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Kavanaugh’s Second Amendment Radicalism Probably Has Five Votes


I mentioned yesterday that nothing in the Constitution prevents any level of government from banning assault weapons or high capacity magazines. But then nothing in the Constitution suggests that Congress can’t subject states with a history of vote discrimination to greater scrutiny, and we know how that went. The Second Amendment was one of the issues on which Kennedy was an actual moderating force, and he’s been replaced by someone who is a complete nut on the issue:

Meanwhile, if President Donald Trump’s most recent appointment to the Supreme Court gets his way, both assault rifles and high-capacity magazines will soon enjoy special constitutional protection. It is likely, moreover, that Justice Brett Kavanaugh has the five votes he needs to make this happen.

In 2008, not long after the Supreme Court struck down its much stronger gun regulations, the District of Columbia passed an emergency law that, among other things, banned assault rifles and high-capacity magazines within the District. The law was challenged, and the challenge eventually reached a panel of three Republican appointees on the United States Court of Appeals for the D.C. Circuit. Two of those judges upheld the law.

The third judge was Kavanaugh. In his dissent, Kavanaugh called for a sweeping expansion of the Second Amendment, beyond even what his two Republican colleagues were willing to endorse. Regarding assault rifles, the future Trump appointee argued that these weapons should enjoy the same nearly unassailable level of level of constitutional protection the Supreme Court afforded to handguns in its 2008 decision in District of Columbia v. Heller.


In addition to permitting bans on “dangerous and unusual weapons,” the 2008 Helleropinion also permits “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” And the section of the opinion laying out these permitted gun regulations also indicates that other, unmentioned gun laws may also be allowed.

There is a catch, however. Heller was a 5-4 decision. Several months before his recent death, retired Justice John Paul Stevens revealed to The New York Times’ Adam Liptak that he “helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for ‘some important changes’ to Justice Scalia’s opinion.”

The 2014 and 2016 elections will have devastating effects on attempts to pass progressive legislation at all levels of government that will be felt for decades.

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