WASHINGTON — President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court Monday night shows that long fought out cases involving the Second Amendment could actually be taken to the highest court if he is confirmed.
Ed Whelan writes at National Review that in the subsequent case to the Supreme Court’s landmark decision on the Second Amendment in D.C. v. Heller, the D.C. circuit court that Kavanaugh serves upheld the district’s ban on the possession of most semi-automatic rifles and the requirement that all firearms be registered, but Kavanaugh dissented saying in part:
“In Heller, the Supreme Court held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.”
Kavanaugh went on to write in his dissent:
“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.”
“Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)”
Kavanaugh also scrutinized D.C.’s firearm registration mandate. He called it “significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, ‘longstanding’ gun regulations in the United States.”
The Supreme Court has been unwilling to take up a gun rights case in recent years. It has denied cases dealing with challenges to gun control issues in the states and in 2008 and 2010 the court voted 5-4, with Justice Kennedy in the majority as the swing vote, to turn away these cases.
Most recently, Politico noted, the court turned away Ed Peruta, the litigant in the nine-year Second Amendment battle known as Peruta v. California. Peruta took on his home state’s strict gun laws claiming he had a constitutional right to carry in public spaces, but the high court declined his petition on the last day of its session over a year ago.