Brett Kavanaugh’s consent could limit extreme gun court ruling in future cases

A supermajority of six votes in the Supreme Court significantly expanded gun rights in its decision striking down a New York state law restricting those who can obtain a permit to carry a concealed firearm in public on Thursday.

The decision, written by Judge Clarence Thomas and joined by five other conservative judges, found unconstitutional laws such as New York City’s 100-year-old concealed carry law, which requires people to show proof that firearms are necessary for self-defense. Thomas’ decision also limits the way courts can determine whether a gun control law is constitutional only if “the provision is consistent with this country’s historical tradition regarding firearms regulation.”

But Judge Brett Kavanaugh also wrote an agreement, joined by Chief Justice John Roberts, that appears to offer some restrictions on majority opinion.

According to the agreement, Kavanaugh and Thomas wrote “separately to highlight two important points regarding the limitations of the court’s decision”.

The first limitation of this ruling is that the ordinance to repeal New York State’s concealed carry law only applies to six other states with similar “may issue” laws.

“[T]The court ruling does not prevent states from imposing licensing requirements for carrying a handgun in self-defense,” Kavanaugh writes.

What the decision doesn’t prohibit, Kavanaugh says, is “should make” laws that only require background checks or firearms safety training for a concealed carry permit, rather than New York City’s much more restrictive permit law. .

It’s pretty similar to the language, according to most Thomas. The main difference is that Thomas includes in a footnote the possibility of repealing the “must make” elements of laws if they contain provisions that are “aimed at abuse”.

“[B]Since any permitting scheme can be misused, we do not rule out constitutional problems with mandatory issuance regimes where, for example, long waiting times for processing license applications or exorbitant fees deprive ordinary citizens of their right to public transport.” — footnote. states.

Chief Justice John Roberts (right) and Associate Justice Brett Kavanaugh (left) delivered an agreement in a landmark gun rights case that outlined the limitations of the majority opinion they joined.

Kavanaugh’s agreement is more firm in his contention that “must publish” states have a solid constitutional foundation.

The second limitation in Kavanaugh’s consent is the repetition of the statement in the 2008 Heller v. D.C. decision, which established an individual right to bear arms in the Second Amendment to the Constitution, that the decision was “neither a regulatory straitjacket nor a regulation.” blank check.” States and the federal government may still enact some restrictions on firearms.

Kavanaugh quotes extensively from Heller’s decision to emphasize that the majority decision did not remove the government’s ability to regulate guns in any way. These rules, cited as permissible, include “the possession of firearms by criminals and the mentally ill, or laws prohibiting the carrying of firearms in vulnerable places such as schools and government buildings, or laws imposing conditions and restrictions on the commercial sale of weapons.” But this list is not “exhaustive”, meaning there may be others.

In this case, the opinion of the majority remains decisive. This means that his conclusions are now law. But a coincidence can still affect lower courts because it carries the hallmarks of a “basic match”.

A key match is “when there is a majority opinion, one or more judges agree with the majority opinion, but also write separately, and that judge’s vote is numerically necessary to give the majority opinion enough votes to become a binding precedent”, according to law review document attorneys Thomas Bennett, Barry Friedman, Andrew Martin and Susan Navarro Smelser.

“The opinion is ‘key’ in the sense that without the votes of concurring judges, there would be no majority opinion,” the newspaper continues.

Kavanaugh’s agreement meets these criteria, and this is what makes it remarkable.

“If you’re looking forward to the next case — one that involves some other state’s gun licensing regime — then you need to worry about whether you can count on the votes of Kavanaugh and Roberts,” said Bennett, one of the article’s authors. . . “And if that’s your point of view, then you have to pay very close attention to what they say in their agreement.”

As there is no understanding why Kavanaugh and Roberts felt the need to set these markers, it is not clear how this could change future results.

Did this indicate that Kavanaugh and Roberts would not go as far as the other four conservative judges want? Was this public relations decision to make the majority decision less distasteful to the public, which supports further gun control than currently exists? Or something different?

In any case, Harvard law professor Noah Feldman said in Bloomberg column“Kavanaugh’s insistence that some gun regulations remain valid tells you a lot about how far Thomas’ opinion has gone.”

Thomas’s restriction of all future judicial review of gun laws to historical counterparts threatens to destroy so many existing gun laws and those currently debated in Congress that have no historical counterparts, such as red flag laws and gun bans for domestic rapists. .

“It is true that this will be a major uncertainty issue going forward,” Bennett said. “That’s exactly how this historical methodology that the majority lays out matters to the gun laws in all 50 states. There will be tension between the majority and the point of view of Kavanaugh and Roberts.”

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