  • CptNerd||

    I don't get it.

  • EscherEnigma||

    @Just Say'n
    Some people think they're funny.

  • a tandem||

    I never understood the "stock up on your abortions now" talking point.

    It is just desperate mongering from the left. the more desperate they are the funnier it gets for the rest of us!

  • Frank White||

    Well, the abortion store called, and they're running out of YOU!

  • $park¥ The Misanthrope||

    Oh yeah? Well I had sex with your wife!

  • Frank White||

    Who hasn't?

  • The Laissez-Ferret||

    You should have gone with jerk store...

  • General_Tso||

    His wife is in a coma (or at least she was when I fucked her)

  • Set Us Up The Chipper||

    That one time.

  • Citizen X||

    +1 Swiss Confederation

  • EscherEnigma||

    Sounds good to me. But if we mandate it, we should also subsidize it. Provide arms, ammunition and training to those who don't have it on their own. To ease the paperwork, should probably just go with a "UBI" model that everyone gets a standard rifle of some sort, and open-to-the-public gun ranges with hours for "free to all" training, with vouchers for some set amount of monthly ammunition.

    Alternatively, we could just go back to having "citizens armories". People dont' get to own the guns themselves, but everyone has access should they need it.

  • a tandem||

    I think the largest effect wont be any single law change but series of moderate changes that then serve to gut funding of the gun control lobby. The gun control lobby funding has developed into near half a billion per election cycle almost all raised as 50-1(c)3 charitable funding on adovacy that runs right up to but not over the line into electioneering or IRS defined lobbying. As the issue has become more partisan this means it gun control funding can be highly effective as partisan funding along with being charitable and tax deductible. it is a golden ticket and a very sophisticated poltical product.

    I think the gun control fronts are less worried about the laws on gun control they will lose at SCOTUS than the specter of heretofore yearly rising funding now falling as the issue become a loser, or for that matter less partisan.

    No different than court cases not just setting back pro-life in terms of the laws but also having hard line v "rino" divide effect and also greatly reducing funding for politically involved pro-life organizing
    .

  • Longtobefree||

    Well, Obama bought several federal agencies more guns and ammunition they can be used in a lifetime. Some of us think just to keep it out of citizens hands. So there are plenty of firearms and ammunition to go around.

    I would like to see a citation for "citizen's armories". While there were militia armories with additional arms for unarmed citizens, and so that the assembled militia might be more simply resupplied, I am unaware of any point around those armories that infringed on the citizen right to keep and bear arms.

  • Just Say'n||

    Justice AR-15

    Do it!

  • Leo Kovalensky II||

    Justice Allen Robinson XV

    Just put a mask and the Stephen Hawking voice thingy on an AR and prop it up on the bench.

  • perlchpr||

    A Guy Fawkes mask, of course.

  • Quo Usque Tandem||

    God help me I do love it so.

  • John||

    Justice Bump Stock.

  • General_Tso||

    So when Ruth 'Buzzi' Ginsberg fails to wake up after nodding off during next year's SOU address, will it be Justice Stoner or Justice Armalite?

  • Longtobefree||

    You guys need to think big. Justice Davy Crockett.

    For those who went to public schools where they no longer teach American History - - - -
    (The M-28 or M-29 Davy Crockett Weapon System was the tactical nuclear recoilless gun)

  • DajjaI||

    These judges are being excoriated for doing their job - protecting the American people. They are heroes and don't get the credit they deserve. My fear is that Trump will realize it and hold off the nomination and then nominate Schumer to SCOTUS after the blue wave.

  • Just Say'n||

    Nominating Schumer to own the libs

  • DajjaI||

    You said it not me.

  • Quo Usque Tandem||

    Trump will never "own the libs." If he pulled their collective ass out of a burning building they would cheer and immediately roast him up for dinner.

    This is our moment, so please don't fuck with it, excessively.

  • Longtobefree||

    Except for the cheer part - - - -

  • Deconstructed Potato||

    I just realized that you are a parody account. gj.

  • Brett Bellmore||

    Seems like a fairly reasonable analysis; My only quibble would be that it might be Roberts who had gone soft on the 2nd amendment, in which case Kennedy leaving would have little effect. But on the whole I think it more likely that Kennedy was the squish.

    But we'll have to replace at least one more Justice before we get any really good rulings, because while Roberts might not be "the" squish, he certainly is "a" squish.

  • Deconstructed Potato||

    One of these days it'll be squishes all the way down.

  • Quo Usque Tandem||

    True; while it has been incredibly frustrating that Roberts and Kennedy have refused to grant cert to a number of 2A issues that beg resolution, it will be much better if we have sure 5 on that side, and not a 5 barring squish.

    Then maybe some of the assholes who have up to now made empty threats to leave the country will actually get the fuck out of town.

  • loveconstitution1789||

    RBG croaking will give conservatives a 5 + squish majority and the 3 remaining lefties wont stand a chance.

    People are ignoring justice Breyer too who is 80 this year.

    By the end of Trump second term as president, I think he will have replaced Scalia, Kennedy, Thomas, RBG, and Breyer.

    That would be some unforeseen good news for originalists if Trump nominates and gets confirmed that many originalist justices. We might see a completed turn around on government power abuses.

    The lefties would just accepted the criminal lifestyle after having completely lost their minds.

  • a tandem||

    That leaves Chief Justice John Roberts and Kennedy, both of whom joined the majority in Heller and McDonald but seem disinclined to address important issues those decisions left unresolved, including the right to bear arms outside the home, the constitutionality of bans on particular kinds of firearms (such as "assault weapons"), and the appropriate level of scrutiny for gun control laws.

    I think Kennedy signaled he would go against either ide, whichever tried to force may issue v shall issue (bear arms outside the home). If either he or Roberts were really going to support may issue we would have seen DC go to SCOTUS on Wrenn/Grace shall issue lower court ruling instead of folding. so I think it is a slam dunk that shall issue with background check and training will be made the law of the land at the first time up, even if it will take a couple of years to put one in the pipeline.
    (cont)

  • a tandem||

    On AR15 there are cases sooner than may/shall issue and I think five will support taking down the AR15 bans. The mini-14 ranch is legal and very common in Canada, not even on their restricted list. Yet one of those was used in a mass shooting of students (Norway). Arguing AR-15 enables school shootings is idiotic when the biggest student shooting the world was with a mini, and the biggest school shooting in the US was pistol at Va-Tech. They couldeasily do so under Heller given the common use wording with the AR is by far the most common rifle.

    You wont see total rollback, but you will see a strategic scale large long lasting rollback, setting back the gun control lobby at least 50 years.

    Another positive aspect is that unlike abortion fights or gay rights fights which will drive more and more money to pro-choice and gay rights movement,, the gun control lobby will likely lose money, funding and popularity long term as they lose cases. Gun control lobbying and advocacy is mostly a way to push charitable donations into one side of partisan partypolitics, it is almost all 501(c)3. Pushing back gun control will make it more acceptable again for moderate Democrats to work with the NRA which will kill the current high relative advantage to Dem bundlers to attack the second amendment with money and the will take on a different more partisan topic for stalking in (c)3 charitable money.

  • Longtobefree||

    Fun fact: I attended Va Tech in the late sixties, and actually took a pistol to a speech class as a visual aid.
    Nobody died.
    As members of the Rifle and Pistol club, the four rooms at the end of my hall had among them 15 rifles and 10 pistols from .22LR through 44 magnum. We also had (with a permit to let the fire department be aware) powder and bullets for reloading in the dorm room. Friday nights we reloaded close to a thousand rounds of ammunition and on Saturday we strapped on our pistols, slung our rifles and walked across campus and downtown to a Western Auto store to pick up a thousand rounds of .22 and headed out the range to shoot it all up.
    Nobody died. Nobody cared. Nobody tried to shoot up the campus, either.

  • a tandem||

    Interesting, And the official investigative report specifically says

    1) they ended ability of CCL carriers to carry and adult owners to keep firearms in dorms just a couple of years before.
    2) there was not ever one injury or gun crime in the many decades that hundred of firearms were on campus legally.

    What a shame that this gun free zone enabled that very long duration mass murder

  • cynicalretiree||

    The ardent defense of guns leaves me cold as a Reason subscriber. I support 2nd amendment. I support safety restrictions imposed on 2nd amendment. Nobody fears the government taking their alcohol away by supporting qualifying restrictions on 21st amendment..Gun owners in Reason fear safety restrictions on 2nd amendment leads to tyranny.

  • mad_kalak||

    "The ardent defense of guns leaves me cold as a Reason subscriber."

    --elevation of feeling over reason

    "I support 2nd amendment."

    --Standard boilerplate. Think of the phrase, 'I'm not racist, but...'

    "I support safety restrictions imposed on 2nd amendment."

    ---The devil is in the details. Virtually all proposals have been shown to be ineffective, as are many current laws.

    "Nobody fears the government taking their alcohol away by supporting qualifying restrictions on 21st amendment.."

    ---Because the government already tried taking away alcohol once, and it didn't work, but universal acknowledgement.

    "Gun owners in Reason fear safety restrictions on 2nd amendment leads to tyranny."

    ---Because the stated goal of the gun control movement is not safety, but prohibition on the private ownership of arms, and they are willing to get to that goal one slice of the loaf at a time. Additionally, history shows the prohibition on the private ownership of arms leads to tyranny (not universally, but enough times to be wary).

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