SILVER SPRING, Md. — Supreme Court nominee Brett Kavanaugh says he recognizes that gun, drug and gang violence “has plagued all of us.” Still, he believes the Constitution limits how far government can go to restrict gun use to prevent crime.
As a federal appeals court judge, Kavanaugh made it clear in a 2011 dissent that he thinks Americans can keep most guns, even the AR-15 rifles used in some of the deadliest mass shootings.
Kavanaugh’s nomination by President Donald Trump has delighted Second Amendment advocates. Gun law supporters worry that his ascendancy to America’s highest court would make it harder to curb the proliferation of guns. Kavanaugh has the support of the National Rifle Association, which posted a photograph of Kavanaugh and Trump across the top of its website.
The Supreme Court has basically stayed away from major guns cases since its rulings in 2008 and 2010 declared a right to have a gun, at least in the home for the purpose of self-defence.
Gun rights advocates believe Kavanaugh interprets the Second Amendment right to bear arms more broadly than does Anthony Kennedy, the justice he would replace. As a first step, some legal experts expect Kavanaugh would be more likely to vote for the court to hear a case that could expand the right to gun ownership or curtail a gun control law.
Kavanaugh would be a “big improvement” over Kennedy, said Erich Pratt, executive director of Gun Owners of America. Kennedy sided with the majority in rulings in 2008 and 2010 overturning bans on handgun possession in the District of Columbia and Chicago, respectively, but some gun rights proponents believe he was a moderating influence.
“Kennedy tended to be all over the map” on the Second Amendment, Pratt said.
Former U.S. Rep. Gabby Giffords, the Arizona Democrat who was gravely wounded in a 2011 shooting at a constituent gathering, said in a written statement that Kavanaugh’s “dangerous views on the Second Amendment are far outside the mainstream of even conservative thought.”
She predicted that Kavanaugh would back the gun lobby’s agenda, “putting corporate interests before public safety.”
In his 2011 dissent in a case before the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh argued that the district’s ban on semi-automatic rifles and its gun registration requirement were unconstitutional.
That case is known as “Heller II” because it followed the Supreme Court’s 2008 decision in District of Columbia v. Heller striking down the city’s ban on handguns in the home.
Kavanaugh said the Supreme Court held that handguns are constitutionally protected “because they have not traditionally been banned and are in common use by law-abiding citizens.”
“Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right,” he wrote in a point rejected by the majority.
Critics contend Kavanaugh’s analysis is flawed because AR-15s were not around during the early days of the republic.
In his dissent, Kavanaugh wrote that he had lived and worked in Washington for most of his life and was “acutely aware of the gun, drug, and gang violence that has plagued all of us.”
He said few government responsibilities are more significant than fighting violent crime. “That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime,” he wrote.
He said it was unconstitutional to ban the most popular semi-automatic rifle, the AR-15, since it accounted for 5.5 per cent of firearms by 2007 and over 14 per cent of rifles produced in the U.S. for the domestic market.
He said semi-automatic rifles had been commercially available since at least 1903, “are quite common in the United States” and the Supreme Court said in a 1994 ruling that they “traditionally have been widely accepted as lawful possessions.”
Semi-automatic rifles were used in several mass shootings in recent years, including the February killing of 17 people at a Florida high school.
Kavanaugh rejected the majority’s reasoning that semi-automatic handguns were sufficient for self-defence, saying: “That’s a bit like saying books can be banned because people can always read newspapers.”
He belittled the description of the guns as “assault weapons,” saying that handguns could be called the “quintessential ‘assault weapons’ because they are used much more than other guns in violent crimes.
He was equally dismissive of Washington’s gun registration protocol, saying it had not been traditionally required in the nation and “remains highly unusual today.”
Still, Kavanaugh supported the ban on full automatics or machine-guns, reasoning that they “were developed for the battlefield and were never in widespread civilian use.”
In 2016, Kavanaugh dissented when two of his colleagues lifted an order blocking the city from enforcing a limit on issuing licenses to carry concealed firearms.
The Giffords Law Center to Prevent Gun Violence said the dissent shows Kavanaugh believes the district’s “good reason” requirement for concealed-carry permit applicants is unconstitutional. His views on that subject drew more scrutiny after the 9th U.S. Circuit Court of Appeals ruled 2-1 days ago in a Hawaii case that people have the right to openly carry guns in public for self-defence.
Phil Mendelson, a Democrat and chairman of the D.C. Council, said Kavanaugh’s dissent made clear that “his views on gun control are on the extreme side.” Councilmember Mary M. Cheh, a Democrat and professor of constitutional law at George Washington University, said she’s “worried about the shift to the right, for sure.”
Some legal experts believe Kavanaugh’s confirmation would make it more likely the court would hear another potentially groundbreaking Second Amendment case. Only four of nine justices need to vote in favour of reviewing a case.
UCLA law school professor Adam Winkler, author of “Gunfight: The Battle Over the Right to Bear Arms in America,” said Kavanaugh could become that crucial fourth vote because three justices — Neil Gorsuch, Clarence Thomas and Samuel Alito Jr. — all have voiced support for the court to take on Second Amendment cases.
Still, it takes five justices to win a case and Chief Justice John Roberts may turn out to be as reluctant as Kennedy to further define the law.
Georgia State University law professor Eric Segall said the court’s recent silence on gun laws has fueled speculation that neither the conservative justices nor their liberal colleagues knew how Kennedy would vote. Segall suspects the Supreme Court would be more likely to review a Second Amendment case if Kavanaugh is confirmed because there is less uncertainty about where he stands compared to Kennedy.
“The lower courts are just all over the place, reaching different results on different gun laws. The court has to provide guidance at some point, and it will,” Segall said.