The Coming Judicial War on Gun Control

As I’ve argued before, D.C. v. Heller was actually a modest opinion, and the federal government and most states and localities have enacted far less gun control legislation that the case’s holding permits (or, in some cases, does not obviously forbid.) The primary barrier to robust gun control has been political, not the Constitution or the Supreme Court. But as the federal courts become Trumpified this is probably about to change:

Another new judge, Stephanos Bibas, dissented last month from a decision by a panel of the Court of Appeals for the Third Circuit that upheld a New Jersey law limiting a firearm magazine to 10 rounds of ammunition. He said the state had failed to provide sufficient evidence that “specifically links large magazines to mass-shooting deaths.” Acknowledging that five other federal circuit courts have also upheld limits on magazine sizes, Judge Bibas observed that while judges were understandably concerned about gun violence, “they err in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof.”
“The Second Amendment is an equal part of the Bill of Rights,” Judge Bibas wrote. “We may not water it down and balance it away based on our own sense of wise policy.” That case is likely to be appealed to the Supreme Court. The New Jersey affiliate of the National Rifle Association, which brought the case, is first seeking review by the full Third Circuit.

The 49-year-old Judge Bibas, a former law professor, won plaudits for his dissenting opinion. “It is easy to see why President Trump chose to appoint him,” said an article on the website ammoland.com that appeared under the headline: “Third Circuit: Second Amendment Is a Second Rate Right.” John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round knockout, or a checkmate within 10 moves.” He added, “It will not be the last opinion of the Trump appellate judges that will shake the judiciary from its dogmatic slumber.”

My third point is this: Professor McGinniss may well be right, at least when it comes to the Second Amendment. The substitution of Brett Kavanaugh for Justice Kennedy may do the trick. On his former court, the Court of Appeals for the District of Columbia Circuit, Justice Kavanaugh took an aggressive gun-rights position, dissenting in 2011 from a decision that upheld the district’s ban on certain assault rifles.

Calling the majority’s analytical approach to the case “especially inappropriate,” then-Judge Kavanaugh wrote: “A ban on a class of arms is not an ‘incidental’ regulation. It is equivalent to a ban on a category of speech.” As a matter of constitutional doctrine, I understand his argument: that a right deemed by the Supreme Court to be fundamental, whether under the First Amendment or the Second, is entitled to the highest level of judicial protection. Nonetheless, to analogize possession of assault rifles to the right to free speech is a provocative move.

The two conservative judges who made up the majority on the three-judge panel, Douglas Ginsburg and Karen LeCraft Henderson, were sufficiently provoked by Judge Kavanaugh’s 52-page dissent that they added to their own opinion an unusual six-page “appendix” for the specific purpose of contesting his arguments. “The dissent mischaracterizes the question before us,” Judge Ginsburg wrote for himself and Judge Henderson. “We simply do not read Heller as foreclosing every ban on every possible sub-class of handguns or, for that matter, a ban on a sub-class of rifles.”

Justice Thomas himself has cited Judge Kavanaugh’s dissenting opinion favorably. It would hardly be surprising for Justice Kavanaugh to return the favor and join the crusade.

And that brings me to my final point. The Supreme Court’s appetite for expanding the Second Amendment, if such an appetite develops, will be wildly out of sync with the mood of the country. As The Times reported last month, based on data compiled by a gun-control advocacy group, public support for gun-control measures is surging. State legislatures passed 69 gun-control measures in 2018, more than three times the number in the previous year. More than half the states enacted at least one, while 90 percent of bills the National Rifle Association backed at the state level were defeated.

Republicans can’t persuade the public about anything, so judicial fiat will become more and more attractive.