Law & the Courts

The Second Amendment: A New Litmus Test?

Display at a gun store in Uniondale, N.Y., 2013 (Shannon Stapleton/Reuters)
The Second Amendment may soon supplant abortion as a litmus test for federal judges.

Editor’s Note: This article originally appeared on Arc Digital. It is reprinted here with permission.

Though it constitutes a minuscule part of the Supreme Court’s docket, abortion dominates the politics of appointing a new justice to the nation’s highest court. It is the litmus test. As it remains the hottest salient issue in the culture war and a proxy for so many other of its battles, this is understandable. After all, when President Trump made his pitch to social conservatives to vote for him because of judges, it wasn’t their views on Chevron deference or the dormant Commerce Clause that he was alluding to.

Yet an argument can be made that the focus on abortion is misplaced. As a legal matter, abortion has reached a dead end. Though there continue to be fights over various restrictions and limitations, the field itself is exhausted. Abortion has long been trapped between the 40-yard lines, the dispute being over whether it’ll expand to the 30s.

There are other areas of the law which, though nearly as controversial, remain mostly undeveloped. Ones where a new Supreme Court justice could have a decisive impact. Gun rights, for example. Compared with abortion, it is an undiscovered country. Since the landmark Heller v. D.C. (2008) and McDonald v. Chicago (2010) decisions, the Supreme Court has studiously avoided taking another Second Amendment case.

That is likely to change in the near future. As it does, there is a strong possibility that a nominee’s views on gun rights will become as important as his or her views on abortion. In other words, the Second Amendment may soon become as much of a litmus test as Roe v. Wade.

A New Sheriff in Town

The conventional wisdom has been that the Supreme Court refused further gun-rights cases because of Anthony Kennedy. The other conservative justices were unsure how he would vote should they hear one, so they chose to hear none.

His potential colleagues would have much less reason to doubt how Brett Kavanaugh would vote. His record suggests he holds an expansive view of gun rights. Most of the focus has been on his dissent in the so-called Heller II case, a follow-up to the Heller case, in which the D.C. Circuit Court of Appeals upheld the District of Columbia’s new, post-Heller gun regulations, including its ban on “assault weapons” and requirement to register handguns.

Neither could be justified under the Second Amendment, Kavanaugh declared. Heller established that only “longstanding” limits on gun ownership and possession are valid. But since

the vast majority of states have not traditionally required and even now do not require registration of lawfully possessed guns, D.C.’s registration law — which is the strictest in the Nation and mandates registration of all guns — does not satisfy the history- and tradition-based test set forth in Heller and later McDonald.

The ban on so-called assault weapons must fail for the same reason. Because ownership of semi-automatic weapons besides handguns has traditionally been legal, “the government may not generally ban semi-automatic guns, whether semi-automatic rifles, shotguns, or handguns.” Moreover, he dismissed the notion that semi-automatic rifles can be differentiated from semi-automatic handguns:

Using the rhetorical term “assault weapon” to refer to semi-automatic rifles does not meaningfully distinguish semi-automatic rifles from semi-automatic handguns. Nor does the rhetorical term “assault weapon” help make the case that semi-automatic rifles may be banned even though semi-automatic handguns are constitutionally protected.

Semi-automatic rifles are no more dangerous or unusual than semi-automatic handguns. If the Supreme Court permits the latter, then logically the former must also be permitted.

Perhaps the clearest indication of Kavanaugh’s views on the Second Amendment is his comparison of restrictions on gun rights with limitations on freedom of speech. To ban a class of weapons as D.C. did is “equivalent to a ban on a category of speech.” Were the Supreme Court to adopt Kavanaugh’s view, gun rights would expand considerably.

The consensus is clear. A Justice Kavanaugh would be much more inclined to strike down gun-control legislation than Justice Kennedy. As goes Kavanaugh, so goes the Supreme Court? We are likely to find out before long.

Cracks in the Dam

The Supreme Court can ignore the Second Amendment if it wants to, but lower courts don’t have that luxury. Hence, they continue to deal with gun-rights litigation on a regular basis. Several recent cases demonstrate that the gun issue is not going away and that eventually the Supreme Court will have to deal with it again, no matter how much it would prefer not to.

A Justice Kavanaugh and his colleagues may have to adjudicate whether the Second Amendment extends to carrying weapons outside the home openly. They may also have to determine if states can ban “large capacity” magazines that hold more than ten bullets

The Ninth Circuit recently addressed both questions, and in each instance the notoriously liberal tribunal rendered judgments favorable to gun rights. A three-judge panel ruled late last month that Hawaii’s ban on open carrying of guns is unconstitutional. The judges concluded that although concealed carrying of weapons is outside the Second Amendment, its reference to bearing — as well as keeping — arms entails some manner of possessing weapons in public for self-defense. A separate panel also upheld a temporary injunction against a new California law that outlaws so-called large-capacity magazines and mandates they be transported out of state, sold to a licensed firearms dealer in California, or surrendered to the authorities.

As National Review’s David French noted, the latter decision is limited. The court upheld only the injunction on the grounds that it was issued properly and the judge had the authority to make it. Moreover, it is only in place pending a full trial, and there the judge may decide the law is valid after all. The state has asked for the entire Ninth Circuit to review the matter as well, and the Ninth Circuit as a whole is hostile to gun rights.

If the Supreme Court does not use one of these cases to, as French put it, “reset the gun-control debate,” it has plenty of other options to choose from. Maybe it will select Mance v. Sessions, a Texas case challenging the federal ban on out-of-state gun sales. The trial judge found it unconstitutional, but a three-judge panel of the Fifth Circuit upheld the ban, and then the full Fifth Circuit refused to reconsider. A decision striking a core tenet of America’s gun laws, had that been the outcome, would surely invite intervention by the Supreme Court.

Yet even this may not be enough. The justices have maintained their steadfast refusal to place the Second Amendment back on their docket despite one challenge after another to these sorts of regulations. Perhaps what is needed to grab their attention is a novel case presenting issues unlike any they’ve seen before.

“Novel” certainly describes the current contretemps over 3D-printed guns. In June, the State Department settled a five-year-old dispute with Cody Wilson and his firm, Defense Distributed, allowing them to publish online the blueprints for such weapons, which he had hitherto been blocked from releasing. (They always remained available elsewhere; it’s the Internet.) The files were due to be released at midnight on August 1 until a federal judge in Washington enjoined their publication. Wilson temporarily shuttered his website, but activists quickly uploaded the files to another site not subject to the order.

If any case rouses the Supreme Court from its Second Amendment inertia, this is the one to do it. Not only does it involve questions about the scope of the Second Amendment, it implicates the First Amendment as well.

In his response to the suit that led to the injunction against Wilson, Josh Blackman, Wilson’s lead attorney, was categorical. “This case implicates foundational principles of free speech,” he avowed, and by failing even to acknowledge them, the nine attorneys general suing Wilson demonstrated “a careless disregard for the Bill of Rights,” seeking as they do “to infringe the liberties of all Americans.” Blackman denounced the ruling as “a massive prior restraint of free speech.”

Will the unusual intersection of free speech and gun rights be enough to entice the Supreme Court to intervene? Perhaps. Kavanaugh has a record of being as strongly protective of free speech as he is of gun rights, so this case seems crafted for him.

The case also involves technical questions of a sort only the justices can resolve, such as the constitutionality of national injunctions and the ability of one federal judge to override another (as the Washington judge has effectively done by invalidating Wilson’s court-approved settlement with the government).

Whether it is one of these cases or another that doesn’t exist yet, sooner or later the Second Amendment will return to 1 First St., NE. The reason has nothing to do with Brett Kavanaugh — and everything. Nothing because of Kavanaugh personally. Everything because of what he represents. The Supreme Court will have to confront the Second Amendment again because eventually there will be enough Donald Trump appointees on the federal bench to make it.

Lawyers, Guns, and Money

To understand why, we must turn again to Mance v. Sessions. Recall that the full Fifth Circuit decided against hearing Mance’s appeal, leaving the decision of the three-judge panel upholding the law, and thereby the legal status quo, intact. If, however, the full court had heard the appeal and decided the law was unconstitutional, it would have represented a major shift in America’s gun laws.

If a federal appeals court struck down a basic provision of federal gun regulations — that you can’t sell or purchase guns across state lines — of course the Supreme Court would have to weigh in. It won’t have to, but not for anything to do with the law. The Supreme Court won’t hear Mance v. Sessions because Donald Trump hasn’t finished appointing judges to the Fifth Circuit.

The vote not to rehear the panel’s decision overruling the district court was 8–7. President Trump has appointed five judges to the Fifth Circuit. Four of them voted for the full court to review Mance. The only reason the fifth didn’t is because he had just been confirmed by the Senate and had yet to take his seat. One vacancy is pending. Add those two judges and you can do the math.

Just as noticeable as all four Trump appointees voting for an en banc hearing (as it is called) was that three of George W. Bush’s voted against it. Republican-appointed judges, one would think, wouldn’t vote against a Second Amendment claim. Yet three of them did. Which is why the Second Amendment is likely to turn into another litmus test — at least on the right.

As I noted on Twitter, three GOP judges voting against the Second Amendment (however indirectly) is why the Trump/Federalist Society judicial project exists and why conservatives will remain wedded to Trump as he transforms the judiciary. Such deviation simply won’t be tolerated anymore.

For proof, just look at Mark Bennett. Trump nominated him to one of Hawaii’s seats on the Ninth Circuit. He was confirmed, but 27 Republican senators voted against him. More Republicans voted against Bennett than have voted against all of Trump’s other judicial nominees combined.

Why would a majority of GOP senators vote against a Republican judicial nominee? Because when he was Hawaii’s attorney general, Bennett joined an amicus brief in the Heller case rejecting the view that the Second Amendment protects an individual right to bear arms. That was enough to turn a majority of Republican senators against him.

It is not unreasonable to think that Mark Bennett may be the last Republican-appointed federal judge to be hostile to gun rights. Instead, the expectation henceforth will be that they will be like the Trump appointees on the Fifth Circuit, who, objecting vociferously to the decision not to rehear Mance, strove heroically, as Breitbart put it, to “rescue” the Second Amendment.

One, Don Willett, proclaimed that “the Second Amendment is neither second class, nor second rate, nor second tier.” Another, James Ho, compared the ban on interstate sales of guns to banning the interstate sale of books. Neither lawful gun owners nor the Second Amendment should be relegated to second-class status, he insisted, because of “hoplophobia,” an irrational fear of guns.

Such resounding defenses of the Second Amendment are music to the ears of champions of gun rights. They are also what will be, if not exactly demanded, then strongly encouraged, of any judge a Republican president appoints in the future. In other words, a litmus test.

The Cavalry

These ringing endorsements of the Second Amendment will also be music to the ears of Clarence Thomas. The now-senior justice has been growing increasingly restive and exasperated at his brethren’s reluctance to trudge back into the Second Amendment thicket.

After seeing his colleagues spurn one gun-rights case after another, Thomas finally exploded this year when they refused to take up a challenge to a California law that subjects all gun buyers to a ten-day waiting period, even those who have already previously passed a background check.

The lower courts, he charged, were failing “to afford the Second Amendment the respect due an enumerated constitutional right.” His colleagues would never tolerate it

if a lower court treated another right so cavalierly. . . . But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.

But maybe not for much longer. Neil Gorsuch has joined Thomas’s protests against the refusal to take up the Second Amendment. Brett Kavanaugh, one imagines, will provide reinforcements. From there, they would need just one more vote to have the four needed for the Supreme Court to decide to review a case.

The end of the post-Heller moratorium on Second Amendment cases at the Supreme Court is thus in sight. Given the spate of gun-rights cases working their way through the federal courts, its demise is likely to occur sooner than later.

Many would like to force the issue, including members of the federal judiciary. As more of Trump’s appointees have the opportunity to opine on the Second Amendment, the likelier it is that a case will make it all the way up the chain. Especially with two Trump appointees at its end.

Those appointees will also set a standard by which the rest will be measured — not only Trump’s, but those of any future Republican president. There is a strong possibility that henceforth any softness or perceived weakness on the Second Amendment will be considered disqualifying for a Republican appointee to the federal bench.

A candidate’s views on the Second Amendment are therefore likely to play a determinative factor in whether he or she is nominated in the first place. Certainly this will be true for Republicans. There is no reason to think Democrats won’t follow suit.

In a 2016 poll, 72 percent of voters rated gun policy a “very important” issue for their vote. The comparable figure for abortion was 45 percent. Perhaps the proper question isn’t whether the Second Amendment will become a litmus test, but what took it so long to turn into one.

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