Skip to content
Brett Kavanaugh’s deal could limit extreme gun court ruling in future cases


The Supreme Court’s six-vote supermajority dramatically expanded gun rights in its decision striking down a law in New York state limiting who can receive a license to carry a concealed firearm in public on Thursday.

The ruling, written by Justice Clarence Thomas and joined by the five other conservative justices, found unconstitutional laws like New York’s 100-year-old Concealed Carry Law requiring people to prove they need to a firearm for self-defense. Thomas’ decision also limits how courts can determine whether a gun control law is constitutional only if “the regulation is consistent with the historic tradition of gun regulation in this country.”

But Justice Brett Kavanaugh also drafted an agreement, joined by Chief Justice John Roberts, that appears to suggest some limits to the majority opinion.

Kavanaugh and Thomas wrote “separately to highlight two important points about the limitations of the Court’s decision,” according to the agreement.

The first limitation on the decision is that the decision overturning New York State’s concealed carry law only applies to the six other states with similar “may issue” laws.

“[T]The Court’s decision does not prohibit states from imposing licensing requirements for carrying a handgun for self-defense,” Kavanaugh writes.

What the ruling does not prohibit, according to Kavanaugh, are “must enact” laws that only require a background check or firearms safety training to obtain a concealed carry permit rather than the New York’s much more restrictive licensing law.

This is quite similar to the language of Thomas’s majority opinion. The main difference is that Thomas includes in a footnote the possibility of repealing elements of “must issue” laws if they contain provisions “intended for abusive purposes”.

“[B]Because any permit system can be abused, we do not rule out constitutional challenges to schemes to be issued where, for example, long wait times in processing license applications or exorbitant fees deprive ordinary citizens of their right to public transportation,” the footnote states.

Supreme Court Chief Justice John Roberts, right, and Associate Justice Brett Kavanaugh, left, issued an agreement in a landmark gun rights case that indicated the limits of the majority opinion to which they joined.

The Kavanaugh Accord is firmer in its assertion that states “must issue” are based on solid constitutional foundations.

The second limitation on Kavanaugh’s agreement is a reiteration of the statement in the 2008 decision in Heller v. District of Columbia, which found an individual right to bear arms in the Constitution’s Second Amendment, said the ruling was “neither a regulatory straitjacket nor a regulation.” blank check.” States and the federal government could still enact some gun restrictions.

Kavanaugh includes a large block quote from the Heller decision to emphasize that the majority decision did not strip the government’s ability to regulate guns in any way. These regulations mentioned as permitted include “the possession of firearms by criminals and mentally ill persons, or laws prohibiting the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications for the commercial sale of arms”. But this list is not “exhaustive”, which means that others could exist.

The majority opinion remains the dominant opinion in this case. This means that its conclusions are now law. But the deal could still sway lower courts because it bears the hallmarks of a “pivotal deal”.

An essential agreement is “when there is a majority opinion, one or more judges agree with the majority opinion but also write separately, and that judge’s vote is numerically necessary to give the majority opinion sufficient votes to become a binding precedent”, according to a law journal article by lawyers Thomas Bennett, Barry Friedman, Andrew Martin and Susan Navarro Smelcer.

“The opinion is ‘pivotal’ in the sense that without the votes of the concurring judges, there would be no majority opinion”, continues the newspaper.

The Kavanaugh Accord meets these criteria and that is what makes it remarkable.

“If you’re looking forward to the next case — the one involving another state’s gun licensing regime — then you have to wonder if you can count on the votes of Kavanaugh and Roberts,” said Bennett, one of the authors of the article. . “And if that’s your view, then you have to be very careful what they say in their agreement.”

Since it’s unclear why Kavanaugh and Roberts felt the need to put these markers down, it’s unclear how it might affect future results.

Was it to indicate that Kavanaugh and Roberts would not go as far as the other four conservative justices want? Was it a public relations decision to make the majority decision less distasteful to a public that supports stronger gun control than currently exists? Or something else?

However, Harvard law professor Noah Feldman said in a Bloomberg column“Kavanaugh’s insistence that certain gun regulations remain permitted speaks volumes to the breadth of Thomas’s opinion.”

Thomas’ limitation of any future judicial review of gun laws to historical analogs threatens to upend so many existing gun laws and those currently being debated in Congress that lack historical analogs, such as the red flag and prohibition of owning firearms for domestic abusers.

“It’s true that this is going to be a major issue of uncertainty going forward,” Bennett said. “Exactly how this historic methodology that the majority defines matters to the panoply of gun regulations in all 50 states. The tension will be between the majority and the view of Kavanaugh and Roberts.



The Huffington Gt

Not all news on the site expresses the point of view of the site, but we transmit this news automatically and translate it through programmatic technology on the site and not from a human editor.