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
Highly Touted Study Tests Non-Existent Policies, Uses Deceptive Data

News  

Monday, July 22, 2019

Highly Touted Study Tests Non-Existent Policies, Uses Deceptive Data

A study published in the journal of the American Academy of Pediatrics this week generated considerable media attention that focused on the purported finding and not the underlying research design:

Oregon: Initiative Filed to Restrict Self-Defense

Friday, July 19, 2019

Oregon: Initiative Filed to Restrict Self-Defense

On July 18th, Initiative Petition 40​ was filed in Oregon to restrict the Second Amendment rights of law abiding adults by imposing a broad, one-size-fits-all method of storing firearms.  This egregious attack on our freedoms uses virtually ...

NYC Makes Second Bid to Shake Off Supreme Court Scrutiny

News  

Monday, July 22, 2019

NYC Makes Second Bid to Shake Off Supreme Court Scrutiny

Apparently cognizant of the risks of pressing ahead with the defense of its nonsensical and extreme firearm law, New York City has now ramped up its arguments that the legal challenge to the law is ...

“Fact Checker:” Joe Biden’s “Gun Ban” Not a Gun Ban Because Some Guns Wouldn’t Be Banned

News  

Monday, July 15, 2019

“Fact Checker:” Joe Biden’s “Gun Ban” Not a Gun Ban Because Some Guns Wouldn’t Be Banned

Facebook has teamed up with what it calls “third-party fact-checkers” to punish users of its platform that post information embarrassing or inconvenient to the political outlook of its principals. Yet like most sources of what ...

Hollywood Fantasy v. Reality on Firearm Suppressors

News  

Monday, July 15, 2019

Hollywood Fantasy v. Reality on Firearm Suppressors

It’s no secret that Hollywood has a very loose relationship with reality.  The movie industry, after all, is based on fantasy and escapism, and that’s not necessarily a bad thing.  If someone wants to forget ...

Presidential Pretender Who Campaigned on Gun Control First to Call It Quits

News  

Monday, July 15, 2019

Presidential Pretender Who Campaigned on Gun Control First to Call It Quits

On Monday, Eric Swalwell became the first of the many pretenders for the Democrat presidential nomination to bow (or perhaps slink) out of the race. The U.S. Congressman from California’s 15th District had tried to distinguish himself from ...

California: Injunction Filed to Stop California Ammunition Sales Restrictions

Tuesday, July 23, 2019

California: Injunction Filed to Stop California Ammunition Sales Restrictions

On Monday, July 22, CRPA with support of NRA, filed a motion requesting an injunction against enforcement of California's recently implemented ammunition laws. The injunction is part of the case Rhode v. Becerra, filed in April of 2018, where lead Plaintiff ...

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.

NRA Statement On Virginia Special Session

News  

Tuesday, July 9, 2019

NRA Statement On Virginia Special Session

FAIRFAX, Va.–   The interim executive director of the National Rifle Association Institute for Legislative Action, Jason Ouimet, released the following statement today regarding the special session in Virginia:  "The National Rifle Association has a long ...

Virginia: Crime Commission Hearing Dates Set

Tuesday, July 16, 2019

Virginia: Crime Commission Hearing Dates Set

As directed by the General Assembly during the July 9th special session, the Virginia State Crime Commission will be holding hearings on August 19th and 20th to evaluate Governor Ralph Northam’s proposed gun control bills. 

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.