On Saturday, a man in El Paso, Texas, walked into a Walmart and murdered 20 people. He used an AK-47, a kind of assault rifle. Less than a day later, another man in Dayton, Ohio, murdered nine people in a bar. That shooting lasted less than a minute, but the gunman reportedly was able to rapidly attack his victims in part because he used a “high-capacity” weapon.
Meanwhile, if President Donald Trump’s most recent appointment to the Supreme Court gets his way, both assault rifles and high-capacity magazines will soon enjoy special constitutional protection. It is likely, moreover, that Brett Kavanaugh has the five votes he needs to make this happen.
In 2008, not long after the Supreme Court struck down its much stronger gun regulations, the District of Columbia passed an emergency law that, among other things, banned assault rifles and high-capacity magazines within the District. The law was challenged, and the challenge eventually reached a panel of three Republican appointees on the United States Court of Appeals for the D.C. Circuit. Two of those judges upheld the law.
The third judge was Kavanaugh. In his dissent, Kavanaugh called for a sweeping expansion of the Second Amendment, beyond even what his two Republican colleagues were willing to endorse. Regarding assault rifles, the future Trump appointee argued that these weapons should enjoy the same nearly unassailable level of level of constitutional protection the Supreme Court afforded to handguns in its 2008 decision in District of Columbia v. Heller.
“In Heller,” Kavanuagh wrote in his dissent, “the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.” He claimed that “there is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles.”
The D.C. Circuit case, which involved many of the same parties as the Supreme Court’s 2008 decision, was called Heller v. District of Columbia.
The two D.C. Circuit judges that disagreed with Kavanaugh rested much of their opinion on the Supreme Court’s 2008 statement that “dangerous and unusual” weapons are beyond the reach of the Second Amendment. Though the original Heller decision held, for the first time in American history, that the Second Amendment protects an individual right to own a gun, it also laid out several significant limits on the right to bear arms.
In addition to permitting bans on “dangerous and unusual weapons,” the 2008 Heller opinion also permits “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.” And the section of the opinion laying out these permitted gun regulations also indicates that other, unmentioned gun laws may also be allowed.
There is a catch, however. Heller was a 5-4 decision. Several months before his recent death, retired Justice John Paul Stevens revealed to The New York Times’ Adam Liptak that he “helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for ‘some important changes’ to Justice Scalia’s opinion.”
These changes were the passages in Heller indicating that the decision “should not be taken to cast doubt” on many existing kinds of gun regulations.
Kennedy, however, is no longer on the Supreme Court. And Kavanaugh appears unlikely to support the language Kennedy pushed to include in the Heller opinion. Assault rifle bans and other bans on dangerous and unusual weapons, in other words, likely hang by a thread.
One more fact is worth noting. Before Kennedy’s retirement, the Supreme Court largely avoided Second Amendment cases — often over angry dissents by Justice Clarence Thomas. It hasn’t heard such a case since 2010.
It’s likely that the justices avoided such cases because some members of the conservative bloc were unsure how Kennedy would vote if another Second Amendment case reached the Supreme Court. So its significant that, just months after Kavanaugh joined its bench, the court announced that it would hear its first Second Amendment case in years.
In fairness, there is a chance that this case will be dismissed as moot. After the court announced it would hear the most recent Second Amendment case, New York City changed the gun regulation at issue in a likely effort to prevent the Supreme Court from reaching a decision.
But there’s virtually no doubt that Kavanaugh is eager to expand the Second Amendment, and little doubt that the Supreme Court is now in much more of a hurry to hear big guns’ cases than it was when Kennedy was still on the bench. Many future gunmen may soon enjoy broad rights to purchase the kinds of weapons used to commit mass murder in El Paso and Dayton.