Explore The NRA Universe Of Websites

Judge Brett Kavanaugh Has Earned NRA Members’ Support

Friday, July 13, 2018

Judge Brett Kavanaugh Has Earned NRA Members’ Support

NRA members can feel confident throwing their enthusiastic support behind President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. Throughout his time on the bench, Judge Kavanaugh has demonstrated deep respect for the Second Amendment as construed in Justice Antonin Scalia’s landmark decision in District of Columbia v. Heller. Moreover, his record on the Second Amendment is well established. As Second Amendment scholar and University of Denver Law Professor Dave Kopel wrote earlier this week, “No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh.”

The bulk of Judge Kavanaugh’s record on the Second Amendment comes from his 2011 dissent in Heller v. District of Columbia, or Heller II. The case concerned a challenge to Washington, D.C.’s ban on commonly-owned semi-automatic rifles and the city’s onerous firearms registration regime.

Under much constitutional precedence, courts are tasked with interpreting a law’s impact on a given right by using a system of tiered balancing tests, where they weigh the government’s interest against the right at stake. Fundamental rights are tested under a strict scrutiny standard, whereby the government has the burden of showing that a given restriction serves a compelling government interest and is the least restrictive means to further that interest. Lesser infringements are tested using intermediate scrutiny, which requires a restriction to serve an important government interest and that the means of doing so are substantially related to the interest. All laws are subject to the rational basis test, whereby a given restriction must be at least rationally related to a legitimate government purpose.

Many gun rights advocates have argued that, as a fundamental right, laws that infringe upon the Second Amendment right should be subject to strict scrutiny analysis. In practice, courts have used these balancing tests with little consistency and in a manner that frustrates the precedent set in Heller.

In Heller, Justice Scalia did not contemplate an interest balancing test for interpreting whether a restriction violated the Second Amendment. Rather, he made clear that bans on firearms “in common use” were impermissible and that some “longstanding” restrictions were acceptable.

In his 52-page Heller II dissent, Judge Kavanaugh recognized that Heller demanded that courts “assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Further explaining the method of analysis prescribed in Heller, Judge Kavanaugh quoted Justice Scalia’s concurrence in McDonald v. Chicago, writing,

it is that the Heller test will be more determinate and “much less subjective” because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethicopolitical First Principles whose combined conclusion can be found to point in any direction the judges favor.”

Through this framework, while also adhering to Heller’s command about firearms “in common use,” Judge Kavanaugh determined that D.C’s ban on commonly-owned semi-automatic rifles was unconstitutional. Judge Kavanaugh explained,

In disapproving D.C.’s ban on handguns, in approving a ban on machine guns, and in approving longstanding regulations such as concealed-carry and felon-in-possession laws, Heller established that the scope of the Second Amendment right – and thus the constitutionality of gun bans and regulations – is determined by reference to text, history, and tradition.

Using this lens, the judge determined, “There is no basis in Heller for drawing a constitutional distinction between semi-automatic handguns and semiautomatic rifles,” and concluded,

the Second Amendment as construed in Heller protects weapons that have not traditionally been banned and are in common use by law-abiding citizens. Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller.

Going further, Judge Kavanaugh also explained that if a court were to use a balancing test to analyze a firearm restriction, it should use strict scrutiny. Judge Kavanaugh determined that D.C.’s semi-automatic rifle ban would fail this test. The judge wrote,

Even if it were appropriate to apply some kind of balancing test or level of scrutiny to D.C.’s ban on semiautomatic rifles, the proper test would be strict scrutiny, as explained above…. D.C. cannot show a compelling interest in banning semi-automatic rifles because the necessary implication of the decision in Heller is that D.C. could not show a sufficiently compelling interest to justify its banning semi-automatic handguns.

 

TRENDING NOW
Here We Go Again: Anti-gun States Simultaneously Sue Law-Abiding Gunmaker

News  

Friday, December 13, 2024

Here We Go Again: Anti-gun States Simultaneously Sue Law-Abiding Gunmaker

Last week, the anti-gun attorneys general of Minnesota and New Jersey filed nearly simultaneous lawsuits against firearm maker Glock, essentially claiming the company was violating the laws of those states by making guns that are too easy to illegally ...

Concealed Carry Permit, Gun Sale Numbers Stay Strong in 2024

News  

Monday, December 16, 2024

Concealed Carry Permit, Gun Sale Numbers Stay Strong in 2024

The Crime Prevention Research Center (CPRC) has released the latest in its series of annual reports on trends in concealed carry permits in America.

Michigan: Final Push to Limit Gun Rights as Session Clock Runs Down

Wednesday, December 18, 2024

Michigan: Final Push to Limit Gun Rights as Session Clock Runs Down

With only a few days left in the session, anti-gun legislators are doing everything they can to pass additional legislation restricting the Second Amendment rights of Michigan citizens. The legislation below could be taken up ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Michigan: Anti-Gun Legislation Passed in the Middle of the Night Heads To Governor’s Desk

Friday, December 20, 2024

Michigan: Anti-Gun Legislation Passed in the Middle of the Night Heads To Governor’s Desk

With the sun setting on the 2023-2024 legislative session, yesterday the Michigan Senate held a marathon session lasting over 24 hours. While citizens were sleeping, anti-gun lawmakers were able to pass two pieces of legislation, ...

Maine: Prepare for Progressives to Attack Your Hunting Rights

Wednesday, December 18, 2024

Maine: Prepare for Progressives to Attack Your Hunting Rights

While 2024 may be winding down now, the 2025 legislative session is about to heat up, and radical anti-gun progressive politicians are already planning new ways to strip you of your fundamental rights.  

Gun Control Activists Cite “Loopholes” in CEO’s Murder, Ignore Facts and Law

News  

Monday, December 16, 2024

Gun Control Activists Cite “Loopholes” in CEO’s Murder, Ignore Facts and Law

Predictably, gun control activists are citing the cold-blooded Manhattan murder of health insurance executive Brian Thompson to call for more gun control, particularly in the hot-button areas of “ghost guns” and “3D printed firearms.” 

NYC Subway More Dangerous Than the Gridiron?

News  

Monday, December 16, 2024

NYC Subway More Dangerous Than the Gridiron?

Violent crime in New York City has been a growing concern over the last few years.  

Michigan: Take Action Against Anti-Gun Legislation TODAY!

Friday, December 13, 2024

Michigan: Take Action Against Anti-Gun Legislation TODAY!

With lame duck session in full swing, Michigan Democrats are doing everything they can to pass additional anti-gun legislation. Last night, the Senate passed, among other things, legislation that would restrict home-built firearms and ban ...

Canada Announces New Gun Bans, More Gun Control on the Horizon

News  

Monday, December 9, 2024

Canada Announces New Gun Bans, More Gun Control on the Horizon

On December 5, at a late afternoon press conference in Ottawa, Canada’s federal Public Safety Minister Dominic LeBlanc announced that 324 additional makes and variants of rifles would be added to the 2020 list of ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.