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Brett Kavanaugh’s Concurrence Could Limit Court’s Extreme Gun Decision In Future Cases


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

The choice, written by Justice Clarence Thomas and joined by the opposite five conservative justices, found laws like Recent York’s 100-year-old concealed carry law requiring people to point out proof of the necessity of a firearm for self-defense unconstitutional. Thomas’ decision also limits the style by which courts may determine whether a gun control law is constitutional solely if “the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

But Justice Brett Kavanaugh also wrote a concurrence, joined by Chief Justice John Roberts, that appears to suggest some limits on the bulk opinion.

Kavanaugh and Thomas wrote “individually to underscore two details concerning the limits of the Court’s decision,” in keeping with the concurrence.

The primary limit on the choice is that the ruling striking down Recent York state’s concealed carry permitting law only applies to the six other states with similar “may issue” laws.

“[T]he Court’s decision doesn’t prohibit States from imposing licensing requirements for carrying a handgun for self-defense,” Kavanaugh writes.

What the choice doesn’t prohibit, in keeping with Kavanaugh, are “shall issue” laws that only require a background check or firearms safety training to acquire a concealed carry permit slightly than Recent York’s much more restrictive permitting law.

That is fairly much like the language in Thomas’ majority opinion. The principal difference is that Thomas includes in a footnote the potential for striking down elements of “shall issue” laws in the event that they have provisions which are “put towards abusive ends.”

“[B]ecause any permitting scheme could be put toward abusive ends, we don’t rule out constitutional challenges to shall-issue regimes where, for instance, lengthy wait times in processing license applications or exorbitant fees deny abnormal residents their right to public carry,” the footnote states.

Supreme Court Chief Justice John Roberts, right, and Associate Justice Brett Kavanaugh, left, issued a concurrence in a key gun rights case that stated limits to the bulk opinion they joined.

Kavanaugh’s concurrence is more firm in its assertion that “shall issue” states are on sound constitutional ground.

The second limit in Kavanaugh’s concurrence is a reiteration of the statement within the 2008 decision in Heller v. District of Columbia, which found a person right to bear arms within the Structure’s Second Amendment, that the choice was “neither a regulatory straightjacket nor a regulatory blank check.” States and the federal government could still adopt some restrictions on firearms.

Kavanaugh features a large block quote from the Heller decision to underscore that almost all decision had not stripped the power of the federal government to control guns in every manner. Those regulations mentioned as permissible include “possession of firearms by felons and the mentally in poor health, or laws forbidding the carrying of firearms in sensitive places resembling schools and government buildings, or laws imposing conditions and qualifications on the business sale of arms.” But that list is just not “exhaustive,” meaning others could exist.

The bulk opinion stays the controlling opinion on this case. That implies that its findings are actually the law. However the concurrence could still influence lower courts because it bears the hallmarks of a “pivotal concurrence.”

A pivotal concurrence is “when there may be a majority opinion, a number of judges concur in the bulk opinion but additionally writes individually, and that judge’s vote is numerically obligatory to present the bulk opinion enough votes to grow to be binding precedent,” in keeping with a law review paper by lawyers Thomas Bennett, Barry Friedman, Andrew Martin and Susan Navarro Smelcer.

“The opinion is ‘pivotal’ within the sense that without the votes of the pivotally concurring Justices, there can be no majority opinion,” the paper continues.

Kavanaugh’s concurrence meets these criteria and that’s what makes it notable.

“In case you stay up for the following case — the one about another state’s gun licensing regime — then you’ve got to fret about whether you possibly can count on the votes of Kavanaugh and Roberts,” Bennett, considered one of the authors of the paper, said. “And if that’s your perspective, then you’ve got to pay really close attention to what they are saying of their concurrence.”

Since there is no such thing as a sense of why Kavanaugh and Roberts felt the necessity to lay down these markers, it is just not clear how this might alter future outcomes.

Was this to point that Kavanaugh and Roberts wouldn’t go so far as the opposite 4 conservative justices wish to? Was it a public relations decision to make the bulk decision less distasteful to a public that supports further gun control than currently exists? Or something else?

Either way, Harvard Law professor Noah Feldman said in a Bloomberg column, “Kavanaugh’s insistence that some gun regulation stays permissible tells you quite a bit about how far Thomas’s opinion went.”

Thomas’ limitation of all future court review of gun laws to historical analogues threatens to upend so many existing gun laws and people currently debated in Congress that lack historical analogues, like red flag laws and bans on gun ownership for domestic abusers.

“It’s true that’s going to be a serious issue of uncertainty going forward,” Bennett said. “Exactly how this historical methodology that almost all sets out matters for the panoply of gun regulations in all 50 states. The stress will probably be the one between the bulk and the Kavanaugh and Roberts view.”

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