The Kavanaugh Court is an Existential Threat to Gun Violence Reduction Efforts
“Justice Kavanaugh your life and family are not ruined. Try having a child murdered by a weapon that you refer to as ‘common use.’ You will get through this and hug both of your children tonight.” — Parkland survivor Fred Guttenberg
The national nightmare of Brett Kavanaugh’s ascension to the Supreme Court has dire consequences for the health and welfare of millions of Americans on a range of different issues. One area of particular concern is the ongoing, high rate of gun violence in the United States (to include daily mass shooting horrors). Kavanaugh — the serial perjurer and subject of multiple allegations of sexual assault — has made it clear he would allow no innovation in firearm regulation and roll back what few gun laws America still has on the books. If he remains on the Court, it seems certain he will join conservative majorities in rulings that cost lives by further bastardizing the meaning of the Second Amendment.
Before Justice Anthony Kennedy retired to make way for Kavanaugh, the Supreme Court rejected a series of cases from lower courts dealing with gun regulations including state assault weapons bans and permitting systems for individual who carry concealed guns in public. After Justice Antonin Scalia’s expansive rewriting of the Second Amendment in the landmark 5–4 ruling in D.C. v. Heller (2008) — which ignored our Founders’ writings and debates about the Second Amendment, choosing instead to exalt gun laws in the antebellum South — Kennedy was apparently unwilling to provide a fifth vote for further efforts to erode public safety. Brett Kavanaugh has no such compunctions.
In a 2011 dissent in a second Heller case before the U.S. Court of Appeals for the D.C. Circuit [Heller v. D.C., commonly known as Heller II], then-judge Kavanaugh articulated a radical and dangerous view of the Second Amendment. While echoing propaganda from gun lobby groups like the National Rifle Association and National Shooting Sport Foundation (NSSF), Kavanaugh opined that the District of Columbia’s popular assault weapons ban and firearms registration law are unconstitutional.
His analysis of D.C.’s assault weapons ban ignored entirely the damage that semiautomatic battlefield rifles like the AR-15 are capable of doing in civilian settings. Because AR-15s and similar weapons are now in “common use” among Americans, Kavanaugh insisted (using an arbitrary test Justice Scalia created in the first Heller case), they must be constitutionally-protected. “Common use” was not defined, but assault weapons wouldn’t seem to be in common use in the United States under any reasonable definition. The NRA and gun industry have been mass-marketing and selling assault weapons since the late 1980s, but in 2014 only 22% of Americans reported owning a gun of any kind, much less an assault weapon. Assault weapons constitute a small percentage of the 393 million privately held firearms in the United States.
Kavanaugh also declared the District’s firearm registration system unconstitutional in Heller II because he believes it is inconsistent with the “history and tradition” of firearms regulation in America.¹ Again, it’s difficult to see how this conclusion was reached. Gun registration requirements are as old as the Militia cited in the text of the Second Amendment. As historian Saul Cornell has pointed out, state governments kept lists of privately-owned weapons required for service in our Founders’ militia. Kavanaugh also ignored the 1934 National Firearms Act (NFA), a federal law that requires registration of fully-automatic machine guns held by civilians. The law has been an overwhelming success — machine guns have rarely been recovered from crime scenes in the 80+ years since it was enacted.
While Kavanaugh has never publicly commented on concealed carry, during his time on the U.S. Court of Appeals for the D.C. Circuit he did embrace a lower-court ruling that would have struck down the District’s permitting system as unconstitutional (pending appellate review). In a dissent in the case of Grace v. District of Columbia, Kavanaugh was sympathetic to the plaintiff’s view that the city could not require “good reason” from residents before issuing them permits to carry concealed firearms in public.²
A financially-struggling NRA plunked down $1 million to pay for TV ads to get Kavanaugh confirmed to the Supreme Court. They knew exactly what they were paying for — a Justice who will reliably vote against gun regulation at each and every turn. Any faith in Chief Justice John Roberts to moderate the Court, or Justice Neil Gorsuch to tarnish his pro-gun bonafides (e.g., Gorsuch has already indicated he believes the Second Amendment confers an individual right to carry a pistol in public) seems to me to be tragically misplaced.
Reform efforts aimed at addressing gun violence (more than 38,000 gun deaths and somewhere between 25,000 and 115,000 injuries per year in the United States³) face an existential threat in the Kavanaugh Court. The practical effect of the Heller I ruling in 2008 was not great (Scalia’s ruling did not affect a single policy being worked on by an American gun control organization), but the gun rulings of the Kavanaugh Court will be devastating. The new conservative majority will cast off important, democratically-enacted laws aimed at disarming violent individuals and demilitarizing our society. They will accomplish this by writing further fiction about the Second Amendment that ignores the original intent of our Founders (who never would have used the amendment as a cudgel to beat off attempts to save American lives being lost to an epidemic of violence). The interests of the gun industry will be prioritized over the safety of citizens. George Zimmermans and Adam Lanzas across America will be emboldened, their violence facilitated. Americans’ most fundamental freedoms (our inalienable rights to life and liberty, the First Amendment right to assemble peacefully in the public space, etc.) will be forfeit in favor of a legally sanctioned gun culture in which the last (white) man standing is king.
Many Americans are questioning the legitimacy of government in the era of Donald Trump, voter suppression, and (unrestrained) foreign interference in our elections/politics. Brett Kavanaugh, with his perjury and partisan threats, further weakened Americans’ faith that our current government represents them. When government repeatedly fails its most basic duty, to protect its citizens,⁴ the people must answer to a higher power and act in order to preserve life and prevent suffering. Gun rulings by the Kavanaugh Court that present a threat to our communities and families should be met with bold and widespread acts of nonviolent, civil disobedience. This should include elected/appointed officials refusing to enforce Court rulings they know will lead to further gun violence, and accepting the legal consequences for their actions.
As other observers have pointed out, this is not an ideal way for democratic government to function, but creative, outside-the-box solutions are needed to prevent the further destruction of American families and communities. The GVP movement should begin planning for the Kavanaugh Court’s rulings now, as pro-choice advocates have. That means communicating about our government’s gross dereliction of duty concerning public safety, preparing advocates to engage in direct nonviolent action (like we saw on Capitol Hill during the Kavanaugh hearings), and offering a clear and inspiring vision of a future America with fewer guns and safer communities.
1. The conservative majority in Heller I took no issue with the District of Columbia’s firearm registration requirement. The majority opinion authored by Justice Scalia ordered the city to allow plaintiff Dick Heller to register his handguns so he could keep them at home.
2. In D.C., permit applicants weren’t allowed to simply say “I want to defend myself.” They were required to cite an actual threat (i.e., from a stalker, because their job requires them to deliver millions in cash, etc.).
3. The figure for gun deaths is from CDC’s WISQARS fatal injury data for the most recent year available (38,658 gun deaths in 2016). Estimates of annual gun injuries range from 25,000 (National Impatient Sample) to over 115,000 (CDC WISQARS).
4. The very first line of the Constitution indicates that one of the chief purposes of the document is to “insure domestic Tranquility.”