Justice Brett Kavanaugh’s concurring opinion to Thursday’s US Supreme Court decision striking down New York’s conceal carry gun law might provide liberal lower court judges a way to uphold state gun control laws.
How much weight the concurrence, which Chief Justice John Roberts joined, will carry depends on the court that’s hearing future cases.
“I hate painting with too broad a brush, but I would think that the Second Circuit would probably put a lot of weight on that concurrence,” Raffi Melkonian, a partner and appellate lawyer at Wright Close & Barger, said of the New York-based appeals court.
Kavanaugh cited the Supreme Court’s 2008 decision in District of Columbia v. Heller, which held the Constitution protects an individual right to possess a firearm in the home for self-defense, for the idea that “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”
He then quoted Heller author, the late Justice Antonin Scalia, saying “nothing in the opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places.”
Legal scholars say Kavanaugh’s opinion reads as a reassurance that some gun laws will stand after the court in its majority ruling said for the first time the Second Amendment protects gun rights outside the home.
The concurrence allows “for some fairly common sense restrictions,” said Jeffrey Fagan, a professor at Columbia Law School and expert in firearm policy. “On the other hand, the court in the majority opinion goes out of its way to say that public safety considerations have to take a back seat to the absolute right to bear firearms as designed in the Second Amendment.”
“There’s real tension here inherent between the Kavanaugh-Roberts concurrence and the majority opinion,” he said.
In the majority decision written by Justice Clarence Thomas, the court said a state “must prove their firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms” for it to be upheld.
Kavanaugh’s “concurrence is quite different in tone,” said Thomas Bennett, a professor at the University of Missouri School of Law.
“It is much more moderate in the pronouncements that it makes in how the law can be expected to change after this opinion,” he said. “And in explicit terms of what it says, it also emphasizes two important limits.”
First, states can put some limits on concealed carry permits, so long as they don’t give government officials too much discretion, Bennett said. Second, there are still certain historical limits on gun ownership—like limits on ownership by felons—that the Second Amendment doesn’t cast any doubt upon, he added.
Kavanaugh and Roberts joined Thomas’s majority opinion along with justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett, but still issued a separate concurrence.
While concurrences typically, have no force of law, they’re more impactful when one or more members of a court majority also choose to write separately, undercutting the majority’s rule in the case, Bennett said.
“It struck me reading the Bruen opinion that this was exactly that scenario,” Bennett said. This is a high profile constitutional ruling where Kavanaugh and Roberts votes were numerically necessary to the majority, he said, just the kind of separate concurring opinion “that would be likely to draw additional attention from lower courts and set the field of battle for future cases.”
Not everyone sees tensions here. Some argue Kavanaugh joined the majority and then wrote separately to avoid confusion about the court’s holding.
“It was very clear those six justices did not want a situation where certain people could try to take advantage of the differences in the concurrences to try to carve out an exception that wasn’t there or to have an exception swallow the rule,” said Mark W. Smith, a senior fellow in law and public policy at The King’s College, said during a webinar hosted by the Federalist Society Thursday.
“I don’t see any dramatic tension between what Justice Kavanaugh wrote and the majority opinion.”