He said he had taken an extraordinary step in trying to head off the decision. Five weeks before Justice Antonin Scalia circulated his draft opinion for the majority, Justice Stevens sent around a draft of what he called his probable dissent. He said he could not recall ever having done anything like that.
â€œI thought I should give it every effort to switch the case before it was too late,â€ he said.
The effort failed. But Justice Stevens wrote that he helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for â€œsome important changesâ€ to Justice Scaliaâ€™s opinion. A passage in the opinion, which Justice Scalia had plainly added to secure a fifth vote, said the decision â€œshould not be taken to cast doubtâ€ on many kinds of gun control laws.
As Dave notes, this is pretty strong evidence that Kennedy was the weak member of the coalition, and his replacement by Justice Kavanaugh may tip the balance. Of course, that assumes there was only one weak link, not two. But this is very encouraging. It’s clear that Stevens targeted Kennedy to flip, and when he wouldn’t he at least convinced him to water down the ruling. Indeed, those passages have been latched on by lower courts and gun control advocates to render Heller and McDonald largely meaningless.
This is very good news, because at some point the Republicans will be out and the Dems in, and Dems are still competitive in dozens of states with currently reasonable gun laws. We really do need strong court protections for the Second Amendment, and we’re not going to get them through Congress.