Brett Kavanaugh & Gun Rights: What You Need to Know

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Getty Brett Kavanaugh

Brett Kavanaugh has been a staunch supporter of second amendment rights during his time as a federal judge. The issue of gun rights was expected to be a major topic during his Supreme Court confirmation hearing before the Senate Judiciary Committee.

Here’s what you need to know.

Kavanaugh Has Warned That Gun Regulations Are Just as Dangerous as Prohibiting Certain Types of Speech

brett kavanaugh

GettyUS Supreme Court nominee Brett Kavanaugh arrives on the first day of his confirmation hearing in front of the US Senate on Capitol Hill in Washington DC, on September 4, 2018. –

Judge Kavanaugh argues that the Constitution permits American civilians the right to own semi-automatic weapons. He defended that argument in a 2011 dissenting opinion while on the D.C. Circuit Court. The case was Heller v. District of Columbia.

In 2008, the Supreme Court had affirmed the right of citizens to keep weapons in their homes. Following that decision, the District approved the Firearms Registration Amendment Act of 2008. Gun owners were prohibited from registering assault rifles. The act also restricted the possession of magazines with a capacity of more than ten rounds of ammunition. The plaintiff, Dick Anthony Heller, argued these provisions violated the second amendment and took the issue to court.

The D.C. Circuit Court sided with the District of Columbia and upheld the ban on semi-automatic rifles. Kavanaugh disagreed with this decision. In his dissenting opinion, Kavanaugh wrote that the Second Amendment needs to be protected just as vigorously as free speech. He compared gun regulations to limits on free speech, and warned that any restrictions should be applied very narrowly. He wrote, “A ban on a class of arms is not an incidental regulation. It is equivalent to a ban on a category of speech.”

Kavanaugh Wrote in the 2011 Opinion That Gun Violence Should Not Factor Into a Judge’s Decision Concerning Gun Laws

Brett Kavanaugh Zina Bash

GettyKavanaugh and Bash pictured together in July 2018.

In the 2011 dissenting opinion, Kavanaugh argued that there was “no basis in Heller for drawing a constitutional distinction between semi-automatic handguns and semi- automatic rifles.” His point was that semi-automatic handguns are used far more frequently than rifles in criminal activities. Therefore, Kavanaugh argues, the argument that banning semi-automatic rifles is a safety measure does not add up.

“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 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. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller)…

As an initial matter, considering just the public safety rationale invoked by D.C., semi-automatic handguns are more dangerous as a class than semi-automatic rifles because handguns can be concealed. As was noted by the dissent in Heller, handguns “are the overwhelmingly favorite weapon of armed criminals.” 554 U.S. at 682 (Breyer, J., dissenting); see also FBI, CRIME IN THE UNITED STATES, 2009 tbl.20 (2010). So it would seem a bit backwards – at least from a public safety perspective – to interpret the Second Amendment to protect semi-automatic handguns but not semi-automatic rifles. Indeed, at oral argument, the excellent Solicitor General for D.C. acknowledged that “an argument could be made that the government interest in banning handguns is just as compelling, if not more compelling” than the government interest in banning semi-automatic rifles. Tr. of Oral Arg. at 35. He added that “the government’s interest may be more compelling with regard to handgun[s].” Id. at 36. Counsel’s frank acknowledgment highlights the serious hurdle that Heller erects in the way of D.C.’s attempt to ban semi-automatic rifles. Put simply, it would strain logic and common sense to conclude that the Second Amendment protects semi-automatic handguns but does not protect semi- automatic rifles.”

Kavanaugh wrapped up his dissent by stating that it is not the judicial system’s responsibility to consider public safety or policy when evaluating gun laws. Rather, a judge’s only job is to evaluate a case based on the Constitution.

“As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case.

So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. 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. 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.”

The Supreme Court ultimately took up this case as well and agreed with Judge Kavanaugh. The higher court struck down the D.C. ordinance restricting semi-automatic weapons.

Brett Kavanaugh’s Documented Stance on Gun Laws Earned Him the Full-Throated Support of the National Rifle Association

The National Rifle Association is pushing for the Senate to confirm Brett Kavanaugh to the Supreme Court. After President Trump announced Kavanaugh as his nominee, the NRA applauded the president for making “another outstanding choice.”

Executive director of the NRA Chris Cox issued a statement after the nomination. He wrote that “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.”

Cox also stated that the NRA would be “activating our members and tens of millions of supporters” to support Brett Kavanaugh amid the confirmation process.

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