Second Amendment

Kavanaugh — A Strong Defender of Americans' 2A Rights

His impressive record on Second Amendment-related cases and his judicial philosophy should make conservatives rest easy.

Political Editors · Jul. 12, 2018

President Donald Trump’s Supreme Court nominee Brett Kavanaugh is a man who unreservedly holds that fidelity to the Constitution is a justice’s number one job. Irrespective of personal opinions, he reasons that as a judge, “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.”

In light of this view, three words best describe Brett Kavanaugh’s approach to determining whether or not a law meets the standard of constitutional consistency: “text, history and tradition.” Kavanaugh explained his perspective in light of the Court’s decisions on Heller and McDonald, writing:

In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in the two cases.

In my judgment, both D.C.‘s ban on semiautomatic rifles and its gun registration requirement are unconstitutional under Heller. In Heller, the Supreme Court held that handguns — the vast majority of which today are semiautomatic — 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. Semiautomatic rifles, like semiautomatic 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 semiautomatic rifles are. It follows from Heller’s protection of semiautomatic handguns that semiautomatic 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.)

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.

Kavanaugh also rejects the argument that the Second Amendment doesn’t address the technological development of modern firearms and is therefore only applicable to those firearms that existed at the time of its adoption. He notes that the principle the Second Amendment is based upon does not change even as technology advances:

When legislatures seek to address new weapons that have not traditionally existed or to impose new gun regulations because of conditions that have not traditionally existed, there obviously will not be a history or tradition of banning such weapons or imposing such regulations. That does not mean the Second Amendment does not apply to those weapons or in those circumstances. Nor does it mean that the government is powerless to address those new weapons or modern circumstances. Rather, in such cases, the proper interpretive approach is to reason by analogy from history and tradition.

The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown to the Constitution’s Framers. To be sure, applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins. But that is hardly unique to the Second Amendment. It is an essential component of judicial decision making under our enduring Constitution.

The National Rifle Association offered high praise of Kavanaugh, saying that his record on the Second Amendment is “impressive.” And Second Amendment Foundation founder Alan Gottleib mirrored the NRA’s praise, stating, “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.”

But maybe the best endorsement for Kavanaugh comes from the anti-Second Amendment group Everytown for Gun Safety, which blasted him for his “extreme outlier approach to the Second Amendment [that] would elevate gun rights above public safety and put in jeopardy the full range of gun-safety laws.”

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