Our D.C. Bureau Gun laws could be targeted
WASHINGTON — Having barely survived a scorched-earth Senate confirmation, Justice Brett Kavanaugh is now in position to tilt the Supreme Court to the right on a variety of issues — including a possible rollback of Connecticut’s assault-weapons ban.
At a minimum, Kavanaugh appears to be a vote for the Supreme Court to consider cases involving the court’s landmark Heller decision, in which the justices said the Second Amendment includes the right to own a handgun inside the home for self-protection.
But the 2008 ruling, authored by conservative champion Justice Antonin Scalia, who died suddenly in 2016, also said Second Amendment rights are “not unlimited.”
While guaranteeing rights to gun owners, its language gave cover to states like Connecticut — which in 2013 enacted one of the nation’s strictest gun-control statues as a response to the Sandy Hook Elementary School mass shooting.
Practically ever since, the Supreme Court has declined to hear fresh appeals by gun-rights advocates. In 2016, the court refused to consider appeals of post-Newtown laws from both Connecticut and New York.
But all that may change with the addition of Justice Kavanaugh.
“There’s no telling for sure what Justice Kavanaugh will do, but I believe he will look at the text of the Constitution and the original intent of the Second Amendment,” said Scott Wilson, president of the Connecticut Citizens Defense League, which helped pursue the challenge to the state’s 2013 legislation until it hit the Supreme Court roadblock two years ago. “I am more optimistic we will get a favorable ruling from Justice Kavanaugh than we would with a justice appointed by Hillary Clinton, had she won the election.”
Gun-violence-prevention advocates who backed the 2013 law view Kavanaugh’s elevation to the court as a predictable “I-told-you-so” moment.
“If Justice Kavanaugh decides to repay his debt to the NRA and act as an activist judge for the NRA, then the Connecticut assault weapons ban could be overturned,” said Po Murray, chair of the Newtown Action Alliance. “If that happens, then all parents in Connecticut should fear sending their children to schools, malls, movie theaters, concerts, or other public spaces.”
The National Rifle Association publicly supported confirmation of Kavanaugh.
Voice of dissent
His position on guns and gun limitations harkens back to a dissent Kavanaugh authored in 2011 as a federal appeals court judge here in Washington.
In that case, he disagreed with the majority’s ruling that the District of Columbia could ban assault weapons and still be in line with the Heller decision’s finding that the D.C. ban on all handgun possession violated the Second Amendment.
While recognizing limits on Second Amendment rights, Scalia wrote that courts should be guided by a distinction between firearms “in common use” and those that are “dangerous and unusual.”
In his 2011 dissent, Kavanaugh came down on the side of viewing semi-automatic rifles such as the AR-15 and AK-47 as being in “common use” — indistinguishable from the semi-automatic handguns approved under Heller.
“Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller,” Kavanaugh wrote in his dissent.
During Senate hearings prior to the blow-up over charges of sexual assault that nearly derailed his confirmation, Kavanaugh said he was simply interpreting the Constitution and the Heller precedent as he saw it.
“There are millions and millions and millions (of semi-automatic rifles in the U.S.),” said Kavanaugh. “As a judge, my job was to follow the Second Amendment decision of the Supreme Court, whether I agreed with it or disagreed with it.”
But, he added, he too was concerned by the threat to schools.
“Of course, the violence in schools is something that we all detest and want to do something about,” he said.
‘Common’ vs. ‘dangerous’
Connecticut originally banned assault weapons in 1993. But in 2013 months after the Newtown tragedy, the Connecticut legislature expanded the list of specific barred firearms and narrowed the number of features such as pistol grips or flash suppressors that would trigger the ban. It also banned large-capacity magazines, imposing a 10-round limit.
But the debate over what is in “common use” and what is “dangerous and unusual” continues.
Gun-rights group have argued the term “assault weapons” is a misnomer, pointing to the distinction between military versions capable of fully automatic, machine gun-like fire and civilian versions that are single shot per trigger pull.
The Newtown-based National Shooting Sports Foundation has long used the term “modern sporting rifle” to describe the AR-15 or AK-47.
The NSSF declined to comment on what might happen to Connecticut’s ban now that Kavanaugh is on the court.
But gun-control advocates including virtually all of Connecticut’s congressional delegation counter that firearms designed as weapons of war have no place in civilian hands.
“Assault weapons are not commonly used to hunt animals or for self-defense,” said Murray, of Newtown Action Alliance. “They are commonly used by mass shooters to hunt innocent human beings.”
Two conservative justices now on the court, Clarence Thomas and Neil Gorsuch, have expressed willingness to consider gun cases anew, with Thomas last year complaining of a “distressing trend” in the court that views the Second Amendment as a “disfavored right.”
Kavanaugh could well provide the third vote to bring a new case before the court, such as one percolating through the federal appeals court in Boston, challenging a strict gun-control law in Massachusetts that parallels the one in Connecticut.
But it takes four justices to decide whether the court hears a case or not. It remains to be seen if either of the court’s two remaining conservative justices would provide that vote.