Kavanaugh Should Be Closely Questioned on Guns

(The Bloomberg View) -- President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court gives cause for concern — not least because of the nominee’s views on the Second Amendment. Senators should use this week’s confirmation hearings to question him closely on the weight he attaches to public safety when it comes to regulating guns.

Kavanaugh, a judge on the Court of Appeals for the District of Columbia Circuit, laid out his thinking in a lengthy dissent to a 2011 circuit court ruling. The majority affirmed Washington D.C.’s gun registration law and the city’s ban on semi-automatic firearms classified as “assault weapons.” Kavanaugh explained why he would have invalidated both laws.

He based his opinion on an interpretation of the Supreme Court rulings in Heller, which established an individual right to firearms in 2008, and McDonald, which extended that right to the states via the 14th Amendment in 2010.

Oddly, the Heller decision, written by Justice Antonin Scalia, has won support from both the gun movement and gun safety activists. This suggests scope for compromise — but at the same time it shows that the Supreme Court did not clarify the law. Heller failed to address numerous issues concerning the constitutionality of gun possession, leaving it to lower courts to sort out the muddle.

Ten federal appeals courts have considered the issue since Heller, and all have adopted a two-phase approach. First, does the law in question come under the scope of the Second Amendment? If so, how substantially does the law burden core Second Amendment rights? Courts have generally applied “intermediate scrutiny” in evaluating Second Amendment challenges.

In his dissent, Kavanaugh rejected the very idea of balancing gun rights against the state’s interest in protecting the public from violence. “In my view,” he wrote, “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history and tradition, not by a balancing test such as intermediate or even strict scrutiny.” But this “text, history, and tradition” standard is derived from a selective reading of Heller. It’s a poor foundation on which to rest the whole of U.S. gun law.

For a start, the text of the Second Amendment, with its preamble citing a “well-regulated militia,” is notoriously ambiguous. Scalia’s declaration that its meaning had, in 2008, suddenly become crystal clear was puzzling. His opinion was subject to blistering criticism not only from liberals but from two of the leading conservative jurists in the country, J. Harvie Wilkinson III and Richard Posner. (In a particularly stinging rebuke, Wilkinson likened Heller to the court’s abortion-rights decision in Roe v. Wade.)

The “history” part of the “text, history and tradition” standard is no more reliable. The course of American firearm law is extremely varied. (Gun regulations were much stricter in some 19th-century towns than they are in much of 21st-century America.) Scalia’s account was vigorously disputed not only by four of his colleagues on the bench but by leading historians of the founding era.

And the call for jurists to use “tradition” and “longstanding” policies to guide their interpretation was a curious pronouncement to make in the midst of an opinion that marked such a clear shift from longstanding legal tradition. Prior to Heller, the longtime consensus view of U.S. courts was that gun rights are collective (as in “militia”), not individual. Warren Burger, the then-retired chief justice of the Supreme Court, in 1991 described the claim of an individual right to firearms as “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.”

Kavanaugh’s decision to shun the balancing tests adopted by every federal appellate court that considered the question since Heller and rely solely on “text, history, and tradition” was a grave mistake. Untethered from deference to the policy-making role of elected officials or even from basic common sense, that standard is sufficiently malleable to justify virtually any partisan conclusion. On a Supreme Court that consists of two teams increasingly defined by their political partisanship, this could prove disastrous.

With the NRA now the driving force in Republican Party gun policy, the greatest danger is that the high court could force the NRA’s maximalist ideology on American communities that reject it. More than one-quarter of the U.S. population, for example, lives in places where “assault weapons” are banned. Kavanaugh appears committed to ending such local control, thereby forcing the NRA agenda on everyone, everywhere, in the U.S. 

Heller evinced what Judge Posner described as a “freewheeling discretion strongly flavored with ideology.” Kavanaugh’s strong partisan history — he was a White House aide to President George W. Bush — is not in itself disqualifying. But his attachment to an ideology of maximal gun rights, unrestrained by concern for public safety or the prerogatives of elected officials, should be laid bare and closely examined before the Senate confirms his nomination to the Supreme Court. 

Editorials are written by the Bloomberg View editorial board.

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