He reminded his brethren on the D.C. Circuit that “our task as a lower court here is narrow and constrained by precedent. We need not squint to divine some hidden meaning from Heller I about what tests to apply. Heller I was up-front about the role of text, history, and tradition in Second Amendment analysis—and about the absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulations.”
Kavanaugh reasoned that semi-automatic rifles, unlike automatic “machine guns,” have been considered lawful for civilian possession for over 100 years, and are commonly owned by law-abiding citizens today. In fact, the Supreme Court already stated in the 1994 case of Staples v. United States that semi-automatic firearms (and in that particular case, the AR-15) “traditionally have been widely accepted as lawful possession.” Their recent prohibition by a handful of jurisdictions is therefore, according to Kavanaugh, not rooted in history and tradition, as required by Heller I.
He also correctly noted the majority’s flawed logic regarding the public safety implications of semi-automatic rifles. Even if the majority assumed that Heller I permitted interest balancing or the assessment of costs and benefits of particular gun regulations, how could the prohibition of semi-automatic rifles be constitutional under a cost-benefit analysis when the prohibition of handguns—which are used in the vast majority of gun-related crimes and therefore present a much greater risk to the public—is constitutionally forbidden?
Unlike the majority, Kavanaugh refrained from illogically twisting precedent to validate his preferred public policy. He explained that his “view on how to analyze the constitutional question here under relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy.”
Brett Kavanaugh’s Defense of Second Amendment Is Hardly ‘Extremist’
Kavanaugh reasoned that semi-automatic rifles, unlike automatic “machine guns,” have been considered lawful for civilian possession for over 100 years, and are commonly owned by law-abiding citizens today. In fact, the Supreme Court already stated in the 1994 case of Staples v. United States that semi-automatic firearms (and in that particular case, the AR-15) “traditionally have been widely accepted as lawful possession
He also correctly noted the majority’s flawed logic regarding the public safety implications of semi-automatic rifles. Even if the majority assumed that Heller I permitted interest balancing or the assessment of costs and benefits of particular gun regulations, how could the prohibition of semi-automatic rifles be constitutional under a cost-benefit analysis when the prohibition of handguns—which are used in the vast majority of gun-related crimes and therefore present a much greater risk to the public—is constitutionally forbidden?
Unlike the majority, Kavanaugh refrained from illogically twisting precedent to validate his preferred public policy. He explained that his “view on how to analyze the constitutional question here under relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy.”
Brett Kavanaugh’s Defense of Second Amendment Is Hardly ‘Extremist’