Brett Kavanaugh Is Itching to Expand the Second Amendment

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The Supreme Court dismissed a gun control case, but the conservative justices are ready for the next round./nfor a constitutional right to concealed carry.
By a 6–3 vote, the Supreme Court rejected the plaintiffs’ arguments on Monday in a
. The majority explained that, if the plaintiffs believe New York City’s replacement law is unconstitutional, they can go back to the lower courts and make their case. And although the plaintiffs
now
ask for damages, they made no such demand in their initial lawsuit. So they have to ask the lower courts for permission to add a damages claim.
That ruling handed a narrow win to gun safety activists, but it may be the shortest-lived triumph in Supreme Court history. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented in an opinion laying out his plans to expand the Second Amendment in a future case. Justice Brett Kavanaugh joined the majority but wrote separately to note that he agrees with Alito’s “general analysis” of the right to bear arms. Kavanaugh also wrote that he shares Alito’s “concern” that lower courts “may not be properly applying
Heller
and
McDonald
.” The court, Kavanaugh concluded, “should address that issue soon, perhaps in one of the several Second Amendment cases” currently sitting on the court’s doorstep.
There are
at least a dozen
gun rights cases pending before the Supreme Court. Several ask whether states can ban assault weapons or strictly limit concealed carry. The gun lobby has long sought to establish a constitutional right to purchase assault weapons and carry a concealed firearm in public places. While sitting on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh made it very clear that he will fight for these rights. He
argued
that courts should only uphold “gun regulations that are longstanding” and invalidate any restrictions that are not “sufficiently rooted in text, history, and tradition.” Applying this test, Kavanaugh wrote (in dissent) that the District of Columbia’s assault weapons ban is unconstitutional.
Alito, Thomas, and Gorsuch are also palpably eager to knock down
gun laws. In his
NYSRPA
dissent, Alito wrote that firearms regulations that did not exist in “the founding era” are likely unconstitutional today. Unless a gun law was “in force around the time of the adoption of the Second Amendment” in 1791, it’s probably invalid. “History provides no support for a restriction of this type,” he insisted, chastising the 2
nd
Circuit for upholding New York City’s now-dead restriction. “We are told that the mode of review in this case is representative of the way
Heller
has been treated in the lower courts,” Alito concluded. “If that is true, there is cause for concern.”
All four justices, in other words, want to wipe away any gun laws that depart from practices in 1791, when the Second Amendment was ratified. Under their approach, states could not ban