As both supporters and opponents of Judge Brett Kavanaugh’s Supreme Court nomination marshal the arguments most likely to persuade swing Democratic and Republican senators, his writings and judicial record are being scoured for evidence that he has taken positions that are not only conservative, but so radical as to be “outside the mainstream.” Indeed, the charge of being “outside the mainstream” was a potent weapon in the successful fight to oppose Robert Bork’s nomination more than 30 years ago. Even now, it is a label every Supreme Court nominee dearly wants to avoid.
There is at least one issue on which Judge Kavanaugh is plainly outside the mainstream of current jurisprudential thought: guns and the Second Amendment. Unlike the four federal appeals courts that have upheld assault weapon bans, Kavanaugh believes that semi-automatic assault rifles, like the AR-15 used in so many mass shootings, are constitutionally protected. The way he arrives at that conclusion is equally outside the mainstream and perhaps even more troubling. According to Kavanaugh, whether any gun regulations—not just assault weapon bans—contribute to public safety is simply irrelevant to their constitutionality, a view that stands in opposition to every federal appeals court that has addressed the Second Amendment since the Supreme Court’s landmark ruling ten years ago in District of Columbia v. Heller.
In the Heller case, the Supreme Court struck down the District of Columbia’s prohibition on handgun possession and found, for the first time, a Second Amendment right to possess a handgun in the home for self-defense. Justice Antonin Scalia’s 5–4 majority opinion expressly purports to be grounded in text and history, namely, text that would “have been known to ordinary citizens in the founding generation.” Scalia’s originalist analysis concluded that, despite the text’s reference to “a well regulated Militia being necessary to the security of a free State,” the amendment’s “right of the people to keep and bear Arms” is not limited to the possession in connection with militia service.
In a transparent effort to protect other existing gun laws from an overly broad application of that right, Scalia’s opinion also features an extraordinary section on the rich history of American gun regulation. The Court found that the Second Amendment right “is not unlimited” and that it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Indeed, the Court offered the reassurance that “nothing in our opinion should be taken to cast doubt” on various longstanding gun laws, including prohibitions on gun possession by felons and the mentally ill, laws forbidding guns in sensitive places like schools, or “laws imposing conditions and qualifications on the commercial sale of arms.” The Court also noted 19th-century court decisions upholding prohibitions on carrying concealed weapons, as well as the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.” And it noted that its listing of “presumptively lawful regulatory measures” did not “purport to be exhaustive.”
These passages represent a highly unusual effort by the Court to communicate to the lower courts that the application of the Second Amendment to gun laws must recognize the unique public safety concerns that have animated our well-established tradition of gun regulation. Just as the Heller court found the right to be armed in the home for self-defense rooted in our history, so it also found laws regulating that right in the interest of public safety to be equally a part of that history. Examples of “longstanding” gun laws were given to provide safe harbors for such laws or laws analogous to them, or at least to place a heavy burden of proof on those who would challenge them.
Kavanaugh, however, has read these passages to mean something very different. In a case known as Heller II brought by the same plaintiff who brought the original lawsuit, Federal Appeals Judge Kavanaugh filed a lengthy dissent from a ruling by the D.C. Circuit that upheld the District of Columbia’s assault-weapon ban, among other D.C. gun laws. Kavanaugh’s dissent interprets Heller to mean that a gun law could be constitutional only if similar laws have a long historical pedigree. After mischaracterizing the D.C. law as banning “semi-automatic rifles” when it only banned a subset of those rifles with military-weapon characteristics, Kavanaugh determined that “semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller.”
Thus, for Kavanaugh, the constitutionality of the assault weapons ban turned entirely on “history and tradition.” For him, such considerations as whether high firepower rifles like the AR-15 have become the weapons of choice of mass killers, or whether police are being outgunned by criminals wielding those guns, are legally irrelevant. Indeed, his view implies that legislative bodies are constitutionally precluded from developing new kinds of gun laws that may be necessary to protect the public against newly emerging threats of violence, or that may be supported by new data. Regardless of how valuable such innovative new laws may be in saving lives, they would lack the requisite historical pedigree to survive constitutional challenge. For gun laws, the past would define the constitutionally permissible future.
All ten federal circuit courts that have addressed the issue have explicitly or implicitly rejected this interpretation of Heller. The courts have read Heller to mean that, for constitutional validity, it may be sufficient for a gun law to be firmly rooted in history, but that pedigree is not necessary for it to be constitutional. As the two-judge majority (both Republican appointees) who upheld D.C.’s assault weapon ban in Heller II observed, “[A] regulation that is ‘longstanding,’ which necessarily means it has long been accepted by the public, is not likely to burden a constitutional right.” But, they wrote, “Although Heller renders longstanding regulations presumptively constitutional, it nowhere suggests a law must be longstanding … to be constitutional.”
Instead, according to the consensus view, laws that lack a long historical pedigree may still be upheld if they are “substantially related to an important governmental objective.” This “intermediate scrutiny” standard requires courts to assess how gun laws contribute to public safety and has resulted in the vast majority of existing gun laws being upheld since Heller. (No federal appeals court has applied “strict scrutiny” to a gun law, which requires a far greater level of justification for a law to survive a constitutional challenge.)
The majority upheld the D.C. assault weapon ban under this “intermediate” standard, finding that the guns in question have military features that facilitate rapid firing of large numbers of rounds, are disproportionately used in mass murders and murders of police, and are not materially different in firepower from full-automatic machine guns, which Heller itself recognizes have no constitutional protection. In a later ruling, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, upheld the Maryland assault rifle ban by a vote of 10 to 4 (the majority composed of Republican and Democratic appointees alike), finding that assault rifles like the AR-15 are sufficiently similar to military weapons like the M-16 as to receive no constitutional protection at all.
In Heller II, Kavanaugh, in asserting that Heller leaves no room to even consider public-safety justifications, relied on the Heller majority’s rejection of Justice Stephen Breyer’s dissenting view. Breyer argued that D.C.’s handgun ban should be judged by an “interest-balancing” inquiry, which would involve determining whether the burden on gun rights was “disproportionate” to the law’s public-safety benefits. But Scalia’s opinion makes it clear that the majority did not regard Breyer’s “interest-balancing” test as equivalent to any of the traditional levels of scrutiny applied to laws that affect constitutional liberties, including “intermediate” and “strict” scrutiny. Scalia further indicated that there was no need to define the appropriate level of scrutiny to be applied to the ban because it was so destructive of the Second Amendment right that it would fail under any of the traditional standards of judicial review. As ten federal appeals courts have found, nothing in Scalia’s opinion supports Kavanaugh’s view that it is impermissible under Heller to apply a legal standard in gun cases that would involve assessing the public-safety justifications for the law at issue.
For a nation regularly traumatized by mass shootings, in which even elementary and high school kids are at risk as they sit in their classrooms, Kavanaugh’s extremism on guns has significance far beyond his departure from mainstream constitutional analysis. Our nation suffers from a chronic level of gun violence unheard of in other high-income nations precisely because our “longstanding” gun laws have been inadequate to the task. If “history and tradition” are to be the only determinants of constitutionally permissible gun restrictions, our deadly past will unquestionably be our future.