The news that Justice Anthony Kennedy has retired from the Supreme Court is sending liberals and progressives into a panic. Kennedy has of course been the key swing vote in abortion and gay rights cases. Whether those cases will withstand a new Supreme Court with five core conservatives is a serious question. But there is another area of Supreme Court jurisprudence that may also be dramatically affected by Kennedy’s retirement: the Second Amendment.
The Supreme Court has only ruled in favor of an individual right to own guns in two decisions, and in neither one did Kennedy write his own opinion. He did, however, make up one of the five votes in both 2008’s D.C. v. Heller, and 2010’s McDonald v. City of Chicago. Both cases invalidated complete bans on possessing handguns in each city. The Supreme Court has not, however, returned to the Second Amendment since McDonald was decided, despite thousands of lower court cases wrestling with the balance between the right to keep and bear arms and public safety.
On the same day in 2014, the court refused to review three cases involving laws regulating the selling of guns to people across state lines as well as a Texas law prohibiting 18- to 20-year-olds from carrying guns in public. The justices have also declined to review cases upholding permitting procedures regulating guns in public in Maryland, New York and New Jersey, among many other laws and cases.
Justice Clarence Thomas has not been quiet about his anger over the court’s refusal to hear any new Second Amendment cases. In a dissent from the court’s refusal to hear a case challenging California’s 10-day waiting period for gun sales, he wrote that the Second Amendment is a “disfavored right” and the Supreme Court’s “constitutional orphan.” Furthermore, he said that the lower court’s sustaining of the waiting period was “symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.”
There has been a lot of speculation about why the five court conservatives, including Kennedy, have not reviewed any of the lower court cases upholding various gun restrictions. The most common theory is that neither the four conservatives other than Kennedy, nor the four liberals, knew how Kennedy was going to vote.
Adam Winkler, a UCLA law professor, and author of one of the most important books ever written on the Second Amendment, Gunfight: The Battle Over the Right to Bear Arms in America, speculated in 2014 that among the other justices that “there must be some concern about the way Kennedy is going to go” in future gun cases. Well, that concern is now moot.
President Donald Trump has not been quiet about his support for gun rights, the gun lobby and the National Rifle Association. There is little doubt that whomever he nominates will be fully supported by the NRA. That organization was positively giddy when Trump nominated Neil Gorsuch to the Supreme Court, and that is unlikely to be different with Kennedy’s replacement.
What this likely means is that we can expect the Supreme Court to start reviewing a few of the more important gun control cases now percolating in the lower courts. Whether the issue is the validity of bans on so-called assault rifles, the length of waiting periods before people can buy guns or requirements for people to receive concealed-carry permits, our nation’s highest court may well start imposing its will on the gun measures of all 50 states and many cities and towns.
Kennedy’s uncertain swing vote is simply no longer an obstacle. Whether another conservative justice, most likely Chief Justice John Roberts, will step in to allow these difficult and complex issues to be decided at the state and local levels is anyone’s guess.
Sadly, I wouldn’t bet on it.
Eric Segall is the Kathy and Lawrence Ashe professor of law at Georgia State University College of Law. His forthcoming book, Originalism as Faith, will be published in September.