Gun Control Laws May Face Tougher Test If Kavanaugh Confirmed

Gun control measures may face a new constitutional test if U.S. Supreme Court nominee Brett Kavanaugh’s view prevails on the high court.

Kavanaugh, who has defended gun rights, relies on history and tradition for analyzing gun control measures under the Second Amendment.

But Kavanaugh’s analysis is outside the mainstream approach now being used by federal circuit courts, UCLA Constitutional Law Professor Adam Winkler told Bloomberg Law. Winkler wrote the book “Gunfight: The Battle Over the Right to Bear Arms in America.”

Gun rights practitioner James B. Astrachan, of Astrachan Gunst Thomas PC, Baltimore, agreed, and said that most courts today apply an intermediate scrutiny analysis in Second Amendment cases.

Hostility to Novel Laws

On the Supreme Court, Kavanaugh’s likely to be hostile to novel and innovative solutions to gun violence, Winkler said. Kavanaugh’s dissent in Heller v. District of Columbia (Heller II) provides a roadmap of the view he may espouse on the court, he said.

Kavanaugh will probably press his test for analyzing gun regulations at the Supreme Court, but the other justices may not be willing to follow along, Astrachan told Bloomberg Law.

The other justices may instead choose a third option and apply strict scrutiny in Second Amendment cases, Astrachan said. To pass that analysis, the regulation will need to be narrowly tailored to the government’s interests, he said.

Strict scrutiny is a stringent analysis that is traditionally used to determine if a fundamental right is being violated or a suspect classification, such as race, is being used to discriminate. Intermediate scrutiny, on the other hand, is most often used where sex-based classifications or speech rights are at issue.

Right to Bear Arms

In District of Columbia v. Heller (Heller I), the Supreme Court held that private citizens have a Second Amendment right to own guns for self-defense in their homes. In Heller II, the U.S. Court of Appeals for the District of Columbia Circuit said Washington’s ban on semi-automatic rifles was permissible.

The Heller II majority applied an intermediate analysis where the regulation was required to be substantially related to an important government interest. The ban on semi-automatic rifles was constitutional because there is a substantial relationship between the ban and protecting police officers and preventing crime, it said.

Kavanaugh’s dissent argued that Heller I rejected applying intermediate scrutiny to Second Amendment cases. Instead, he read Heller I as holding that only gun regulations based on the text, history, and tradition of the Second Amendment are constitutional.

Kavanaugh’s rigid interpretation of Heller I rejects balancing the government’s interest in regulating guns, Winkler said. It also undermines gun control laws, such as the regulation of semi-automatic rifles, that aren’t longstanding, he said.

Kavanaugh’s approach may be a minority view, but , he has been particularly effective at persuading the justices to see things his way through his dissents on the D.C. Circuit.

Future Cases

If Kavanaugh is confirmed, the court will be poised to take more Second Amendment cases, Astrachan said.

It takes four Supreme Court justices to agree to grant a particular case review, and Kavanaugh seems to be a sure fourth vote in gun cases, Winkler said. The court doesn’t publish who votes to grant review, but Winkler said Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch likely want to take more Second Amendment cases.

With this lineup, Chief Justice John G. Roberts Jr. may well be the deciding vote in gun cases, Winkler said. Roberts was in the majority in Heller I, he said.

The liberal justices may now regret not taking more gun cases while Kennedy was still on the court, Winkler said.