Between all the news on gun violence, the shooting in Toronto, and Supreme Court nominee Brett Kavanaugh’s purported opinion on guns and the 2nd amendment, a primer on the Supreme Court and gun rights might be useful.
Generally speaking, there is very little case law from the Supreme Court concerning the second amendment and gun laws. But within the latter part of the 20th century, litigation concerning whether the right to bear arms was an individual right or the right for militia members became more frequent. In 1991, Former Chief Justice Warren Burger famously referred to the Second Amendment of “one of the greatest pieces of fraud… on the American public by special interest groups” in his lifetime.
In 2008, the 2nd Amendment was clarified by the Court’s holding in District of Columbia v. Heller, when it announced that there is an individual right to have a gun in someone’s house for their own defense. This holding was re-affirmed and applied to the states and the federal government in a subsequent case. But, there are limitations to the right (just as there are limitations to the other rights, particularly the First Amendment). The Heller court made it clear that the 2nd Amendment does not bar the government from being able to regulate firearms, and provided examples: the government can limit access to felons or the mentally ill, or in certain places like government buildings. There can also be terms and conditions or other qualifications on the commercial acquisition of guns.
Yet, since Heller, the Court appears reluctant to hear any more 2nd amendment cases. The Court has refused to hear a California case on its waiting-period and a challenge to a ban on concealed-carry weapons outside of the home. It’s also refused to hear cases regarding bans on assault weapons or individuals accused of domestic violence. Lately, though, the Justices did hear a case concerning the straw purchase of someone with a record of domestic violence in a 5-to-4 decision. The Court held that they cannot get a third party to purchase a gun on their behalf.
There are some theories as to why the Court has been so historically reluctant to address the issue of gun rights further. Perhaps they believe that their holding was sufficiently clear in Heller, and there is no need to wade into the bog further. Or, perhaps they believe that some issues should be clarified, but they are not sure they would get the votes to deliver justice. The Court requires four votes to hear cases, and in the past, it has apparently lacked the numbers to grant a review, often because of Kennedy’s unsure vote. Or (most likely) perhaps it is because the Justices themselves have continuously evolving opinions on the matter, and are hesitant to turn that vacillation into precedent.
Regardless, it is clear that the newest nominee has pretty strong feelings on the Second Amendment’s position in the Constitution. He reportedly believes that there is very little room for any gun control that would be constitutional. In one opinion, he likened a ban or regulation on a type of firearms as equivalent to a ban on a category of speech. It appears that in the future, Kavanaugh would be a vote in favor of hearing a challenge to a firearms regulation, which could have a significant impact on the state of gun laws in the United States in the next few decades.