A story in Roll Call tells why the nomination of Judge Brett Kavanaugh to the Supreme Court has anti-gunners on edge. (Screen capture, YouTube, C-SPAN)
It’s the anti-gunners’ worst nightmare, a Supreme Court majority that abides by the Constitution, and accepts more Second Amendment cases; a scenario suggested by a piece in Roll Call regarding the nomination of Judge Brett Kavanaugh to fill the vacancy being created by the retirement of Justice Anthony Kennedy.
The notion even appears to terrify the Los Angeles Times editorial board, which took a dim view of this week’s ruling by a Ninth Circuit Court of panel ruling that the Second Amendment protects the right to openly carry a defensive sidearm outside of the home. The editorial candidly observes:
“Judge Brett Kavanaugh, President Trump’s conservative nominee to replace the retiring and more centrist Justice Anthony M. Kennedy, embraces an expansive approach to the 2nd Amendment. While his confirmation would not necessarily mean a court more friendly to gun rights, it would probably mean that the court will consider more challenges to gun control laws, with Kavanaugh providing the fourth vote to grant a hearing (it takes five justices to reach a majority decision). And once the court decides to hear a case, anything can happen.”—Los Angeles Times editorial, July 26
Roll Call’s analysis of how a Kavanaugh appointment to the high court could shake out on the subject of Second Amendment rights, and how it might put Chief Justice John Roberts’ in the position of “swing vote,” making him the most influential jurist in the United States, bears reading. Roberts joined the majorities in both the 2008 Heller and 2010 McDonald rulings that began restoring the Second Amendment to its proper position of import on the Bill of Rights.
But the L.A. Times editorial isn’t too keen on that.
“The Supreme Court ruled a decade ago — and for the first time — that the 2nd Amendment grants individuals the right to keep firearms in their homes for personal protection,” the editorial stated. “It was the wrong decision; courts until then operated under the belief that the 2nd Amendment was framed with state militias in mind.”
Second Amendment scholar Eugene Volokh at UCLA notes otherwise. In the first place, the Second Amendment doesn’t “grant” anything, it merely enumerates and protects a fundamental right; the kind of right with which “all men” are “endowed by their Creator,” as noted in the Declaration of Independence, which identified life, liberty and the pursuit of happiness” as such rights.
The L.A. Times editor responsible for the editorial also needs to study history. The Supreme Court has previously held forth on the Second Amendment several times, in Dred Scott (1857), Cruikshank (1876), Presser (1886), Verdugo-Urquidez (1990) and other cases.
Perhaps the Roll Call piece explains the angst best in its allusion to anti-gun Democrat Sen. Chris Murphy of Connecticut:
“Democrats such as Sen. Christopher S. Murphy of Connecticut and groups advocating gun control laws say Kavanaugh’s appointment to replace retiring Justice Anthony M. Kennedy could make the difference and give the court the fourth vote to take the cases and strike down gun control laws.
“I worry Kavanaugh will be influential,” Murphy said. “I think there’s a developing expectation that right-wing judges invalidate any and all restrictions on the Second Amendment. I worry he will pull the court to a place where no state or municipality can exercise any oversight on gun laws.”
States would retain authority to regulate such things as place and manner of bearing arms, but they would not be able to prohibit the bearing of arms by banning both open and concealed carry. If one method is not allowed, the other must be, as noted earlier in the week by Alan Gottlieb, founder of the Second Amendment Foundation and chairman of the Citizens Committee for the Right to Keep and Bear Arms.
“The Second Amendment Foundation,” he told the Washington Free Beacon, “has always said that you have to allow some form of carry for self-defense. If you ban concealed carry you must allow open carry or vice versa. You can’t ban both and have no carry under the Second Amendment.”