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For Years, the Supreme Court Has Been Silent on Gun Rights — Until Now

By taking its first Second Amendment case in eight years, the Supreme Court could show just how conservative it is

Supreme Court Associate Justice Brett M. Kavanaugh waits for the arrival of Former president George H.W. Bush to lie in State at the U.S. Capitol Rotunda on Capitol HillFormer President George H.W. Bush lies in state, Washington DC, USA - 03 Dec 2018

With Justice Kavanaugh now on the bench instead of Justice Kennedy, the Supreme Court agreed to hear a case out of New York City challenging local gun restrictions.

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When Brett Kavanaugh replaced Anthony Kennedy on the Supreme Court this past fall, most people thought the most drastic changes would come in the areas of abortion, LGBT rights and the death penalty. Justice Kennedy was a conservative, but he often sided with the Court’s liberals on these areas of the law. Justice Kavanaugh was expected to be more reliably conservative, thus less likely to break ranks with the others on the Court’s right.

Tuesday, however, we got a big hint about another area of the law where Justice Kavanaugh might prove to make a big difference — the Second Amendment. When he was on the Court, Justice Kennedy supported gun rights, voting with the Court’s conservatives in two landmark cases. In 2008, the Supreme Court held that the Second Amendment protects an individual’s right to own a handgun, and in 2010, the Court reaffirmed that precedent and applied it nationwide. Justice Kennedy sided with gun owners in both of these cases.

Since those cases, though, the Court has been silent on gun rights. Lower courts around the country have followed those precedents with respect to handgun bans, but have largely refused to expand them to strike down other forms of gun restrictions, such as waiting periods or restrictions on other kinds of guns. Those cases have been appealed to the Supreme Court, but until now, the Supreme Court has refused to hear them. In fact, last year Justice Clarence Thomas grew so frustrated by this pattern that he wrote a long dissent to yet another refusal from the Court to get involved, accusing his colleagues of viewing the Second Amendment as a “constitutional orphan” and the lower courts as acting in “defiance” of the Supreme Court.

That changed Tuesday. With Justice Kavanaugh now on the bench instead of Justice Kennedy, the Supreme Court agreed to hear a case out of New York City challenging local gun restrictions. The ordinance at issue in the case allows New Yorkers to have licensed handguns in their homes, but it restricts them from transporting them outside their homes to anywhere other than seven gun ranges within the city. That means that city gun owners who want to bring their gun with them on a trip, to a second home outside the city or to a gun range somewhere else in the state cannot do so.

The New York Rifle & Pistol Association and three city gun owners sued New York City asking a federal court to strike the law down as unconstitutional. They argued that their right to own a handgun under the Second Amendment is restricted too much by the city law. The city defended the law as based on “public safety,” and the federal appeals court that covers New York agreed with the city. It found that the law promotes safety and that the individual gun owners still have the basic right to own and possess a gun in their home for self-protection. They may not be able to bring their gun with them to another location, but the city has done nothing to stop them from defending themselves at home with their gun.

With Justice Kavanaugh now on the bench, the Supreme Court took its first Second Amendment case in eight years. What this signals is quite clear — that the Court is poised to strike down New York City’s law and allow gun owners to transport their weapons freely. As always, there’s no guarantee, and one of the conservative Justices could surprise us. But that seems unlikely.

What seems more likely is that, while he was on the Court, Justice Kennedy supported the basic right to own a handgun for self-defense, but he was unwilling to go much further to expand gun rights. Thus, the Court never had enough votes to strike down the various laws that came to it in the past decade and instead ignored those cases. But now, with Justice Kavanaugh, the Court’s conservatives think they have the fifth vote to expand the Second Amemdment, so they took this new case.

The big question when the Court hears the case at the beginning of the fall will then be how far the Court will go with this case. Will it strike down this idiosyncratic New York law in a narrow decision that doesn’t apply much beyond the transportation of handguns for limited purposes? Or will it go further and announce a broad right to carry weapons however an owner sees fit? And will it give clear guidance to lower courts that they are to be less forgiving of all types of gun restrictions in future cases?

Given the change in Court personnel and how conservative it promises to be in the future, it’s likely the Court is going to use this case to expand the Second Amendment beyond just the facts here. If it does so, we will get our first big change from the Kavanaugh Court — not in abortion, not in LGBT rights and not in the death penalty, but rather in the right of people to bear arms, public safety be damned.

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