SCOTUS Nominee Brett Kavanaugh And The Second Amendment

Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee stands in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Alex Brandon)


Last night, President Trump announced his pick for Justice Kennedy’s seat on the Supreme Court. While much of the debate current centers around Roe vs. Wade, there are other issues to consider as well. For example, in this climate of anti-Second Amendment furor, how will that pick vote on matters pertaining to our right to keep and bear arms?

It seems that a Justice Kavanaugh might just be a good friend to have on the bench.

Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissentedfrom a 2011 decision in which a three-judge panel upheld the District of Columbia’s ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority’s use of “intermediate scrutiny,” saying an analysis “based on text, history, and tradition” is more consistent with the Supreme Court’s Second Amendment precedents.

The D.C. “assault weapon” ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. “The list appears to be haphazard,” Kavanaugh noted. “It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not.” In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.

“In Heller,” Kavanaugh noted, “the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller‘s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.”

Although Heller suggested that various “longstanding” gun restrictions would pass constitutional muster, Kavanaugh said, D.C.’s gun registration system does not qualify. “Because the vast majority of states have not traditionally required and even now do not require registration of lawfully possessed guns,” he wrote, “D.C.’s registration law—which is the strictest in the Nation and mandates registration of all guns—does not satisfy the history- and tradition-based test set forth in Heller.”

To be sure, these are all valid arguments that many pro-Second Amendment advocates make all the time. And let’s face it, if he opposes an assault weapon ban, then he’s probably not a fan of most other gun control ideas that get floated around.

I can’t help but wonder what would have happened if he’d already been on the bench since the Court recently kicked back a case challenging Maryland’s assault weapon ban, a case which could have had a massive impact throughout the nation. Perhaps with a more staunch supporter of the Second Amendment on the bench, the case would have been heard.

Unfortunately, Kavanaugh’s confirmation isn’t a done deal. While Republicans hold a majority in the Senate where the confirmation will take place, it’s a 51-49 majority. Additionally, Sen. John McCain is expected to not vote at all due to his cancer battle. That means the Republicans can’t afford to lose a single vote unless they can pick up a Democrat to counter it.

This should be an interesting confirmation to watch.