On the evening of Monday, July 9, President Donald Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the United States Supreme Court. Provided he is confirmed by the Senate, what are the gun rights implications of a Justice Kavanaugh?
Brett Kavanaugh’s Dissent
In a 2011 case known as Heller v. District of Columbia, or Heller II, a three-judge panel upheld District of Columbia’s ban on so-called “assault weapons” and “high capacity” magazines, as well as the district’s gun registration requirement. As Reason.com notes, Judge Kavanaugh wrote a lengthy dissent disagreeing with the majority opinion. Here is a key excerpt from that dissent, regarding semi-automatic rifles:
In Heller, 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 semiautomatic 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, semiautomatic 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. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)
In his dissent, Kavanaugh also took aim at D.C.’s registration requirement.
D.C.’s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, “longstanding” gun regulations in the United States. Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory recordkeeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual. Under Heller’s history- and tradition-based test, D.C.’s registration requirement is therefore unconstitutional.
Furthermore, Kavanaugh wrote in his dissent that “gun bans and regulations” should be “analyzed based on the Second Amendment’s text, history, and tradition.” He does not think judges should “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.”
NRA and NSSF Statements
In short, based on this dissent, it would appear that gun owners have a friend in Brett Kavanaugh. Indeed, both the NRA and NSSF have issued statements supporting his nomination.
“President Trump has made another outstanding choice in nominating Brett Kavanaugh for the U.S. Supreme Court. He has an impressive record that demonstrates his strong support for the Second Amendment,” said Chris Cox, Executive Director of the NRA-ILA. “We urge the Senate to swiftly confirm Judge Kavanaugh to the U.S. Supreme Court, just as it confirmed him to the U.S. Court of Appeals for the District of Columbia Circuit.”
“We are pleased to lend our support to President Trump’s nomination of Judge Kavanaugh to the Supreme Court and urge the Senate to approve his nomination before the next term begins on the first Monday in October,” said Lawrence Keane, NSSF senior vice president and general counsel. “We are confident that Judge Kavanaugh will serve our nation with distinction as an Associate Justice of our nation’s highest court and that he will make decisions that will serve to protect the Second Amendment and other Constitutionally guaranteed rights of law-abiding Americans.”