Justice Anthony M. Kennedy may be the middleman in the gun-rights debate

It was the Supreme Court’s two hunting buddies — Elena Kagan and Antonin Scalia — who squared off last week when the divided court upheld criminal penalties for people who lie about their true intentions when they buy guns.

But those who follow the court’s jurisprudence on gun control were more interested in what the decision said about a third justice, Anthony M. Kennedy.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

Kennedy joined the court’s liberals in Abramski v. U.S. to uphold the federal law that outlaws buying guns at the direction of others, known as “straw purchases.” As the senior justice in the majority, he chose Kagan to write the 5-to-4 opinion and answer the dissent of Scalia and the rest of the court’s conservatives.

The case did not raise questions about the individual right to gun ownership under the Second Amendment that the court, with Kennedy in the majority, recognized six years ago.

But some saw the decision as helping to explain the court’s steadfast refusal since then to take cases asking the justices to flesh out that right: Because neither conservatives nor liberals can be quite sure where Kennedy would come down on the issue.


Justice Anthony M. Kennedy is pictured as the nine members of the Supreme Court pose for a group photograph. (Bill O’Leary/The Washington Post)

“It does seem (the Abramski decision) could be a signal that Justice Kennedy is willing to read gun control laws broadly,” said Adam Winkler, a UCLA law professor who wrote “Gunfight: The Battle over the Right to Bear Arms in America.”

Winkler became convinced researching his book that it was Kennedy who insisted that the opinion establishing the individual gun ownership right, District of Columbia v. Heller, contain language that it was not calling into question reasonable restrictions on gun ownership.

“There must be some concern about the way Justice Kennedy is going to go” in future cases, Winkler said.

Gun rights proponents, including those who have petitioned the court to knock down state restrictions on gun ownership and the right to have a weapon outside the home, downplay last week’s decision.

“I don’t think it was a particularly important case,” said Alan Gura, one of the lawyers in the Heller case who has also filed some of the petitions the court has rejected since.

He notes that neither the majority opinion nor the dissent even mentioned the Second Amendment, focusing instead on the words of a statute that both sides acknowledged as a bit ambiguous.

The case involved Bruce James Abramski Jr., a former police officer in Virginia who bought a Glock handgun for his uncle in Pennsylvania, hoping to get a discount on the sale. Abramski swore he was the buyer of the gun, even though the form he signed made it clear that was not the case if he was purchasing the gun for someone else.

Because both he and his uncle were eligible to own guns, Abramski claimed he had not run afoul of the law.

Scalia and the dissenters agreed. But Kennedy sided with the court’s liberals, who said that could not be what Congress had intended.

Abramski’s reading would “virtually repeal” the core provisions of the law, Kagan wrote. When a statute seems ambiguous, she said, the court must interpret it “not in a vacuum, but with reference to the statutory context, ‘structure, history, and purpose,’ ” referring to court precedent.

If there are disagreements about the lesson from Abramski, there is no disputing the court’s pattern since Heller and a follow-up case two years later that made clear state and local governments must respect a fundamental right to gun ownership when passing gun-control laws.

“The justices seemingly have taken a vow of silence over the meaning of this fundamental right,” Josh Blackman, a constitutional-law professor at the South Texas College of Law, wrote in the American Spectator.

He said the court’s failure to take a case from sometimes conflicting rulings of lower courts amounts to “jurisdictional abdication of the Second Amendment,” which would allow the fundamental right the court found six years ago to “wither on the vine.”

The justices have declined to intervene in cases that upheld the most restrictive permitting procedures in states including Maryland, New York and New Jersey. The court was not enticed to review a federal law restricting the sale of handguns by federally licensed firearm dealers to those 21 and older.

It turned down a chance to review a Texas law allowing only those 21 and older to obtain a license to carry a weapon, despite a plea from veteran Supreme Court practitioner Paul D. Clement that lower courts were engaging in “massive resistance” to the Supreme Court’s landmark cases.

Jonathan Lowy, legal director of the Brady Center to Prevent Gun Violence, said the court’s decision to pass on the cases simply indicates that it “meant what it said” in Heller — that gun bans were unconstitutional but that reasonable restrictions are allowed.

Even as some courts have upheld restrictive laws, states have loosened restrictions. Georgia, for instance, recently passed an expansive gun-rights law praised by the National Rifle Association.

Perhaps this is what the Supreme Court — or one particular justice — had in mind: tight restrictions in states that want them, easy access in others.

“I would hope not,” Gura said, “because that was very emphatically rejected” when the justices — again 5 to 4, again with Kennedy in the majority — said the right to individual gun ownership applied to state and local government gun control efforts. “Constitutional rights don’t mean different things in different states.”

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