Last night, President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to the U.S. Supreme Court, to fill the seat left open in the wake of Justice Anthony Kennedy’s retirement. The nomination (Trump’s second to the U.S. Supreme Court) is likely to have a lasting impact on U.S. law because Judge Kavanaugh is only 53 years old, meaning that he could serve on the U.S. Supreme Court for several decades (Justice Ruth Bader Ginsburg is 85 years old and assumed her seat in 1993).
Although it is difficult to predict how judges will rule on controversial issues once they have been appointed to the Supreme Court, Judge Kavanaugh’s record suggests that he supports robust Second Amendment rights and is likely to support the individual right to keep and bear arms that the Supreme Court held is protected by the Second Amendment in District of Columbia v. Heller (2008) (“Heller I”). In District of Columbia v. Heller (2011) (“Heller II”), Judge Kavanaugh dissented from a decision upholding extremely restrictive gun control laws enacted by the District of Columbia, namely, laws that placed onerous requirements for the registration of all firearms and a ban on the possession of most semi-automatic rifles. In his dissenting opinion, Judge Kavanaugh wrote that there is no historical precedent for registering firearms: “Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory record-keeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual.” Moreover, Judge Kavanaugh explained that “semi-automatic rifles have not been traditionally banned and are in common use today” by law-abiding citizens and, therefore, are constitutionally protected for the same reasons that the Supreme Court had held in Heller I that the possession of semi-automatic handguns is constitutionally protected.
As you may recall from our post addressing Justice Kennedy’s retirement, Justice Kennedy was a part of the five-justice majority decision in Heller I. The confirmation of Judge Kavanaugh should – as confirmed by his dissent in Heller II – preserve a five-justice majority in favor of a robust Second Amendment and the protection of an individual right to keep and bear arms.