President Trump announced last night his nominee to replace Justice Anthony Kennedy on the United States Supreme Court, galvanizing both pro- and anti-gun groups to support or oppose Trump’s pick, respectively.
Brett Kavanaugh, a George W. Bush-era judge, has served since 2006 on the United States Court of Appeals for the District of Columbia Circuit. Among Trump’s three SCOTUS finalists, Kavanaugh has the longest record on gun rights, and it’s given the Second Amendment Foundation (SAF) and the National Rifle Association (NRA) cause to rejoice.
At the top of the list is the possibility that the Court might finally consider the gun-rights cases it has largely ignored since the landmark Heller decision in 2008.
“We’re encouraged by this nomination,” said SAF founder and Executive Vice President Alan M. Gottlieb, “because by adding Judge Kavanaugh, we might see the high court become more willing to accept and rule on important Second Amendment issues, such as right-to-carry.”
Chis W. Cox, Executive Director of the NRA-ILA echoed Gottlieb’s statement and referenced Kavanaugh’s strong stance on gun rights.
“President Trump has made another outstanding choice in nominating Brett Kavanaugh for the U.S. Supreme Court,” he said. “Judge Kavanaugh has demonstrated his clear belief that the Constitution should be applied as the Framers intended. To that end, he has supported the fundamental, individual right to self-defense embraced by Justice Scalia in the historic Heller decision.”
On the other end of the spectrum, President of Everytown for Gun Safety John Feinblatt blasted Trump’s nominee as “dangerous.”
“President Trump vowed he’d never let the NRA down, and with the Kavanaugh pick, he chose someone whose judicial record demonstrates a dangerous view of the Second Amendment that elevates gun rights above public safety,” Feinblatt said in an email to Everytown supporters. “We oppose this nomination and urge the Senate to vote it down.”
The reactions from the two sides make sense, given Kavanaugh’s stance on the Second Amendment. Most point to Kavanaugh’s dissenting opinion in what has become known as “Heller II,” a decision by the D.C. Court of Appeals that upheld the district’s ban on “assault weapons” and “large capacity magazines.”
Kavanaugh disagreed with the majority, penning an opinion that interpreted the Second Amendment according to “text, history, and tradition” (beginning on page 46).
“Gun bans and regulations,” he said, should “be analyzed based on the Second Amendment’s text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances…” Judges should not “re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right.”
He concluded in Heller II that “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.”
The constitutionality of the district’s gun registration requirement, he said, is equally dubious.
“Registration of all lawfully possessed guns—as distinct from licensing of gun owners or mandatory record-keeping by gun sellers—has not traditionally been required in the United States and even today remains highly unusual.”
While Kavanaugh appears to be a strong supporter of the Second Amendment, David Kopel at Reason Magazine points out that his “text, tradition, and history” standard does allow for gun control measures that have been historically practiced in the United States.
“Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny,” Kavanaugh also noted in Heller II. “After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller.”
Kavanaugh also voiced personal support for policies that restrict gun ownership and reduce crime, though he ultimately affirms his duty to interpret the Constitution without regard for personal bias.
“If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind,” he said. “But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy.”
Trump’s choice all but guarantees a pitched battle in the Senate. Senate Majority Leader Mitch McConnell has vowed to confirm the President’s nominee before the November elections, while Senate Democratic leader Chuck Schumer declared, “I will oppose Judge Kavanaugh’s nomination with everything I have.”