The Supreme Court’s 2008 decision in District of Columbia v. Heller was, at once, a doctrinal earthquake and a somewhat contained storm. Heller held, for the first time in American history, that the Second Amendment protects an individual right to bear arms. Yet Justice Antonin Scalia’s opinion for the Court contained so many caveats and exceptions that many gun regulations remain intact a decade later.
However, in an interview with the New York Times’ Adam Liptak, retired Justice John Paul Stevens suggests that many of those caveats are likely to be wiped away soon. According to Liptak, Stevens “helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for ‘some important changes’ to Justice Scalia’s opinion.”
The result was a passage providing that Heller should not “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.”
The upshot of Stevens’ highly unusual revelation — justices, even retired justices, rarely disclose internal Court deliberations — is that there are probably no longer five votes on the Supreme Court who support this language in Heller. A wide range of firearm restrictions intended to keep firearms out of the hands of especially dangerous individuals or to keep them out of “sensitive places such as schools” could soon fall.
Kennedy retired from the Court last June, permitting Donald Trump to name Brett Kavanaugh, a staunch conservative, to fill that seat. As a lower court judge, Kavanaugh took an extraordinarily expansive view of the Second Amendment, voting to strike down a D.C. law which “bans possession of most semi-automatic rifles and requires registration of all guns possessed in the District of Columbia.”
Notably, Kavanaugh took this view in a dissenting opinion — two of his most conservative former colleagues formed a majority upholding most of the D.C. law.
Before Kennedy’s retirement, Justice Clarence Thomas occasionally penned dissenting opinions arguing that the Court should take more cases that would allow it to expand gun rights. Yet, while these opinions were sometimes joined by Neil Gorsuch or by the late Justice Scalia, the bulk of the Court remained silent in these cases.
One way to read this silence by Thomas’ fellow conservatives, and by Chief Justice John Roberts in particular, is that a majority of the Court is satisfied with how lower courts have read Heller and don’t see any reason to expand the Second Amendment further. Another way to read it is that the four most conservative members of the Court were uncertain if they’d get Kennedy’s vote if they took up a new guns case.
Stevens’ revelation suggests that the second theory is true, and that the Court is likely to start taking up more guns cases now that Kavanaugh can give them a fifth vote.