Calling Out Kavanaugh…
For his Hypocrisy on Gun Control and the Second Amendment
A Message from the President of Americans Against Gun Violence
In his opening statement at his Senate Judiciary Committee confirmation hearing, Donald Trump’s nominee to fill the vacancy on the Supreme Court, Judge Brett Kavanaugh, sought to portray himself as a humble servant of the U.S. Constitution. He stated:
A judge must be independent and interpret the law, not make the law. A judge must interpret the Constitution as written, informed by history and tradition and precedent. In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: “the rules of legal interpretation are rules of common sense.”
These are noble words, but actions speak louder than words, and through his actions, Judge Kavanaugh has demonstrated on a number of issues that his statement above is sheer hypocrisy.
There is no issue on which Judge Kavanaugh’s hypocrisy is more blatant than that of gun control and the Second Amendment, and there is no more flagrant example of his hypocrisy than his dissenting opinion in the 2011 case, Heller versus the District of Columbia. In this opinion, Kavanaugh claimed that a ban on assault rifles – and even a requirement that other guns be registered – violated the Second Amendment.
By way of background, the 2011 case of Heller v. District of Columbia (Heller II) was a sequel to the 2008 case, District of Columbia v. Heller (Heller I). In Heller I, Dick Heller, a Washington DC security guard, challenged the constitutionality of the District’s Firearms Control and Registration Act of 1975 which prohibited DC residents from acquiring any new handguns after 1975 and which required that all handguns owned prior to that date be registered and be stored locked and unloaded when not in use. A District Court judge initially dismissed Heller’s lawsuit, but Heller appealed the decision to the U.S. District Court of Appeals for Washington DC. A three judge panel ruled in Heller’s favor in a split, 2-1 decision, with two of the judges concluding that the District’s partial handgun ban violated the Second Amendment.
The District of Columbia appealed the panel’s ruling to the Supreme Court. In a 5-4 decision (Heller I), the Supreme Court ruled in 2008 that the Second Amendment did in fact confer a right to keep a handgun in the home for “self-defense.” (The Court did not acknowledge the extensive evidence documenting that there is, in fact, no net protective value of keeping a handgun in the home.) The 2008 Heller decision was the first time in U.S. history that the Supreme Court had ever ruled that the Second Amendment conferred an individual right to own any kind of a gun outside of service in a “well regulated militia.” The Court had previously ruled on four separate occasions (United States v. Cruikshank in 1876, Presser v. Illinois in 1886, U.S. v. Miller in 1939, and Lewis v. United States in 1980) that the Second Amendment did not confer an individual right to own a gun.
After the 2008 Heller I decision, the District of Columbia dropped its ban on new handgun acquisition. The District kept in place, though, a previous ban on assault weapons and high capacity magazines, and it further tightened regulations for registering other firearms. Fresh off his victory in Heller I, Dick Heller filed another lawsuit challenging the assault weapons ban, the high capacity magazine ban, and the registration requirements for other guns. The District Court ruled against Heller, as it had in Heller I, and Heller again appealed the lower court’s ruling to the U.S. District Court of Appeals for Washington DC. His appeal was again heard by a three judge panel which this time included Judge Brett Kavanaugh. The other two judges on the panel ruled that the assault weapons ban, the high capacity magazine ban, and most of the registration requirements for other guns did not violate the Second Amendment, even in the aftermath of the Supreme Court’s radical 2008 Heller I decision. Kavanaugh dissented, though, and wrote a lengthy dissenting opinion.
Kavanaugh began his dissent by quoting the Second Amendment, which states, in its entirety:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
To his credit, Kavanaugh acknowledged in his dissent that Heller I was a controversial decision, citing two critical articles in legal journals. He stated that the reason for the controversy was, “in part,” the fact that there was a high rate of gun violence in the District of Columbia. He failed to mention, however, that the main reason why Heller I was so controversial was that it reversed over 200 years of prior legal precedent, including four prior Supreme Court decisions in which it had been decided that the Second Amendment did not confer an individual right to own guns. In particular, Kavanaugh failed to mention the unanimous opinion of the Supreme Court in Miller in 1939, reiterated in Lewis in 1980, that, “The Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’” Kavanaugh also failed to mention that the majority opinion in Heller I, written by the late Justice Antonin Scalia, falsely implied that the Heller I was consistent with those prior Supreme Court decisions. Instead, Kavanaugh stated in his dissent that in Heller I, “the Supreme Court held that the Second Amendment confers ‘an individual right to keep and bear arms.’” The term, “an individual right to keep and bear arms,” appears only once in Scalia’s majority opinion in Heller I. Scalia wrote:
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms