Yesterday, Justice Anthony Kennedy announced his retirement, effective July 31, from the U.S. Supreme Court. Justice Kennedy, who has served on the Supreme Court for almost three decades, is frequently cast as a crucial “swing vote” in controversial cases, meaning that he is perceived as being the fifth vote in narrow 5-4 decisions. As the so-called “swing vote,” Justice Kennedy has played a pivotal role in Second Amendment cases, joining the five-justice majority in District of Columbia v. Heller (2008) (which confirmed that the Second Amendment protects an individual’s right to keep and bear arms) and McDonald v. City of Chicago (2010) (which held that the Second Amendment applies to the states). With Justice Kennedy’s retirement, President Donald Trump will have his second opportunity to nominate a justice (Justice Neil Gorsuch was Trump’s first nominee), a nominee who will inevitably play a major role in future Second Amendment cases.
The Supreme Court has not issued a substantive decision in a case involving the Second Amendment since McDonald, despite the fact that the lower federal courts have been hostile to the individual right to keep and bear arms recognized in the Heller decision. Last year, Justice Clarence Thomas, joined by Justice Gorsuch, took the unusual step of issuing a written dissent when a majority of the justices chose not to accept an appeal from the Ninth Circuit Court of Appeals’ decision in Peruta v. California, which had upheld San Diego, California’s requirement for applicants to show good cause for the issuance of a concealed handgun permit. Justice Thomas wrote: “The Court’s decision to deny certiorari [i.e., to not take the appeal] in this case reflects a distressing trend: the treatment of the Second Amendment is a disfavored right.”
With his nominee to replace Justice Kennedy, President Trump will have an opportunity to nominate a justice that will treat the Second Amendment equally to the other amendments comprising the Bill of Rights, which will be critical to ensuring that Second Amendment rights are protected fairly.
