McKenna: Expect Supreme Court to be flooded with gun rights cases

Aug 16, 2018, 7:57 AM
gun rights...
President Donald Trump's Supreme Court nominee, Judge Brett Kavanaugh Aug. 7, 2018. (AP Photo/J. Scott Applewhite)
(AP Photo/J. Scott Applewhite)

Former Washington State Attorney General Rob McKenna recalls his law school professor, Frank Easterbrook, when considering the potential changes at the United States Supreme Court — changes which could not only shift the court more Conservative, but a rather particular brand of right wing.

RELATED: What does “safe storage” mean under Seattle’s gun regulations?

Easterbrook sits on the Seventh Circuit Court of Appeals.

“He wrote an opinion upholding the City of Highland Park’s ban on rapid firing semiautomatic rifles and large capacity magazines, writing that judges should be reluctant to second guess communities on how to protect the public safety,” McKenna told KIRO Radio’s Dave Ross. “It’s judicial activism in his view, which Conservatives don’t like — to go in and second guess the policy determination of a legislative body. But on the other hand Judge Kavanaugh, and at least one Supreme Court Justice, Clarence Thomas, believe that the Second Amendment gets short shrift compared to other constitutionally enshrined rights …. so there is a split among Conservative judges and it will be interesting to see if that will be part of the conversation as Judge Brett Kavanaugh moves forward through his confirmation hearings.”

There is a range of cases that never opted to go all the way to the United States Supreme Court before because of the justices and the way they leaned politically. But President Trump has an opportunity to weight the court with even more Conservative judges and that may change things. Second Amendment cases are among the issues anticipated to be aimed at the court in the near future.

Judge Kavanaugh is expected to replace Justice Anthony Kennedy, who is retiring. Kennedy leans Conservative and was appointed by President Ronald Reagan. Kavanaugh may lean further than him. It shows a split in the Conservative community and how some judges approach issues like gun control.

“Justice Kennedy is thought to be one of the justices who is not eager to hear challenges to gun control measures,” McKenna said.

McKenna said there “is something interesting about Judge Kavanaugh, and really his generation of Conservative jurists, who are more judicially active, or want to be more judicially active in striking down local gun control laws than older Conservatives like Reagan appointees.”

One example would be the ban in Maryland on semiautomatic rifles and high capacity magazines. The Fourth Circuit Court has upheld that ban, but opposition could take the case up again and challenge it in the Supreme Court. Another example would be California’s 10-day waiting period when selling arms. That regulation was upheld by the Ninth Circuit Court.

Gun rights, Washington, and the Supreme Court

The Supreme Court change  comes as various gun rights lawsuits are being waged around Western Washington. Safe storage laws have been passed, or are being considered, in Seattle, Mukilteo, and Edmonds. King County has a “package” of firearm regulations currently up for a vote. One county proposal would require gun stores to post warning signs about the dangers of guns with contact information for crisis lines.

Gun rights groups such as the NRA or the Second Amendment Foundation have filed lawsuits following many of the approved regulations. But such lawsuits haven’t always worked out for firearm proponents. One lawsuit over Seattle’s gun tax went to the state Supreme Court where it was upheld.

With that in mind, Kavanaugh’s stances on gun rights will likely be a point of contention as he goes through confirmation hearings, which is fair game, according to McKenna.

RELATED: Most Washington gun owners do not safely store firearms

“Because your overall ideology, your judicial philosophy is fair topic for conversation,” McKenna said. “And when it comes to the Second Amendment, everyone keeps coming back to one opinion that Judge Kavanaugh wrote. He wrote an opinion dissenting from the DC Circuit Court of Appeals decision to uphold the District of Columbia’s ban on some types of semiautomatic rifles. He said there is no difference between a semiautomatic rifle and a semiautomatic handgun — which is allowed in DC — under the Constitution. And banning an entire category of weapon is comparable to banning an entire category of speech under the First Amendment.”

“Here he is comparing the Second Amendment to the First Amendment, which is pretty striking because in the mind of a lot of judges, they seem to think that not all rights under the Constitution are created equal.”

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McKenna: Expect Supreme Court to be flooded with gun rights cases