President Trump tonight nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the DC Circuit to fill the Supreme Court seat vacated by the retirement of Justice Anthony Kennedy who occupied the Court’s so-called middle seat. If confirmed, Kavanaugh will likely move the center of the Court decidedly to the right, though by how much remains to be seen. The betting among Court watchers is that Chief Justice John Roberts will likely assume that middle position going forward.
What would a Justice Kavanaugh mean for gun owners?
Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia’s ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority’s use of “intermediate scrutiny,” saying an analysis “based on text, history, and tradition” is more consistent with the Supreme Court’s Second Amendment precedents.
The D.C. “assault weapon” ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. “The list appears to be haphazard,” Kavanaugh noted. “It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not.” In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.
“In Heller,” Kavanaugh noted, “the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller‘s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.”
Like all of Trump’s finalists, Judge Kavanaugh is relatively young, only 53 years old, and could serve on the Court for 25 to 30 years, a factor that elevates the significance of the nomination. He could influence the Court’s direction for a generation or more.
Because of that, look for loud, lurid and sustained hysterics about Kavanaugh on the part of Trump’s opponents. The nominee will undoubtedly be labeled an extremist who will usher in a new dark age of racism, a resurgent Handmaid’s Tale-like theocratic patriarchy, back-alley abortions, the end of individual privacy and, yes, an “assault weapon” in every home.
But as Mark Thiessen writes, Democrats have little ability to do much to stop confirmation. And they have no one to blame but themselves.
When Donald Trump was elected and appointed Gorsuch to fill Scalia’s seat, apoplectic Democrats made a fatal error: Instead of keeping their powder dry until Kennedy resigned, they filibustered Gorsuch’s nomination. The decision to block such an obviously qualified nominee – praised for his impeccable temperament, character and intellect by legal scholars on both the left and right – freed tradition-bound Republicans to end the filibuster for Supreme Court nominees and confirm him with a simple majority.
Had Democrats not tried to block Gorsuch, they would still have the filibuster. And Republicans, who now have just a single-vote majority, would have a much more difficult time mustering the votes to change Senate rules today. But thanks to Democrats’ miscalculations, the GOP doesn’t have to.
Pass the popcorn.