Supreme Court nominee Brett Kavanaugh’s nomination highlights a major difference between an earlier generation of legal conservatives, who emphasize judicial restraint, and today’s activist conservatives who say they are enforcing the original meaning of the Constitution and will use it to block liberal legislation from the states.
With the addition of Judge Brett Kavanaugh, the Supreme Court could have a conservative majority to strike down bans on semi-automatic weapons in California and other liberal states and to decree that law-abiding Americans have a right to carry a gun in public, the Los Angeles Times reports. The issue highlights a central difference between an earlier generation of legal conservatives, who emphasize judicial restraint, and today’s activist conservatives who say they are enforcing the original meaning of the Constitution and will use it to block liberal legislation from the states. Kavanaugh’s record puts him in the activist group. In one dissent, he argued the Constitution prohibits a state from banning so-called assault weapons. See also: Will a Shifting Supreme Court Change the Consensus on Common-Sense Gun Laws?
A decade ago, the court, in a 5-4 opinion written by the late Justice Antonin Scalia, ruled that the Second Amendment protected the right of individuals to have a gun for self-defense. The decision struck down a District of Columbia law that prohibited residents from keeping a handgun at home. Two years later, the court struck down a similarly strict ban from Chicago. Since then, the justices have refused to hear gun-rights cases. The court’s reticence indicated that Justice Anthony Kennedy and perhaps Chief Justice John Roberts were not ready to go further and to strike down more regulations on firearms. The court’s silence has not been for lack of opportunities. Gun-rights advocates have tried several times to overturn state restrictions on the sale of rapid-fire rifles and on carrying concealed guns. They argue that those types of gun control measures violate the Second Amendment. They have repeatedly lost in the lower courts, and so far, the high court has refused to hear their appeals — despite strong dissents from Justices Clarence Thomas, Scalia and by Justice Neil Gorsuch after he replaced Scalia.