SCOTUS Contender Brett Kavanaugh on Gun Rights, Search and Seizure, and Mens Rea

SCOTUS Contender Brett Kavanaugh on Gun Rights, Search and Seizure, and Mens Rea

Heritage Foundation Last week I suggested that whoever replaces Anthony Kennedy on the Supreme Court probably will be more receptive to cases that challenge gun control laws on Second Amendment grounds. That certainly seems to be true of Brett Kavanaugh, who by some accounts is the leading contender for Donald Trump’s second Supreme Court nomination, which the president plans to announce on Monday night. Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia’s ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority’s use of "intermediate scrutiny," saying an analysis "based on text, history, and tradition" is more consistent with the Supreme Court’s Second Amendment precedents. The D.C. "assault weapon" ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. "The list appears to be haphazard," Kavanaugh noted. "It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not." In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller . "In Heller ," Kavanaugh noted, "the Supreme Court held that handguns—the vast […]

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