Brett Kavanaugh's View on the Second Amendment

Trump's Supreme Court pick says 'text, history, and tradition' key to determining constitutionality of gun laws

Brett Kavanaugh
Brett Kavanaugh / Getty Images
July 11, 2018

Brett Kavanaugh, President Trump's nominee to replace retiring justice Anthony Kennedy on the Supreme Court, has ruled on a number of gun-related cases in his time on the D.C. Circuit Court of Appeals, including a written opinion that comprehensively explains his approach to determining whether or not gun laws are constitutional.

Kavanaugh was involved at several points in the years-long fight over Washington, D.C., gun carry laws. In September 2015, he dissented in the appeals court's decision to stay a lower court ruling striking down the city's restrictive gun-carry law. In Grace v. D.C., he indicated that he believed the city's law should not be reinstated while the case continued to play out in federal court. In September 2017, Kavanaugh was among the judges who rejected a request for a full panel hearing in the same case, leaving the decision striking down the restrictive "good reason" clause in place.

Before those cases, Kavanaugh was involved in another gun-rights case, in which he wrote a detailed account of how he views the landmark Heller and MacDonald precedents affirming that the Second Amendment guarantees an individual right to keep and bear arms. In that 2011 case, Dick Heller again challenged D.C.'s gun laws. This time he argued that the city's ban on many semiautomatic firearms, including the popular AR-15 rifle, and their restrictive firearm registration system were unconstitutional. The majority ruled against him.

Kavanaugh, however, dissented from the majority and agreed with Heller.

"In my judgment, both D.C.'s ban on semiautomatic rifles and its gun registration requirement are unconstitutional under Heller," he wrote. "In Heller, the Supreme Court held that handguns—the vast majority of which today are semiautomatic—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 semiautomatic handguns and semiautomatic rifles. Semiautomatic rifles, like semiautomatic 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, semiautomatic handguns are used in connection with violent crimes far more than semiautomatic rifles are. It follows from Heller's protection of semiautomatic handguns that semiautomatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)"

"D.C.'s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, 'longstanding' gun regulations in the United States. Registration 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. Under Heller’s history- and tradition-based test, D.C.'s registration requirement is therefore unconstitutional."

After analyzing the city's ban on certain semiautomatic rifles and its registration requirements, Kavanaugh turned his focus to explaining what standard he believes the Supreme Court's Heller and MacDonald precedents demand. He argued at length that the High Court requires a "text, history, and tradition" test rather than any sort of analysis that balances government interests against constitutional rights.

"In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny," he wrote. "To be sure, the Court never said something as succinct as 'Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.' But that is the clear message I take away from the Court’s holdings and reasoning in the two cases."

He addressed a number of critiques of the test in his opinion including what to do about regulation of firearms that did not exist when the Second Amendment was first adopted. He argued that constitutional principles do not change because technology advances. Instead, he said, those same principles should continue to be applied to gun laws like they are to other areas of law affected by the passage of time.

"When legislatures seek to address new weapons that have not traditionally existed or to impose new gun regulations because of conditions that have not traditionally existed, there obviously will not be a history or tradition of banning such weapons or imposing such regulations," Kavanaugh wrote. "That does not mean the Second Amendment does not apply to those weapons or in those circumstances. Nor does it mean that the government is powerless to address those new weapons or modern circumstances. Rather, in such cases, the proper interpretive approach is to reason by analogy from history and tradition.

"The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown to the Constitution’s Framers. To be sure, applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins. But that is hardly unique to the Second Amendment. It is an essential component of judicial decision making under our enduring Constitution."

Kavanaugh said the "text, history, and tradition" test is not necessarily the most stringent possible test for gun laws and may actually allow longstanding gun laws to remain in tact where other tests may strike them down."

"The Court in Heller affirmatively approved a slew of gun laws—machine-gun bans, concealed-carry laws, felon-in-possession laws, and the like—without analyzing them under strict scrutiny," he wrote "The Court approved them based on a history- and tradition-based test, not strict scrutiny. Indeed, these laws might not have passed muster under a strict scrutiny analysis."

While Kavanaugh's opinion in the 2011 Heller case is detailed on the matter of how the Supreme Court's gun-rights precedent ought to be applied and has, in large part, earned him the endorsement of the leading gun-rights groups, it isn't a guarantee that Kavanaugh will bring the same point of view to the High Court where he will sometimes be setting precedents instead of always abiding by them. In his opinion, Kavanaugh notes that "our task as a lower court here is narrow and constrained by precedent." He went on to say that, as a longtime resident of D.C., he wasn't convinced that gun registration and regulation are necessarily bad policy.

"This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake," he said. "As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So, my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semiautomatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind."

Kavanaugh said, however, that fidelity to the Constitution and the highest court in the land are more important than how he feels about any given policy.

"But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy," Kavanaugh said.