Judge Kavanaugh on the Second Amendment
Judge Brett Kavanaugh has written exactly one opinion, a dissent, dealing with the Second Amendment. Senators should question him carefully, albeit respectfully, about it. It is not a mainstream opinion. It proposes an interpretation of Second Amendment rights that is both unorthodox and also inadequate to deal with the issues our country confronts today and in the future. The opinion issued in the case of Heller v. District of Columbia involved challenges to the District of Columbia’s gun registration requirements and its ban on semi-automatic assault weapons. Judge Kavanaugh concluded that both regulations were unconstitutional. How Should Courts Review Second Amendment Challenges To Gun Regulations? A foundational issue in the case was the methodology courts should employ in reviewing gun regulations alleged to violate the Second Amendment. As a court of appeals judge, Judge Kavanaugh was required to construe and apply Justice Antonin Scalia’s 2008 majority opinion in District of Columbia v. Heller (a different case involving the same two parties), the Supreme Court decision construing the Second Amendment to protect the right to keep and bear arms for self-defense purposes. (To avoid confusion, throughout this article I will refer to the Supreme Court’s 2008 decision as “ Heller,” and Judge Kavanaugh’s 2011 opinion as “Judge Kavanaugh’s opinion.”) To be fair to Judge Kavanaugh, Justice Scalia’s opinion in Heller was hardly a model of clarity. But it could be interpreted in a way that locates Second Amendment rights within the conventional framework of fundamental rights jurisprudence. This is the […]
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