What the 9-0 SCOTUS Decision in S&W v. Mexico Means for Assault Weapons Bans

Last week, gun owners had a mixed week at the U.S. Supreme Court with the court denying cert in Snope vs Brown, the Maryland "assault weapons" ban case as well as Ocean State Tactical vs. Rhode Island, a challenge to the state's standard capacity magazine ban, but issuing a unanimous decision shooting down Mexico's lawsuit against U.S. firearms manufacturers. Mark Smith, a constitutional attorney who hosts the 4 Boxes Diner Podcast on YouTube Tube broke down the decision and the implications it has for a positive ruling in the future related to so called assault weapons bans. Smith notes that this opinion was written by one of the most liberal justices on the Court so it is a big deal that it ws unanimous and there is some nuggets that are good for gun owners looking for a positive ruling on so called "assault weapons".

Judge Kavanaugh's Confirmation Hearing Addresses Second Amendment

The New York Times has the story here.

When Senator Diane Feinstein asked Kavanaugh about his opinion in what is known as Heller 2 related to the ban on so-called "assault weapons" in DC, the exchange went like this:

Judge Kavanaugh expressed dismay about gun violence. But he defended a robust view of Second Amendment rights.

He was asked about his 2011 dissent in a case that upheld a ban in Washington on so-called assault weapons. The case was a sequel to District of Columbia v. Heller, the 2008 Supreme Court decision that established a constitutional right to own handguns for self-defense in the home, striking down an earlier Washington law.

The majority in the appeals court ruled that the later ban was constitutional. On Wednesday, Judge Kavanaugh explained that he dissented because Justice Antonin Scalia’s majority opinion in the 2008 decision required it.

He acknowledged that Justice Scalia had said that many gun control laws were unaffected by the 2008 ruling. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Judge Kavanaugh also said that the 2008 decision allowed machine guns to be prohibited, along with “dangerous and unusual weapons.” But he said semiautomatic weapons presented a different question.

“Most handguns are semiautomatic — something not everyone appreciates,” Judge Kavanaugh said on Wednesday. Similarly, he said, “semiautomatic rifles are widely possessed in the United States.”

“I have to follow the precedent of the Supreme Court as it’s written, and that’s what I tried to do in that case,” he said.

Senator Dianne Feinstein, Democrat of California, asked Judge Kavanaugh about the practical impact of his position in light of recent school shootings. He responded that school officials have taken steps to protect students.

“Senator,” he said, “of course the violence in the schools is something we all detest and want to do something about, and there are lots of efforts, I know, underway to make schools safer. I know at my girls’ school they do a lot of things now that are different than they did just a few years ago in terms of trying to harden the school and make it safer for everyone.”

“But as a judge my job, as I saw it,” he said, “was to follow the Second Amendment opinion of the Supreme Court whether I agreed with it or disagreed with it.”

Independence Institute Director of Research, Dave Kopel, has written that no nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as Brett Kavanaugh. The fact that President Trump nominated someone with such a detailed record on the issue says a lot in a time when most Presidents try to avoid controversy in their nominations.  Candidate Trump promised to protect our Second Amendment rights as President.  So far, he appears to have nominated two Supreme Court Justices that are in line with the late Justice Antonin Scalia on the issue.

U.S. Supreme Court Continues to Undermine Heller Decision

On Monday, the U.S. Supreme Court failed to take a case brought by the Calguns Foundation and the Second Amendment Foundation challenging a decision by Alameda, a California county that includes Oakland and other east bay cities, to enact a zoning law so onerous it effectively bans gun stores.   By failing to hear the case, the court essentially tells Californians that they have no right to buy guns.  Reason.com has more:

At least Monday's decision serves one useful purpose: It exposes the federal judiciary's willingness to elevate some constitutional rights over others.

If a city enacted zoning laws that effectively outlawed abortion clinics, and a federal appeals court had permitted it, the Supreme Court would have stepped in a heartbeat later. Under precedents going back to Maher v. Roe (1977), any law representing "direct state interference" with abortion is evaluated using strict scrutiny, the most exacting standard of legal review. Few such laws survive. (The 9th Circuit did not apply strict scrutiny to Alameda's law.)

In today's California, even adult movie theaters enjoy greater legal protections than gun stores. In a 1986 decision, the Supreme Court said the First Amendment allows municipalities to restrict such theaters (apparently they were a thing before the Internet) only if zoning laws provide a "reasonable opportunity to open and operate an adult theater within the city."

The U.S. Supreme court has not taken any meaningful Second Amendment cases since McDonald.  There currently are not four justices that are willing to vote in favor of hearing cases on the issue.  This is possibly because one or more of the remaining four that voted in the majority in Heller and McDonald are unsure whether they have five votes to find in favor of overruling a gun control law that comes before them.  No one really knows, but what we do know is Justices Thomas, Gorsuch and Alito have expressed frustration that this fundamental right becomes more and more marginalized with each case that is turned down.

The perils of this reverberate across the nation.  As cases like Maryland's so-called "assault weapons" ban, New Jersey's and Maryland's may-issue concealed carry law, and California's numerous onerous gun control laws continue to survive because SCOTUS will not hear them, the gun ban lobby will use such laws to craft legislation in other states.  Virginia is ever so close to turning anti-gun.  All it will take is to flip one seat in each house of the General Assembly for us to turn into California or New Jersey over night.

Was Heller and McDonald the Best We Could Get Out of SCOTUS

Sebastian writes on the blog Shall Not Be Questioned that it's possible we currently only have two strong votes for the Second Amendment on the Supreme Court:

...I think we have two real votes for a meaningful Second Amendment on the court: Thomas and Alito. Scalia was the third, but he’s gone now. I didn’t think there was anything radical about the Alito and Thomas concurring opinion in the Stun Gun Case, yet it’s interesting that neither Kennedy nor Roberts joined it. My perception, I hope I’m wrong but fear I’m right, is that the reason there’s been no certiorari granted on any of the gun cases is because the Heller majority had two weak links. Heller and McDonald may very well be the best Scalia could extract from his colleagues who formed the five justice majority in those cases.

I'm more confident each day that the GOP majority in the senate is going to make sure Obama's nomination to replace Scalia goes nowhere.  The fact that the senators with the toughest re-election campaigns this year seem to be holding firm leads me to believe they aren't getting much pressure back home to confirm the nominee.  If things hold as they are now however, I'm with Sebastian that things don't look good no matter whether the next President is Clinton or Trump getting a good replacement for Scalia.