One moment from the first day of Senate hearings for Brett Kavanaugh’s nomination to the US Supreme Court gained outsize attention: when Kavanaugh seemingly refused to shake the hand of the father of a mass shooting victim.
Based on the video from C-SPAN, Fred Guttenberg, whose daughter died in the Parkland, Florida, school shooting, approached Kavanaugh and extended his hand, and Kavanaugh turned his back to the man and walked away.
“I guess he did not want to deal with the reality of gun violence,” Guttenberg later tweeted, recalling the encounter.
We don’t know everything that happened. Kavanaugh may not have known who Guttenberg was. We don’t know what the two men said to each other, or what they were thinking. It all could have been a misunderstanding, an awkward social situation easily misinterpreted from far away.
Video of the Guttenberg-Kavanaugh exchange. (via CSPAN) pic.twitter.com/3qx05dwaD1— Kyle Griffin (@kylegriffin1) September 4, 2018
But given Guttenberg’s advocacy for gun control, the moment has nonetheless put a spotlight on Kavanaugh’s views on the Second Amendment and guns. And guns were the first issue raised by Sen. Dianne Feinstein (D-CA) on Wednesday, during the second day of hearings.
While much of the attention around Kavanaugh’s nomination has gone to his positions in other areas (like abortion and executive power), there is evidence that Kavanaugh would go along with a conservative-majority Supreme Court that wants to once again reinterpret the Second Amendment to expand gun rights in America.
This deals with an issue that could soon become very relevant to the Supreme Court, too: While the Court has rejected recent questions about the Second Amendment in the past few years, the lower courts have been handing down a lot of rulings on the issue. It could be just a matter of time until one of these controversial decisions rises to the country’s highest court.
Kavanaugh seems ready to expand gun rights
The best evidence of Kavanaugh’s views comes from what has been described as a sequel to the 2008 Supreme Court ruling in District of Columbia v. Heller, which for the first time interpreted the Second Amendment to protect an individual, instead of collective, right to bear arms.
The original Heller decision struck down a law in Washington, DC, that banned handguns. The sequel, known as Heller II, was an attempt to undo DC gun laws that banned semiautomatic rifles (characterized as assault weapons), required the registration of handguns in a database, and prohibited gun magazines with more than 10 rounds.
Heller II never ended up in front of the Supreme Court. But it did end up in front of the US Court of Appeals for the District of Columbia, where Kavanaugh currently resides as judge. While the court upheld DC’s laws, Kavanaugh wrote a dissent that can help illuminate his views on guns and the Second Amendment.
Kavanaugh rejected the use of a test that balanced the state’s interest in public safety with the right to bear arms. Instead, he called on gun laws to be weighed based on “text, history, and tradition” and “by appropriate analogues thereto when dealing with modern weapons and new circumstances.” In short, Kavanaugh’s test asks whether a gun law or regulation has been historically or traditionally accepted, instead of deciding whether a local, state, or federal government’s interest in public safety outweighs constitutional protections for gun ownership.
On the historical and traditional grounds, Kavanaugh argued that the ban on semiautomatic rifles and handgun registration requirements are unconstitutional. He reasoned that semiautomatic rifles “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.” Similarly, he claimed that the “[r]egistration of all lawfully possessed guns — as distinct from licensing of gun owners or mandatory recordkeeping by gun sellers — has not traditionally been required in the United States and even today remains highly unusual.”
Kavanaugh did punt on one issue, saying he would remand DC’s ban on magazines with more than 10 rounds to a lower court for fact-finding. “In order to apply Heller’s test to this prohibition, we must know whether magazines with more than 10 rounds have traditionally been banned and are not in common use,” he wrote.
His interpretation here is really a small-c conservative interpretation of gun laws, allowing policies that have been historically okay in America while rejecting new laws that attempt to go further and impose new restrictions on firearms. (For a range of takes on Kavanaugh’s dissent, I recommend articles from the Bloomberg Editorial Board, Volokh Conspiracy, and SCOTUSblog.)
Kavanaugh’s dissent followed some of the reasoning used by Justice Antonin Scalia in the majority opinion for the original Heller. While the Supreme Court struck down DC’s handgun ban and declared an individual right to bear arms, it justified this by characterizing DC’s law as historically and traditionally anomalous while clarifying that gun laws that have historical or traditional precedent in the US are still constitutionally allowed.
“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” Scalia wrote.
Indeed, Kavanaugh himself acknowledged that the Supreme Court’s original Heller ruling “largely preserved the status quo of gun regulation in the United States.”
Still, Kavanaugh’s test would not only solidify the controversial decision of Heller but could also present new challenges: Would a test gauging a law based on historical or traditional standards allow any ban on assault weapons? Would it allow licensing requirements, particularly the more stringent, expansive licensing rules in Massachusetts? What, exactly, are the limits of history and tradition?
Kavanaugh alone may not shift the balance of power on these questions if they do come to the Supreme Court. After all, the justice he would replace, Anthony Kennedy, ruled with the conservative majority on Heller. But Kavanaugh’s rise to the Court would at least cement the justices’ recent reinterpretation of the Second Amendment.
The Second Amendment has been reinterpreted
For all the talk about how history and tradition can protect an individual right to bear arms, the reality is that, historically, the Second Amendment has been seen as protecting not an individual right but a collective one — within the context of a militia. It’s only recently that the Second Amendment has been reinterpreted to protect an individual right to bear arms, making it much more difficult to regulate guns.
The collective approach, Fordham University historian Saul Cornell previously told me, came out of a Cincinnatus view toward guns and defense — a reference to the legendary Roman general who, according to the story (and possibly myth), went back to farming instead of attempting to seize more power after he led the Romans to victories. This was seen as a republican ideal, in which someone can serve his country for the greater good before going back to his normal life.
This kind of republican value was embedded in American perspectives at the time, so the founders made sure to enshrine it in the Constitution. But it only preserved the collective right to own firearms insofar as able-bodied men needed the weapons to help defend their state and country.
Courts and legal scholars widely accepted this for decades.
Consider previous Supreme Court decisions: In 1939, the Court unanimously ruled in United States v. Miller that Congress can ban sawed-off shotguns because that weapon was of no use in a well-regulated militia, making it clear that the right to bear arms was inseparable from the role of a militia.
Justice James McReynolds wrote in the majority opinion:
The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.
That only changed in 2008’s District of Columbia v. Heller, when the Court concluded that “the Second Amendment conferred an individual right to keep and bear arms.”
This was in part a result of decades of campaigning by gun rights activists, particularly the National Rifle Association (NRA), to change how the public views the Second Amendment.
As Carl T. Bogus, a researcher at the Roger Williams University School of Law, noted in a 2000 law review article, before 1970, “a total of three [law review journal] articles endorsed the individual right model and twenty-two subscribed to the collective right view.” He added, “From 1970 to 1989, twenty-five articles adhering to the collective right view were published (nothing unusual there), but so were twenty-seven articles endorsing the individual right model.”
At least 16 of the individual rights model articles “were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations, although they did not always so identify themselves in the author’s footnote.”
By the 1990s, the tide had changed: “At least fifty-eight law review articles endorsing the individual right view would be published during the 1990s (compared to twenty-nine favoring the collective right position).”
It can be easy to underestimate the impact of these kinds of journal articles. Many people may wonder who even reads law review journals. The answer, however, is legal scholars, lawyers, judges, and politicians — and these people then permeate their ideas in popular media and in their day-to-day work. Over time, that can lead to a big shift in public opinion and policy.
The Supreme Court’s new reading of the Second Amendment reflects that. And Kavanaugh would at least keep that new reading in place, if not expand it further in favor of gun rights.