While the nation overwhelmingly supports stricter gun laws, not so the Supreme Court, especially since Justice Brett Kavanaugh’s confirmation last September seals the fifth vote necessary to expand Second Amendment Rights.
The Court has avoided gun rights cases since it issued a pair of landmark decisions, District of Columbia v. Heller in 2008, ruling that framers of the Constitution “had intended the Amendment to confer an individual right to bear arms,” the New Yorker’s Jeffrey Toobin reported this week, following the mass shootings last weekend.
The New Yorker’s Amy Davidson Sorkin wrote in January–after the Supreme Court agreed to hear a National Rifle Association challenge to a New York state law, potentially striking down gun laws nationwide–that Scalia’s 5-4 Heller decision (supported by Justices John Roberts, Clarence Thomas and Samuel Alito) “upended the way that generations of judges had read the Second Amendment, by recognizing a fundamental, individual right to bear arms, unconnected to a ‘well-regulated militia.’
McDonald v. City of Chicago in 2010 confirmed that due to the Fourteenth Amendment’s equal protection clause Heller applied to state and local gun laws, as well as Federal legislation.
Semi-Automatic Rifles Should be Exempt from Restrictions, Kavanaugh Wrote
“Still, Sorkin reports, “both decisions leave room for some basic, long-standing restrictions on guns, such as those that prevent violent felons from buying them.”
“Kavanaugh, though, in the wake of Heller, appears ready to toss out as many restrictions as he can.
“As an appeals court judge, he wrote in a 2011 dissent, that the District of Columbia should not be allowed to ban semi-automatic assault rifles, largely because they were ‘in common use.’
Pandering to NRA gun lobbyists, who congratulated him on his appointment, “Kavanaugh added that asking people to register their guns is unconstitutional,” Sorkin writes.
Fearing the Worst, New York Loosens Firearm Regulations
In July, New York dropped its strict gun carry laws and asked the Court to drop its case, arguing it was moot since, starting on July 21, New York agreed to let owners carry their guns to their second homes and ranges outside the city.
The National Rifle Association’s counsel, Kirkland & Ellis’ Paul Clement, refused to drop the case.
Sorkin writes that while buying a gun in New York is difficult, before July, New York gun owners could get a “premises license, allowing an owner to have a handgun in his or her home but also, under a city regulation that has been in force since 2001, requires that the owners keep them at home, unless they take them unloaded and locked to one of the shooting ranges in the city which has certification from the NYPD.
Crime rates in New York have plunged in recent decades, Sorkin writes. The number of shootings is the lowest it has been in 25 years.
“An overriding issue at stake, then,” she writes, “is whether the Court will decide that the right to ‘bear’ arms is tantamount to a broad right to travel with them.
“Justice Clarence Thomas, has said, with regard to an earlier case, that he says it is.
Sorkin concludes, “the NRA has been waiting for Kavanaugh, or someone like him. Their brief was submitted on the day his confirmation hearings began.”
Remington Asks Court to Challenge Sandy Hook Victims
In another gun case, Remington Arms asked the Roberts Court earlier to overturn the Connecticut Supreme Court decision to allow one Sandy Hook survivor and nine families to sue Remington after Adam Lanza used a Remington Bushmaster XM15-e2s semiautomatic weapon in the mass shooting.
Remington’s inflammatory slogan, “Forces of opposition, bow down. You are single-handedly outnumbered”, incited the mass shooting, Sandy Hook victims charge.
The case is currently stayed, pending a Supreme Court review.
Gun Manufacturers Immune from Crimes
The Connecticut Supreme Court’s decision, granting plaintiffs the right to sue gun makers, clearly violates a 2005 Federal Law, passed under George W. Bush, called the Protection of Lawful Commerce in Arms Act.
The law grants “gun manufacturers and dealers immunity from the vast majority of lawsuits that could be brought as a result of crimes committed with their firearms,” writes Politico’s Renato Mariotti.
Appeals courts in other states, including New York, California and Federal courts in D.C. and Colorado—along with state courts in Alaska, Illinois and Missouri—also hold that the law bars suits against the gun industry, Mariotti writes.
However, gun manufacturers face new suits, including one from the victim of the Las Vegas massacre.
“While victims continue to try to bring new suits, the immunity law makes it extraordinarily difficult for them to obtain relief,” Mariotti writes.
Smith & Wesson Settlement Could Have Stopped Dayton Shooting
She notes that “prior to the bill’s enactment in 1995, President Bill Clinton negotiated a settlement with gun manufacturer Smith & Wesson, under which the manufacturer agreed not to manufacture firearms that accepted large-capacity magazines like the 100-round magazine used by gunman in the Dayton, Ohio shooting.”
Smith & Wesson also agreed not to sell firearms to dealers unless they agreed not to sell large-capacity ammunition magazines or semiautomatic assault weapons and to refrain from selling to gun shows unless every seller at the gun shows conducted background checks.
“At the time, this looked like a good deal for Smith & Wesson. Gun manufacturers faced suits from the city of Chicago (eventually dismissed in 2004) and other state and federal lawsuits.”
Politico’s Marrioti concludes, “while Congress debates modest reforms that Senate Republicans continue to block, the most effective path to reform is to repeal the special-interest bill giving immunity to gun manufacturers and dealers.”
“If gun victims don’t have a good case, they’ll lose in court. But the threat of lawsuits by gun victims could generate reforms that would far outpace Congressional inaction.”