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What Are Brett Kavanaugh's Views on the Second Amendment?

By: Teresa Mull

Supreme Court nominee Brett Kavanaugh’s Senate confirmation hearings are underway (you can watch them here). Liberal California Democrat Dianne Feinstein told Kavanaugh during an open statement, “It’s pretty clear that your views go well beyond simply being ‘pro-gun.’”

Feinstein said Kavanaugh’s views are “far outside the mainstream of political thoughts,” going so far as to say, “If the Supreme Court were to adopt your reasoning, I feel the number of [shooting] victims would continue to grow. Even Scalia understood that weapons that are most useful in military service can in fact be regulated.”

So what are Kavanaugh’s views on the Second Amendment? Here’s what SCOTUSblog.com has to say:

Although not a dyed-in-the-wool originalist like Scalia, who maintained that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written, Kavanaugh has relied on originalist principles in controversial cases. In Heller v. District of Columbia, a 2011 challenge to a city law, enacted after an earlier law regulating handguns was invalidated by the Supreme Court, that banned possession of semi-automatic rifles and required registration of all guns, Kavanaugh dissented from the panel opinion that applied intermediate scrutiny to largely uphold the statute. In Kavanaugh’s words, the Supreme Court left “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.”

“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…. 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,” Kavanaugh wrote in his dissent.

The NRA has endorsed Kavanaugh. Chris Cox, the organization’s executive director, said of his nomination, “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. 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.”

Not So Fast
Ryan Flugaur, the National Association for Gun Rights’ Senior Political Director, says gun owners should be wary of taking Kavanaugh’s dissent as sign the judge is completely against gun control.

“In the Heller ruling, Kavanaugh sided correctly, dissenting from the anti-gun majority, claiming the gun laws were largely unconstitutional,” Flugaur said. “He did so, not by invoking ‘strict scrutiny,’ which is something gun rights advocates typically push for. Instead, Kavanaugh ruled that the gun control laws were not constitutional because ‘text, history, and tradition’ do not support them. On the surface this sounds like a good argument, but other than being a remark from Justice Scalia in the Heller decision, it’s unclear if the phrase has any legal meaning.

“The question that’s not being asked by anyone is ‘What, if any, gun restrictions does Kavanaugh believe are consistent with ‘text, history, and tradition’?’” Flugaur said. “I’m pretty sure the leftists will make up all sorts of outrageous claims that some gun controls are consistent with that description. Namely, background checks (gun registration), and the requirement that someone get a government permit to carry a lawfully owned firearm for self-defense which some states currently impose on gun owners. Until Kavanaugh’s confronted with that question, I don’t think it’s wise for anyone to assume he’ll rule pro-gun again. Especially if the case has national implications for the Second Amendment.

“But the political reality is right now that people think he’s pro-gun,” Flugaur concluded. “And he could very well turn out to be one of the most pro-gun justices in our lifetime. I for one hope that turns out to be the case.”

The Hearing Continues
During confirmation questioning, Feinstein said to Kavanaugh, “You specifically argued that it was unconstitutional to defend assault weapons because they are — to ban assault weapons because they are in common use. And that, I believe, was your dissent in the case.”

To which Kavanaugh responded, according to a PBS transcript:

Yes, and I was referring to some semi — some kinds of semiautomatic rifles that are banned by D.C. are in wide — widely owned in the United States. And that seemed to be the test that the Supreme Court had set forth in the Heller and McDonald cases, in other words, if a type of firearm is widely owned in the United States.

Now, whether I agree with that test or not wasn’t the issue before me. I have to follow the precedent of the Supreme Court as it’s written, and that’s what I tried to do in that case. It’s a very long opinion. I also made clear, Senator Feinstein, at the end of the opinion I’m a — I am a native of this area. I’m a neighbor native of an urban, suburban area, where we — I grew up in a city plagued by gun violence and gang violence and drug violence.

So I fully understand, as I explained in the opinion, the importance of this issue. I specifically referenced that Police Chief Cathy Lanier’s goals of reducing gang and gun violence was something I certainly applauded, but that I had to follow the precedent of the Supreme Court in that case.

And as I read it, that’s what it said.

According to The Washington Post, “Senate Judiciary Chairman Chuck Grassley says the Senate could confirm Supreme Court nominee Brett Kavanaugh in time for the new court term that begins Oct. 1.”

Teresa Mull is editor of Gunpowder Magazine. Contact her at teresa@gunpowdermagazine.com.

Photo Credit: Shutterstock

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect those of Gunpowder Magazine.