In 2014, Texas Open Carry enthusiasts began wandering into fast-food joints and city squares, lugging their big guns and generally freaking people out. Their actions appeared so deranged that the National Rifle Association — yes, that National Rifle Association — declared their behavior “downright weird.”
The NRA promptly reversed course, however, recognizing that as the nation’s leading church of gun worship, it didn’t want to lose parishioners to more spiritually pure congregations. Texas soon moved on to battles over campus carry and other efforts to impose militant gun culture where it is unwanted.
The status of open carry was not resolved in District of Columbia v. Heller, the 2008 ruling written by Justice Antonin Scalia that established an individual right to firearms. But it’s widely assumed that “bearing” arms as an individual means carrying them. So Heller’s individual right eventually may require allowing either concealed or open carry — or both.
“This is one of the great unresolved issues in Second Amendment jurisprudence,” says UCLA law professor Adam Winkler, author of “Gun Fight,” a history of guns and the law.
The Supreme Court has been in no hurry to resolve it. After Heller, the court repeatedly declined to hear challenges to gun regulations, leaving gun-regulation advocates to believe they may have gotten the better of Scalia’s messy ruling.
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, wins Senate confirmation, he seems unlikely to follow suit. The gun movement soon may 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. 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 dissent in 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.
In the Circuit Court case, dubbed “Heller II” after the same plaintiff, Dick Anthony Heller, who had won the landmark Supreme Court case, Kavanaugh cited “no meaningful or persuasive” distinction between a semi-automatic pistol and a semi-automatic rifle. He went on to compare a ban on a class of arms, such as assault weapons, to “a ban on a category of speech.”
It takes a peculiarly willful blindness, in a land uniquely beset my gun massacres, to claim semi-automatic rifles and semi-automatic pistols are indistinguishable. There is perhaps no more eloquent refutation than the 58 dead and more than 800 injured at a Las Vegas concert last October. The killer chose rifles over pistols for a reason: superior lethality.
Furthermore, if no distinction exists, then a right to “bear” arms openly would seem to entail the right to openly parade an AR-15. And since an AR-15 is essentially not concealable, even a concealed-carry law would yield a similar result.
In 2014, parents in Forsyth County, Georgia, frantically stopped their kids’ baseball game after the appearance of an armed man in the park. The man, one parent told a local TV station, was “just walking around (saying) ‘See my gun? Look, I got a gun, and there’s nothing you can do about it.’”
The man was right. There was nothing they could do about it. Georgia has the kind of guns-everywhere laws that are premised on the fantasy that all citizens are responsible “good guys,” and that carrying around a semi-automatic weapon in a populous, civilized society is nothing more than a righteous display of manhood.
But some guys are not always, or particularly, good. Such men may find that brandishing a gun — affrighting — is an effective way to assuage, temporarily, their own abiding insecurities. A man like that might decide to take his gun to a kids’ game. Just because.
Brett Kavanaugh will have his back.
Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week, a writer for Rolling Stone, a communications consultant and a political media strategist. The Tribune News Services distributes his commentary.