Supreme Court nom­i­nee has clear views about guns

The Charlotte Observer (Sunday) - - News - BY MICHAEL KUN­ZEL­MAN AND LARRY NEUMEIS­TER

Supreme Court nom­i­nee Brett Ka­vanaugh says he rec­og­nizes that gun, drug and gang vi­o­lence “has plagued all of us.” Still, he be­lieves the Con­sti­tu­tion lim­its how far gov­ern­ment can go to re­strict gun use to pre­vent crime.

As a fed­eral ap­peals court judge, Ka­vanaugh made it clear in a 2011 dis­sent that he thinks Amer­i­cans can keep most guns, even the AR-15 ri­fles used in some of the dead­li­est mass shoot­ings.

Ka­vanaugh’s nom­i­na­tion by Pres­i­dent Don­ald Trump has de­lighted Sec­ond Amend­ment ad­vo­cates. Gun law sup­port­ers worry that his as­cen­dancy to Amer­ica’s high­est court would make it harder to curb the pro­lif­er­a­tion of guns. Ka­vanaugh has the sup­port of the Na­tional Ri­fle As­so­ci­a­tion, which posted a pho­to­graph of Ka­vanaugh and Trump across the top of its web­site.

The Supreme Court has ba­si­cally stayed away from ma­jor guns cases since its rul­ings in 2008 and 2010 de­clared a right to have a gun, at least in the home for the pur­pose of self-de­fense.

Gun rights ad­vo­cates be­lieve Ka­vanaugh in­ter­prets the Sec­ond Amend­ment right to bear arms more broadly than does Kennedy. As a first step, some le­gal ex­perts ex­pect Ka­vanaugh would be more likely to vote for the court to hear a case that could ex­pand the right to gun own­er­ship or cur­tail a gun con­trol law.

Ka­vanaugh would be a “big im­prove­ment” over Kennedy, said Erich Pratt, ex­ec­u­tive di­rec­tor of Gun Own­ers of Amer­ica. Kennedy sided with the ma­jor­ity in rul­ings in 2008 and 2010 over­turn­ing hand- gun pos­ses­sion bans in the District of Columbia and Chicago, re­spec­tively, but some gun rights pro­po­nents be­lieve he was a mod­er­at­ing in­flu­ence.

“Kennedy tended to be all over the map” on the Sec­ond Amend­ment, Pratt said.

For­mer U.S. Rep. Gabby Gif­fords, the Ari­zona Demo­crat gravely wounded in a 2011 shoot­ing, said in a writ­ten state­ment that Ka­vanaugh’s “dan­ger­ous views on the Sec­ond Amend­ment are far out­side the main­stream of even con­ser­va­tive thought.”

She pre­dicted that Ka­vanaugh would back the gun lobby’s agenda, “putting cor­po­rate in­ter­ests be­fore pub­lic safety.”

In his 2011 dis­sent in a case be­fore the U.S. Court of Ap­peals for the District of Columbia Cir­cuit, Ka­vanaugh ar­gued that the district’s ban on semi­au­to­matic ri­fles and its gun reg­is­tra­tion re­quire­ment were un­con­sti­tu­tional.

That case is known as “Heller II” be­cause it fol­lowed the Supreme Court’s 2008 de­ci­sion in District of Columbia v. Heller strik­ing down the city’s ban on hand­guns in the home.

Ka­vanaugh said the Supreme Court held that hand­guns are con­sti­tu­tion­ally pro­tected “be­cause they have not tra­di­tion­ally been banned and are in com­mon use by law-abid­ing cit­i­zens.”

“Gun bans and gun reg­u­la­tions that are not long­stand­ing or suf­fi­ciently rooted in text, his­tory, and tra­di­tion are not con­sis­tent with the Sec­ond Amend­ment in­di­vid­ual right,” he wrote in a point re­jected by the ma­jor­ity.

Crit­ics con­tend Ka­vanaugh’s anal­y­sis is flawed be­cause AR-15s were not around dur­ing the early days of the repub­lic.

In his dis­sent, Kava- naugh wrote that he had lived and worked in Wash­ing­ton for most of his life and was “acutely aware of the gun, drug, and gang vi­o­lence that has plagued all of us.”

He said few gov­ern­ment re­spon­si­bil­i­ties are more sig­nif­i­cant than fighting vi­o­lent crime. “That said, the Supreme Court has long made clear that the Con­sti­tu­tion dis­ables the gov­ern­ment from em­ploy­ing cer­tain means to pre­vent, de­ter, or de­tect vi­o­lent crime,” he wrote.

He said it was un­con­sti­tu­tional to ban the most pop­u­lar semi-au­to­matic ri­fle, the AR-15, since it ac­counted for 5.5 per­cent of firearms by 2007 and over 14 per­cent of ri­fles pro­duced in the U.S. for the do­mes­tic mar­ket.

He said semi-au­to­matic ri­fles had been com­mer­cially avail­able since at least 1903, “are quite com­mon in the United States” and the Supreme Court said in a 1994 rul­ing that they “tra­di­tion­ally have been widely ac­cepted as law­ful pos­ses­sions.”

Semi-au­to­matic ri­fles were used in sev­eral mass shoot­ings in re­cent years, in­clud­ing the Fe­bru­ary killing of 17 peo­ple at a Florida high school.

Ka­vanaugh re­jected the ma­jor­ity’s rea­son­ing that semi-au­to­matic hand­guns were suf­fi­cient for self­de­fense, say­ing: “That’s a bit like say­ing books can be banned be­cause peo­ple can al­ways read news­pa­pers.”

He be­lit­tled the de­scrip­tion of the guns as “as­sault weapons,” say­ing that hand­guns could be called the “quin­tes­sen­tial ‘as­sault weapons’ be­cause they are used much more than other guns in vi­o­lent crimes.

He was equally dis­mis­sive of Wash­ing­ton’s gun reg­is­tra­tion pro­to­col, say­ing it had not been tra­di­tion­ally re­quired in the na­tion and “re­mains highly un­usual to­day.”

Still, Ka­vanaugh sup­ported the ban on full au­to­mat­ics or ma­chine guns, rea­son­ing that they “were de­vel­oped for the bat­tle­field and were never in wide­spread civil­ian use.”

Some le­gal ex­perts be­lieve Ka­vanaugh’s con­fir­ma­tion would make it more likely the court will hear an­other po­ten­tially ground­break­ing Sec­ond Amend­ment case. Only four of nine jus­tices need to vote in fa­vor of re­view­ing a case.

UCLA law school pro­fes­sor Adam Win­kler, au­thor of “Gun­fight: The Bat­tle Over the Right to Bear Arms in Amer­ica,” said Ka­vanaugh could be­come that cru­cial fourth vote be­cause three jus­tices – Neil Gor­such, Clarence Thomas and Sa­muel Al­ito Jr. – all have voiced sup­port for the court to take on Sec­ond Amend­ment cases.

Still, it takes five jus­tices to win a case and Chief Jus­tice John Roberts may turn out to be as re­luc­tant as Kennedy to fur­ther de­fine the law.


There’s no mys­tery about where Judge Brett Ka­vanaugh, the lat­est U.S. Supreme Court nom­i­nee, stands on gun rights. Ka­vanaugh made it clear in a 2011 dis­sent that he thinks Amer­i­cans can keep most guns.

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