As we and others have frequently complained, the Supreme Court has been notably reluctant to take Second Amendment cases in recent years. That reluctance has let a number of lower court rulings that directly conflict with the Heller and McDonald decisions stand in a number of districts.
Those cases include an “assault weapons” ban in Maryland, microstamping and may issue in California and may issue in New York state.
Speculation by Court watchers was that, because of the unpredictability of former Justice Anthony Kennedy, the pro-2A justices would rather let those Heller-defying lower court rulings stand than risk Kennedy siding with the left-leaning Justices and issuing an adverse gun rights decision.
But Kennedy is gone, replaced by Justice Brett Kavanaugh, who has a solid record of Second Amendment support in his opinion paper trail.
This from reason.com:
The D.C. “assault weapon” ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. “The list appears to be haphazard,” Kavanaugh noted. “It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not.” In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.
“In Heller,” Kavanaugh noted, “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. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic 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, semi-automatic 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.”
Some gun rights supporters blew a gasket in November when the Court, with Kavanaugh in place, denied cert in Rothery, the California may issue case. But as attorney and friend of TTAG LKB pointed out, Rothery had a number of problems that made it a less-than ideal test case.
He saw another case on the horizon that is, in his estimation, an ideal candidate for Supreme Court review.
I believe that the day of reckoning for the anti-2A forces is coming. Roberts being Roberts (and I think he’s going to be the key vote given the current composition of the Court), he’s going to want a near-perfect test case before he’ll enforce/expand Heller. There are several in the pipeline that might do the job.
My prediction is that whatever case they take, Roberts writes a narrow opinion that declares that laws that impinge 2A rights are subject to strict scrutiny, and kicks the case back down for determination under that standard. (Thomas will write a blistering concurrence joined by 2-3 others saying that there’s no need to send it back, as there is no way the law in question survives strict scrutiny.) …
Roberts and likely Kavanaugh are going to want to wait for an ideal 2A test case. Best bet right now is New York State Rifle and Pistol Association v. City of New York, given that the NYC laws are so draconian as to amount to a blanket denial of 2A rights. We should have a decision on whether they will hear the case early next year.
Today, the court vindicated LKB’s prognostication powers, granting cert to New York State Rifle and Pistol Association v. City of New York, a case that challenges the city’s prohibition on transporting licensed, locked and unloaded handguns outside the city.
While ruling the law unconstitutional would seem to only overturn New York City’s law, LKB expects a narrowly crafted opinion that declares that any law that restricts Second Amendment rights would be subject to strict scrutiny, the highest possible threshold.
If that were to happen, it . . .
…would nuke just about all the Heller-agnostic Court of Appeals rulings out there (which typically hold that 2A challenges get only intermediate scrutiny or rational basis review), and make it very hard for district and circuit judges to continue to wink at Heller. When laws are subject to “strict scrutiny” constitutional analysis — for example, laws that impose prior restraints on free speech — almost never survive the challenge.
That would mean our friends living behind enemy lines in states like California, Washington, Hawaii, New York, New Jersey, Massachusetts, Connecticut and Maryland would have many of their constitutionally protected gun rights restored.
We, like you, will be watching this case closely. Stay tuned.