With the national gun control debate still raging after the Parkland school massacre, President Donald Trump just nominated a conservative, pro–gun rights judge for the Supreme Court.
Brett Kavanaugh served on the U.S. Court of Appeals for the District of Columbia Circuit for 12 years and famously ruled against efforts to implement gun regulations in Washington, D.C., in 2010. Just hours after Trump nominated him to fill retiring Justice Anthony Kennedy’s seat Monday night, the NRA issued a statement of support. While the Supreme Court hasn’t heard a gun rights case in more than eight years, Kavanaugh, if confirmed, could make the justices more likely to take one up — especially after two conservative justices expressed frustration at the trend last term.
“President Trump has made another outstanding choice in nominating Brett Kavanaugh for the U.S. Supreme Court,” Chris Cox, the NRA legislative arm’s executive director, wrote in a statement.
The last time the high court heard a gun-related case was in 2010, and it’s been nearly a decade since justices ruled in District of Columbia v. Heller, a landmark case that affirmed private citizens’ rights to own guns. In the 5-4 ruling — with Kennedy as the swing vote — the court concluded that a decades-old Washington, D.C., law banning handguns and requiring other firearms to be stored unloaded violated the Second Amendment.
Before that, the court hadn’t heard a gun-rights case in over 70 years.
Following that ruling, D.C.’s city council tried to implement a new set of regulations more compliant with the decision in Heller, which included a ban on semi-automatic rifles. Those led to a second legal challenge, known as Heller II, which ended up before Kavanaugh on the D.C. Circuit.
While the majority of the court upheld the city’s rules, Kavanaugh dissented and wrote that the city council had tried to subvert or find a work-around to the Supreme Court ruling.
"As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction,” Kavanaugh wrote in his 52-page dissent. “Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.”
Kavanaugh further argued a distinction between handguns and semi-automatic rifle was irrational. “The majority opinion next contends that semi-automatic handguns are good enough to meet people's needs for self-defense and that they shouldn't need semi-automatic rifles,” he wrote. “But that's a bit like saying books can be banned because people can always read newspapers.”
But in his majority opinion in the Heller case, the late Antonin Scalia, known as the conservative anchor of the court, stressed that the application of the Second Amendment to private citizens was not “unlimited.” For example, justices recommended prohibiting felons and mentally ill individuals from owning firearms, banning guns from places like schools and government buildings, and laying some ground rules concerning the commercial sale of firearms.
“Brett Kavanaugh is a true Second Amendment radical,” wrote Connecticut Sen. Chris Murphy, a Democrat and a vocal advocate for gun control since the December 2012 massacre at Sandy Hook elementary school that left 20 young children dead. “He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream, far to the right of even late Justice Scalia.”
Despite Kavanaugh’s clear opposition to D.C.’s ban on semi-automatic rifles, constitutional scholars said it’s difficult to speculate whether he could make the Supreme Court more likely to accept Second Amendment cases in the future.
“Whether Kavanaugh is a vote for taking up other Second Amendment cases, I have no idea,” said Nick Johnson, an expert in the Second Amendment and professor at Fordham Law School. “What he was doing in the Heller II case was being a loyal lower court judge and respecting precedent. Does that mean he would be more likely to vote yes on a subsequent Second Amendment case of unknown parameters? That’s where we’re reading tea leaves.”
But both Justice Clarence Thomas — the court’s biggest advocate for accepting gun cases — and his conservative colleague Neil Gorsuch — have signaled frustrations with the Supreme Court’s reticence toward Second Amendment cases. In a dissent of the court’s decision to reject a major gun rights case out of California, they described the court’s treatment of the Second Amendment as a “disfavored right” part of a “distressing trend.”
With a third conservative justice on the high court clearly unafraid to voice his views on the Second Amendment, the justices could finally decide to hear a challenge.
“I think that’s the kind of case that would be of interest to Kavanaugh,” said David Kopel, a gun rights advocate and a professor of advanced constitutional law at Denver University. “As you saw, much of his dissent in Heller II focused on how much of an outlier the D.C. law was compared to other laws across the country.”
Kopel thinks the next Second Amendment case likely headed to the Supreme Court is a fight over a new California law requiring that all guns be equipped with microstamping technology, which would make it easier to trace a bullet back to a gun. Last month, the California Supreme Court threw out a challenge to the law.
Cover image: Supreme Court nominee Brett Kavanaugh on Capitol Hill in Washington, Tuesday, July 10, 2018, to meet with Republican leaders as the battle begins over his nomination to the Supreme Court. (AP Photo/Susan Walsh)