Brett Kavanaugh Wants You to Bear His Assault Weapon
(Bloomberg Opinion) -- In 2014, Texas Open Carry enthusiasts began wandering into fast-food joints and city squares, lugging their big guns and generally freaking people out. Their actions appeared so deranged that the National Rifle Association -- yes, that National Rifle Association -- declared their behavior "downright weird."
The NRA promptly reversed course, however, recognizing that as the nation's leading church of gun worship, it didn't want to lose parishioners to more spiritually pure congregations. Texas soon moved on to battles over campus carry and other efforts to impose militant gun culture where it is unwanted.
The status of open carry was not resolved in District of Columbia v. Heller, the 2008 ruling written by Justice Antonin Scalia that established an individual right to firearms. But it's widely assumed that "bearing" arms as an individual means carrying them. So Heller's individual right may eventually require allowing either concealed or open carry -- or both.
“This is one of the great unresolved issues in Second Amendment jurisprudence," said UCLA law professor Adam Winkler, author of "Gun Fight," a history of guns and the law.
The Supreme Court has been in no hurry to resolve it. After Heller, the court repeatedly declined to hear challenges to gun regulations, leaving gun-regulation advocates to believe they may have gotten the better of Scalia's messy ruling.
Most court watchers assumed that Justice Anthony Kennedy, who supported Heller, was one of the judges turning away gun cases. If Brett Kavanaugh, President Donald Trump's choice to replace Kennedy, is confirmed by the Senate, he seems unlikely to follow suit. The gun movement may soon have the votes needed to usher in a new era of laissez-faire gun laws.
Abortion rights are bound to occupy much of Kavanaugh's Senate confirmation hearings this week. But as a judge on the Court of Appeals for the District of Columbia Circuit, Kavanaugh staked a bold claim as a champion of the gun movement. His gun manifesto is a lengthy 2011 dissent in a case in which he was overruled by two other Republican-appointed judges.
The court's majority opinion in that case upheld Washington D.C.'s ban on semi-automatic firearms and its gun registration law. Kavanaugh dissented on both items, claiming the court could rely only on “text, history and tradition.” Those are dodgy standards for a famously ambiguous Second Amendment text, a vigorously disputed history of guns in America and a widely varied tradition of regulation. (As it happens, Heller has been credibly assailed on all counts, most notably from the right, as a product of both mangled history and misbegotten law. )
In the circuit court case, dubbed "Heller II" after the same plaintiff, Dick Anthony Heller, who had won the landmark Supreme Court case, Kavanaugh said there is "no meaningful or persuasive" distinction between a semi-automatic pistol and a semi-automatic rifle. He went on to compare a ban on a class of arms, such as assault weapons, to "a ban on a category of speech."
It takes a peculiarly willful blindness, in a land uniquely beset by gun massacres, to claim semi-automatic rifles and semi-automatic pistols are indistinguishable. There is perhaps no more eloquent refutation than the 58 dead and more than 800 injured at a Las Vegas concert last October. The killer chose rifles over pistols for a reason: superior lethality.
Furthermore, if there's no distinction, then a right to "bear" arms openly would seem to entail the right to openly parade an AR-15. And since an AR-15 is essentially not concealable, even a concealed-carry law would yield a similar result.
Kavanaugh's assertion that categories of guns are equivalent to categories of speech may be the surest mark of gun culture's influence. Break the claim down to essentials, and bullets equal words. Everyone, no matter how nutty, dangerous, addled or enraged, has a right to speak, don't they?
Scalia liked to assert: "I am not a nut." He may have had that in mind when he peppered his Heller decision with caveats. He wrote that gun rights are "not unlimited." He explicitly listed concealed carry, the "carrying of firearms in sensitive places such as schools and government buildings," conditions and qualifications on gun sales, and the bans on possession by felons and the mentally ill as the sort of "longstanding" firearm regulations that are constitutional.
Scalia's list of prohibitions heartened proponents of gun regulation. (In another blow to Scalia's credibility, however, one researcher pointed out that ye olde and traditionale ban on possession by felons dates only to 1961.)
While Scalia hedged his ruling, Kavanaugh would have pushed the law into a full endorsement of gun culture, based on a selectively gun-centric version of “text, history and tradition.”
In his history of the Second Amendment, Michael Waldman cites a traditional misdemeanor -- "affrighting" -- that dates from medieval Europe. It entailed carrying a weapon in a way that menaced others. It's essentially what the Texas Open Carry movement and others engage in, displaying weapons of war as a means of intimidation.
In 2014, parents in Forsyth County, Georgia, north of Atlanta, frantically stopped their kids' baseball game due to the appearance of an armed man in the park. The man, one parent told a local TV station, was "just walking around [saying] 'See my gun? Look, I got a gun, and there's nothing you can do about it.' He knew he was frightening people."
The man was right. There was nothing they could do about it. Georgia politicians had subjugated public safety and civic culture to gun nuttery, including open carry. The state has the kind of guns-everywhere laws that are premised on the fantasy that all citizens are responsible "good guys," and that carrying around a semi-automatic weapon in a populous, civilized society is nothing more than a righteous display of manhood.
But some guys are not always, or particularly, good. They are reckless, angry, resentful, with volatile tempers and poor impulse control. Such men may find that brandishing a gun, spreading alarm and discomfort to others -- affrighting -- is an effective way to assuage, temporarily, their own abiding insecurities. A man like that might decide to bring his gun to a kids' game. Just because.
Brett Kavanaugh will have his back.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.
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