If we want gun safety in America, Brett Kavanaugh will not help us

If we want gun safety in America, Brett Kavanaugh will not help us
© Greg Nash

Much of the focus surrounding the nomination of Brett Kavanaugh to the Supreme Court has been on his views on abortion, health care, and presidential power and impeachment. But with his confirmation hearing in the Senate next week, people should be deeply concerned about his troubling position on firearms and the Second Amendment.

Unlike some other constitutional questions, we do not have to guess how Judge Kavanaugh would approach challenges to gun regulations, because he laid out his views in a dissenting opinion in a 2011 case known as Heller II. Those views are outside the mainstream of judicial thought about the Second Amendment. If they prevail on the Supreme Court, they threaten to invalidate a wide range of some of the most important and effective gun safety regulations at the federal, state, and local levels.

ADVERTISEMENT

To determine whether a gun law is constitutional, Judge Kavanaugh asks only one question: Is the law “sufficiently rooted in text, history, and tradition”? In other words, if a gun regulation is “longstanding” or “analogous” to a longstanding regulation, Judge Kavanaugh would likely uphold it. If not, he would likely strike it down.

What this means is that, to Judge Kavanaugh, all that seems to matter under the Second Amendment is what happened in the past. The sole question he asks precludes any consideration by the court of the impact a gun law would have on public safety. Judge Kavanaugh is upfront about this and states that his approach rules out any “examination of costs and benefits” in the dissenting opinion.

Judge Kavanaugh claims that this extremely narrow Second Amendment methodology is mandated by the landmark 2008 decision in District of Columbia v. Heller, which recognized an individual right of “law abiding” and responsible citizens to have a gun in the home for self-defense. But no other court has read Heller the way Judge Kavanaugh does. His own colleagues on the District of Columbia Circuit have criticized his interpretation as “nowhere suggested” by the Supreme Court decision. One conservative legal commentator has explained that it is a “flawed” analysis “based on a misreading of Heller.”

Instead, the consensus among the lower courts, including all 10 federal appeals courts to consider it, is to also ask whether and how much a gun law contributes to public safety today. Under the very different and purely historical approach of Judge Kavanaugh, many critical measures to combat gun violence would be at risk.

We already know from his dissenting opinion in Heller II that Judge Kavanaugh would strike down prohibitions on AR-15s and other assault-style weapons like those used in Parkland, Las Vegas, Orlando, Newtown, Aurora and so many other deadly mass shootings. We also know that he refused to join his fellow judges who voted to uphold the District of Columbia’s prohibition on large capacity magazines.

If Judge Kavanaugh becomes a Supreme Court Justice, his approach to the Second Amendment could also call into question a number of other important gun safety measures of relatively recent vintage, including red flag laws, which empower family members and law enforcement to seek a court order temporarily restricting access to guns when a person poses a danger to self or others, domestic violence restraining order laws that disarm domestic abusers and prohibit them from owning firearms, and even laws requiring criminal background checks on all gun sales.

Simply put, Judge Kavanaugh represents a dangerous view of the Second Amendment that puts gun rights above the public safety of Americans. That is not what we need from our next Supreme Court justice.

Eric Tirschwell, a former federal prosecutor, is director of litigation and national enforcement policy at Everytown for Gun Safety.