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Brett Kavanaugh is approached by the parent of a Parkland shooting victim, Fred Guttenberg, during his Senate confirmation in Washington on Sept. 4, 2018. (Photo: Michael Reynolds / EPA)
Brett Kavanaugh is approached by the parent of a Parkland shooting victim, Fred Guttenberg, during his Senate confirmation in Washington on Sept. 4, 2018. (Photo: Michael Reynolds / EPA) 

Brett Kavanaugh's Extreme Beliefs on Gun Control Ignore the Concerns of Most Americans

The judge's consideration of only the Second Amendment’s text and history, ignoring public safety, is straight out of the gun lobby’s playbook

Hannah Shearer

 by NBC News

In the wake of the devastating Parkland shooting, teenage survivors from Marjory Stoneman Douglas High School harnessed the power of grass-roots democracy to push for change. Students and voters across the nation stood with them — and got results. Since the February shooting, 26 states have passed more than 50 new gun safety laws.

But this progress — and more — could be swept away for decades to come if the Senate gives the green light to President Donald Trump’s 53-year-old U.S. Supreme Court nominee, Brett Kavanaugh. His hostile view of gun regulations sets him apart from nearly every other federal judge in the country.

Most modern gun laws have been upheld in court by judges across the ideological spectrum. But Kavanaugh disagrees with the basic approach courts use to rule in favor of these laws.

That’s because Kavanaugh is an originalist who reads the Second Amendment to mean that guns can be regulated only in the context of early U.S. history. Under his rigid view of the Constitution, critical safety measures would be struck down just because nobody considered them in 1791, when the Second Amendment was ratified. Newer laws that take guns away from abusive husbands or partners, and from distraught or mentally disturbed individuals, could be overturned. Laws that regulate access to assault-style weapons — far more lethal than anything our Founding Fathers could have imagined — are also at risk.

Kavanaugh is an originalist who reads the Second Amendment to mean that guns can be regulated only in the context of early U.S. history.

Kavanaugh’s dangerous view of how Second Amendment cases should be decided ignores the urgent concerns of most Americans. Today, our communities are threatened by progressively deadlier shootings and increasing gun-related domestic violence. There is clear evidence that stronger gun laws protect us. But Kavanaugh would ignore these facts to focus solely on whether gun regulations are rooted in history.

In a 2011 opinion, for example, Kavanaugh dissented from the decision of two Republican-appointed judges, arguing that Washington’s gun-registration law and ban on assault weapons violate the Second Amendment. Kavanaugh’s illogical claim was that public safety should play no role in determining the constitutionality of public safety laws.

Instead, Kavanaugh wrote, judges must ignore modern public safety needs and consider only the text of the Second Amendment and early U.S. history and traditions. Although Washington has required gun registration and regulated high-capacity weapons since 1932, those laws didn’t matter to Kavanaugh.

Kavanaugh’s consideration of only the Second Amendment’s text and history, ignoring all public safety justifications, is straight out of the gun lobby’s playbook. His position goes against how virtually every federal appeals court decides Second Amendment challenges. Even Justice Antonin Scalia, one of the most conservative Supreme Court justices in modern history, endorsed some 20th-century firearm regulations like the ones Kavanaugh looks likely to strike down.

The Constitution does not force judges to ignore modern dangers and the latest research on how to keep Americans safe from violence. Other judges have rightly decided that because firearms pose a “direct risk” to people, Second Amendment analyses should reflect those risks. This isn’t a partisan issue: Judges appointed by both Democrats and Republicans have considered public safety and upheld laws designed to reduce gun deaths and injuries. Reagan appointees Douglas Ginsburg, Frank Easterbrook and J. Harvie Wilkinson, for example, all voted to uphold assault weapon bans.

Kavanaugh’s extreme take on the Second Amendment would undermine other constitutional rights as well. Everyone has the right to attend church and peacefully protest against hate groups without risk they will be shot. But Kavanaugh’s interpretation prioritizes the rights of gun owners and carriers over the rights of the many more Americans who have been threatened and traumatized by gun violence, domestic abuse and rampage shootings.

In fact, Trump’s nomination reflects his own deep ties to the NRA, which wields great influence over the administration and its policies. It’s time for Americans to reject this influence and demand a Supreme Court nominee who will respect that gun rights go hand-in-hand with the responsibility to follow the law — including the reasonable regulations that the majority of Americans andgun owners support.

Our senators now have a choice: Are they going to stand with and protect the vast majority of Americans to ensure the safety of families and communities? Or are they going to stand with Kavanaugh and the NRA?


Hannah Shearer

Hannah Shearer

Hannah Shearer is the Second Amendment litigation director at Giffords Law Center to Prevent Gun Violence.

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