July 18, 2018

Judge Brett Kavanaugh: A So-So Gun Guy?

Last week, President Donald J. Trump nominated Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s announced retirement on July 19.

From the standpoint of gunowners' rights, will Judge Kavanaugh be "fer us or agin’ us" if he's elevated to the Supreme Court? Or, said another way, will he be a "good guy on guns” or just a so-so one?

"Right now, nobody knows for sure how a 'Justice Kavanaugh' might rule on gunowner rights at the SCOTUS level," said Gun Tests Editor Todd Woodard. "But the tea leaves, the entrails, the penumbras suggest he strongly leans our way."

Important gun groups agree.

- “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 W. Cox, executive director, 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.”

- National Shooting Sports Foundation (NSSF) Senior Vice President and General Counsel Lawrence Keane said in a release, “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.”

- Alan M. Gottlieb, the Second Amendment Foundation's executive vice president, said, “We’re encouraged by this nomination 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."

- Gun Owners of America Executive Director Erich Pratt commented, “Gun Owners of America [GOA] is optimistic that Judge Brett Kavanaugh will be a huge improvement over the retiring Justice Anthony Kennedy on many constitutional issues, including the Second Amendment.

Woodard said the gun groups support Kavanaugh because of decisions he wrote during his tenure on the U.S. Court of Appeals. In particular, in 2011 he wrote a strong dissenting opinion in opposition to Washington, D.C.’s ban on commonly owned semi-automatic firearms and registration requirement.

Known as Heller II, the case arose from The District of Columbia v. Heller, in which the U.S. Supreme Court overturned Washington, D.C.’s ban on handguns in the home. The majority of the Court of Appeals upheld the assault-weapons ban in Heller II. Kavanaugh was one of two appeals court judges who disagreed.

“A ban on a class of arms is not an ‘incidental’ regulation,” Kavanaugh wrote in the 2011 dissenting opinion in Heller II. “It is equivalent to a ban on a category of speech.”

Gottlieb, with the Second Amendment Foundation, added, “We’re encouraged by this nomination 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.

"We know that the Court will face enormous challenges on other rights issues, but the right to keep and bear arms is a cornerstone of the Bill of Rights.... It is time for the court to examine the constitutionality of various state laws that restrict the right to carry, for example, and make arbitrary decisions about who can exercise that right. Our courts should be the place that we can trust to safeguard our rights and promote freedom.”

“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. ”

brett kavanaugh and trump

Photo courtesy of NRA-ILA

From right, President Donald Trump greets Judge Brett Kavanaugh and his family, daughters Elizabeth (black dress) and Margaret and wife Ashley. Judge Kavanaugh has served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2006, authoring more than 300 opinions, including 11 that have been affirmed by the Supreme Court. A graduate of Yale College and Yale Law School, Judge Kavanaugh clerked on the Supreme Court for Justice Kennedy.

GOA's Pratt added, “Initial reports suggest that Judge Kavanaugh deeply respects the Second Amendment, even though he was not the strongest of the finalists. Nevertheless, Judge Kavanaugh filed a pro-gun dissent in Heller II, arguing that Washington, DC’s ban on semi-automatic firearms was arbitrary and unlawful. In fact, his dissent was so well argued that GOA’s subsequent legal briefs have repeatedly held up his dissent as the model to follow.

"In another case," Pratt said, "Kavanaugh correctly interpreted the Firearm Owners Protection Act to find that a defendant could not be sentenced to 30 years in prison for use of a fully automatic firearm if he was unaware that the gun fired automatically.

"Kavanaugh also supported the prevailing opinion in the Citizens United case, which affirmed GOA’s voice in the political arena. GOA hopes that the Senate will confirm Kavanaugh - and that the Supreme Court will take up more Second Amendment cases, thus repealing the onerous and unconstitutional restrictions on the right to keep and bear arms that exist throughout the country.”

Woodard says another part of Judge Kavanaugh's Heller II dissent comes as something of a relief.

"So many politicians, lawyers, and celebrities don't know a fig about firearms function, yet they write unrealistic rules gun owners must follow," Woodard said. "Judge Kavanaugh at least gets the basics."

Kavanaugh wrote in that 2011 dissent that "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 semiautomatic handguns and semiautomatic rifles."

Woodard pointed out that as an appellate judge, Supreme Court precedent bound Kavanaugh. As a Supreme Court justice, his interpretation of the Second Amendment can set precedent other courts must follow.

"It's clear that Judge Kavanaugh is not a 2nd Amendment absolutist," Woodard said, "so he will not please people who believe that all gun control is impermissible. But it appears he also won't make the Second Amendment a second-class right. We'll take that until more reinforcements arrive."

To see more on Brett Kavanaugh's gun stance:

Mother Jones: Here’s How Kavanaugh Could Deal a Big Blow to Gun Control

CT Sen. Chris Murphy: Brett Kavanaugh is a true Second Amendment radical

United States Court of Appeals: Judge Kavanaugh dissent in Heller v. D.C. (2011, aka Heller II).

Reason.com: Judge Kavanaugh and the Second Amendment

Fox News: Kavanaugh brings clear reasoning to Second Amendment decisions

National Review: Judge Kavanaugh’s Record on Second Amendment/Gun Rights

Bloomberg: A Kavanaugh Supreme Court May Expand Gun Rights, Senators Say

Comments (4)

Mother Jones hates him, that's good news.

Posted by: jwash111 | July 20, 2018 5:20 AM    Report this comment

My preference for a Justice is one who has reading comprehension. The Founders were very explicit in Why the 2nd was added to the Bill of Rights and it had nothing to do with hunting and target shooting. In my day ,80 years ago, we not only read the Constitution and the Dof I but the signers(founders) papers and letters were also included as to intent. Ben Franklins words never rang more true than today about the question; Sir what have you given us? Madam! A constitutional Repuplic, IF you can keep it!

Posted by: Carl Casino | July 19, 2018 2:45 PM    Report this comment


You speculate that indications are that Mr. Kavanough "leans our way." I don't care if he lists to port or starboard

I would respectfully submit that we would be best served by a justice who constructs law properly regardless of any bias. Some people mistakenly believe that the role of a judge is to interpret law in a way that his decision results in the best outcome. Those judges and justices who do so determine the best outcome based on their bias. But a judge's role in constructing law is to determine what the law really means based on the meaning of the words and phrases at the time the law was passed. It is the job of the legislature, not justices, to fix bad laws.

Mr. Kavanough indicated that his personal views are not relevant to the proper interpretation of law. I regard this as a favorable indicator.

I'd prefer a justice who understands what "well regulated" and "militia" meant in 1791, than a pro-gun guy intent on legislating from the bench.


Jack Moisuk
Richardson, Texas

Posted by: Jack Moisuk | July 19, 2018 12:08 PM    Report this comment

Look, I'm a lawyer and I have to say, Kavanaugh is about the best you are likely to get. There's no guarantee how he will vote in the future, but at least in the past he seems willing to actually apply the test set out by the Supreme Court, which is whether a particular type of gun is in 'common use' by law abiding citizens. It is not his job, as an appellate judge, to make 'new' tests, but to apply the existing law, whether a type of gun "is in common use" to the question and to make a factual determination; are semi automatic weapons in common use? Well, yes they are, in fact they make up a majority of new handguns sold. Thus, they cannot be banned just because you don't like them. Too many judges simply ignore this test and decide that "assault weapons" [Yeah, I get there is no such thing] are military guns and come out with statements like ""The AR-15's present day popularity is not constitutionally material," . Which misses the point; yes, it is constitutionally material; if it is in 'common use' then it can't be banned. I'm very happy with Kavanaugh, I'd much rather have him than almost anyone else I can think of who would have a realistic chance of being nominated and confirmed.

Posted by: chilishotgun | July 19, 2018 10:21 AM    Report this comment

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