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Brett Kavanaugh Has Already Had an Impact on the Supreme Court, Starting With Gun Rights

For proof of the newest Supreme Court justice's influence, look to a New York gun rights case.
Brett Kavanaugh listens to opening statements during his Supreme Court confirmation hearing on September 4th, 2018, in Washington, D.C.

Brett Kavanaugh listens to opening statements during his Supreme Court confirmation hearing on September 4th, 2018, in Washington, D.C.

When Justice Brett Kavanaugh took his seat on the Supreme Court in October, following a tumultuous confirmation process and allegations of sexual assault, discussions turned to the future of the court. Pundits and experts across the political spectrum mined Kavanaugh's record in an attempt to predict the outcome of potentially landmark cases.

Now, three months after the newest justice joined the court, we have gleaned the first tangible evidence of his influence: On Tuesday, the Supreme Court decided to hear its first major gun rights case in nearly a decade—a decision that many attribute to the added vote of the court's newest member. And if Kavanaugh's record is any indication, it will not go well for gun-control advocates.

According to University of California–Los Angeles law professor Adam Winkler, a specialist in constitutional law, the case (New York State Rifle & Pistol Association v. New York) could have far-reaching impact, possibly creating a constitutional right to public carry that would undermine gun-control legislation across the country.

Simply taking this case marks a reversal in trend for the court under Chief Justice John Roberts, which has traditionally ignored Second Amendment questions. This suggests that the new conservative majority has bigger plans—Kavanaugh in particular. Unlike some of his colleagues, Kavanaugh has been vocal about his support of gun rights and the court's role in upholding them.

"When [Anthony] Kennedy was on the court, the justices declined to take numerous Second Amendment cases," Winkler says. "Now, Kavanaugh is on the court, and the court jumps on one very quickly. Given what we know about the other justices, it seems clear that Kavanaugh's confirmation has reinvigorated the justices' appetite on the Second Amendment question."

Winkler calls Kavanaugh's views on the gun rights "extreme and well-articulated"; others have pointed to the justice's 2011 dissent in a case upholding a Washington, D.C., assault weapon ban, in which Kavanaugh deferred to "text, history, and tradition" (tradition that protects the right to bear arms).

This new challenge comes from gun owners who have called New York City's ban on transporting guns outside city limits "draconian," Amy Howe reports for SCOTUS Blog. If the court rules narrowly—striking down this law alone—it would be a lesser blow. But given that the justices have already broken with tradition in taking the case, experts expect a wider ruling. As Winkler puts it, "The case could go out with a whimper or a bang, but a bang is more likely." In this case, a "bang" means that the right to bear arms would apply not only in the home and for personal protection (as established in District of Columbia v. Heller), but also in public. Experts say the opinion may take until 2020, since the court will hear the case this fall.

On other issues, Kavanaugh and the court have kept a low profile, declining the president's requests to review several cases. These include challenges to the Deferred Action for Childhood Arrivals program, the Trump administration's ban on transgender people in the military, and the citizenship question on the 2020 United States Census.

Some have touted the court's non-decision on DACA and others as evidence of Kavanaugh's ability to separate the law from politics—an impartiality that came under fire during his confirmation hearings. Noah Feldman, writing in the Bloomberg opinion section, argues, "The court's actions show that its newest member, Justice Brett Kavanaugh, may not be prepared to give the president what he wants."

While these passes could be a purposeful effort to keep the court's most controversial member out of the public eye, Winkler says it's just as likely that the justices prefer to let the lower courts weigh in on issues first, a norm that the president has repeatedly asked them to transgress.

"I wouldn't look for the Roberts court to stay on the sidelines for long," he says. "I expect next term we will be back to hearing more blockbuster cases." He adds that neither of the two new justices, Neil Gorsuch and Kavanaugh, has "shown any appetite to be minimalist."

Either way, Kavanaugh cannot shake the specter of his confirmation fight; this week, some conservative outlets reported that House Democrats may revive the debate about whether the justice lied under oath during his testimony.