Judge Kavanaugh and the Supreme Court's Second Amendment

Ever since declaring that handgun bans violate the Second Amendment a decade ago, the Supreme Court has refused to say which other gun control laws are constitutional and which aren't. But gun rights advocates are hoping Judge Brett Kavanaugh – if confirmed - would help push the court back into the fray.

In 2001, when Judge Brett Kavanaugh's colleagues on the D.C. Circuit Court of Appeals voted to uphold Washington, D.C.’s assault weapons ban, he dissented.

"As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional and may not be enforced," Judge Kavanaugh wrote.

But when the Supreme Court had the shot to decide the issue in 2015, it declined.

“The magic number on the court is five. It takes five to do anything,” said Josh Blackman, a professor at South Texas College of Law Houston.

And five justices, including the now-retiring Justice Anthony Kennedy, declared in 2008 that the Second Amendment protects an individual right to keep and bear arms. But since then, the court's conservative bloc has refused to consider challenges to bans on assault weapons, public carry, and purchase waiting periods.

“Justice [Samuel] Alito and Chief Justice [John] Roberts have had no opinion on those. But even if Kavanaugh's added to the court, I'm slightly more optimistic the court takes a Second Amendment case, but it's not fully clear to me,” said Professor Blackman. “The other thing to think about is that maybe [Chief] Justice Roberts and Justice Alito are interested in the Second Amendment, but the hold-up was Justice Kennedy.”

Judge Kavanaugh, gun rights advocates say, can be counted on.

“I really consider Kavanaugh a friend of all the bill of rights provisions, I've studied other opinions of his, so yes, he would be a friend of the Second Amendment,” said Stephen Halbrook, a lawyer and Senior Fellow at the Independent Institute.

Still, with gun control advocates mobilized following February's deadly mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, the court may instead take aim at more modest measures, like one that may be headed to the justices from New York City this fall.

The issue, says Halbrook, is “when you have a permit for a handgun, whether you should be able to carry your handgun to a shooting range outside the City of New York, or take it to, for example, a home in upstate New York,” both of which the City largely forbids.