Supreme Court Justice Anthony Kennedy in Middle of Gun Debate


Recently, Supreme Court Justices Antonin Scalia and Elena Kagen found themselves on opposite ends of the decision over criminal penalties of people who lied about the intentions they had when buying weapons. While this debate was expected, the real focus was on Justice Anthony M. Kennedy who often finds himself as the swing vote in these matters.

In the case of Abramski vs. US, Kennedy joined the majority that upheld the federal law which makes it a crime to purchase guns at the directions of other parties, a practice known as “straw purchases”. Both Kagen and Scalia wrote the opinions of the majority and minority respectively.

Unlike the Heller case that the Supreme Court decided on six years ago, this particular one did not raise questions about an individual’s right to own a gun, an argument that Kennedy sided with during that previous case. However, despite that particular stand it has been difficult for liberals or conservatives to know exactly where Kennedy stands on many gun issues as they pertain to the second amendment.

Some have argued that Kennedy’s decision to side with the liberals of the court in the Abramski case signaled that he might take a very broad view of gun control laws. Adam Winkler, a UCLA law professor who has written about gun control laws in the past has noted Kennedy’s distinction for having things both ways. In the Heller case, Winkler cites that Kennedy was the one who insisted that the opinion which established the rights of individuals that own guns also allow for reasonable restrictions as well.

To Winkler, this means that the point of view Kennedy takes in future decisions by the Supreme Court over gun issues is certainly up in the air as he might rule on either side. It does seem from his previous positions on past cases that Kennedy is willing to go either way depending on the case at hand.

However, proponents of gun rights do not seem all that bothered by Kennedy’s stance on the Abramski case, despite their petitioning of the court to get rid of state restrictions, simply because the case itself was not all that important. They cite that the Abramski case had nothing to do with the second amendment, citing that both sides of the court focused on the ambiguous language of the law.

The actual case that was decided recently centered on Bruce James Abramski Jr. who was a former police officer in the state of Virginia. He purchased a Glock pistol for his uncle in Pennsylvania in hopes of obtaining a discount. Abramski stated that he was the one buying the gun despite the form which he signed that indicated otherwise. Abramski’s position was since both he and his uncle were eligible to purchase the gun that no law was broken.

Justice Kennedy sided with the liberals on the Supreme Court in this case and stated that such action would “virtually repeal” the core provisions of the law that Congress had passed. Justice Kagen cited that if a statute appears ambiguous in which case both sides agreed, that the court must interpret the intent of the law based on previous statutory context, history, structure and its purpose. That position does fall within the precedence of the Supreme Court in deciding upon other cases in which the law was found to be somewhat ambiguous.

Despite the decision on the Abramski case, the Supreme Court did establish a pattern with the previous Heller case and other cases over the past few years that have made clear the fundamental right of the individual to own firearms and that local and state authority must respect that right. This means that any local or state law, provision, rule or regulation must recognize the right of the individual to own a firearm and it cannot be unduly restricted by any gun control law.

There are those, such as Josh Blackman who is a constitutional law professor at South Texas College of Law who believe that the Supreme Court justices have not spoken clearly about the meaning of the right to actually own guns. Blackman’s view is based on what he feels is the court not settling the conflicting rulings of lower court cases that have resulted in the fundamental right settled in the Heller case to wither away.

Blackman notes that many of the most restrictive state laws on gun control, particularly those in New Jersey, New York and Maryland are still in force. In particular, he cites the Supreme Court’s decision not to review a federal law that restricts the sale of handguns from firearm dealers who are federally licensed to those who are 21 and older.

In another case, the Supreme Court did not review a law in Texas that allowed only those 21 and older to get a license to carry a weapon. In this circumstance, it was cited that many lower court rulings are going against the spirit and intention of the Heller case. By failing to review these cases, the Supreme Court is not living up to its decision six years ago.

However, as the legal director of the Brady Center to Prevent Gun Violence, Jonathan Lowy points out, the Supreme Court’s decision to not take up these lower court cases simply reinforces the notion that the Heller case renders unconstitutional bans on guns in general, but that reasonable restrictions may be allowed.

There has been a loosening of gun restrictions in certain states such as Georgia for example that recently passed a new gun rights law which was not only praised by the National Rifle Association, but also allowed for more people to own firearms. However, this all could be a reflection of the Supreme Court allowing states to choose the type of gun laws that they have under the Constitution of the United States.

However, that would be in contradiction to their decision with the Heller case which essentially stated that states cannot view the second amendment differently and that all individuals have a basic right to own guns.



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