2nd Amendment law likely to get much worse
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I have argued before that the 2nd Amendment is not a major reason why America’s gun control regime is so weak — even D.C. v. Heller was a relatively narrow decision, and most states and Congress have passed much less gun control legislation than Heller explicitly permitted. This, however, is likely to change fairly soon, as the Trump Court will go after fairly common gun control regulations:
The Supreme Court announced on Monday that it will hear New York State Rifle & Pistol Association Inc. v. Corlett, a case that could transform the judiciary’s understanding of the Second Amendment and lay waste to many of the nation’s gun laws.
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The plaintiffs in Corlett include a New York state gun rights group and two New York men who applied for a license to carry a handgun in public and were denied that license. They claim that “law-abiding citizens” have a Second Amendment right to carry a gun in public — and the Supreme Court, with its 6-3 conservative majority, could agree with them.
Indeed, Corlett could potentially dismantle more than a decade of judicial decisions interpreting the Second Amendment, imposing prohibitive limits on lawmakers’ ability to reduce gun violence.
The key here is that thanks to the late Justice Stevens we know that Kennedy was the reason for most of the qualifying language in Heller, while his replacement is a Second Amendment extremist:
While lower court judges have largely embraced the “two-step analytic framework” applied by most circuits, there have been a few dissenters. One dissenter is Justice Brett Kavanaugh, who argued in a 2011 dissenting opinion, when he was still a lower court judge, that the consensus approach should be abandoned. “Courts are to assess gun bans and regulations based on text, history, and tradition,” Kavanaugh claimed, “not by a balancing test such as strict or intermediate scrutiny.”
In that 2011 case, Kavanaugh would have struck down a law banning semi-automatic assault weapons and requiring gun owners to register their firearms.
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Shortly before his death in 2019, retired Justice John Paul Stevens revealed some of the internal deliberations behind the Supreme Court’s Heller decision. After former Justice Antonin Scalia, the author of Heller, circulated his original draft to the Court, former Justice Anthony Kennedy asked for “some important changes” to that draft.
Because Heller was a 5-4 decision, Scalia needed Kennedy’s vote to hold onto his majority. According to Stevens, it was Kennedy who requested that the opinion include language stating that Heller “should not be taken to cast doubt” on many existing gun laws.
But Kennedy retired from the Supreme Court in 2018 and was replaced by Kavanaugh. And Justice Ruth Bader Ginsburg, who joined the dissent in Heller, died in 2020 and was replaced by Barrett.
The current Court, in other words, is much more conservative than the Court that decided Heller in 2008. It’s not even clear that a majority of the current Court supports the portions of Heller that limit the scope of the Second Amendment — much less the kind of analysis that led the Second Circuit to uphold New York’s gun licensing law.
Most of the credit Kennedy got for being a moderate influence on the Court should be withdrawn in light of his decision to retire strategically, and the 2nd Amendment will be one of the clearest examples of this.