Most court watchers assumed that Justice Anthony Kennedy, who supported Heller, was one of the judges turning away gun cases. If Brett Kavanaugh, President Donald Trump's choice to replace Kennedy, is confirmed by the Senate, he seems unlikely to follow suit. The gun movement may soon have the votes needed to usher in a new era of laissez-faire gun laws.
Abortion rights are bound to occupy much of Kavanaugh's Senate confirmation hearings this week. But as a judge on the Court of Appeals for the District of Columbia Circuit, Kavanaugh staked a bold claim as a champion of the gun movement. His gun manifesto is a lengthy 2011 dissentin a case in which he was overruled by two other Republican-appointed judges.
The court's majority opinion in that case upheld Washington D.C.'s ban on semi-automatic firearms and its gun registration law. Kavanaugh dissented on both items, claiming the court could rely only on “text, history and tradition.” Those are dodgy standards for a famously ambiguous Second Amendment text, a vigorously disputed history of guns in America and a widely varied tradition of regulation. (As it happens, Heller has been credibly assailed on all counts, most notably from the right, as a product of both mangled history and misbegotten law.