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Donald Trump’s supreme court nominee Judge Brett Kavanaugh arrives at the US Capitol in Washington on Tuesday.
Donald Trump’s supreme court nominee Judge Brett Kavanaugh arrives at the US Capitol in Washington on Tuesday. Photograph: Joshua Roberts/Reuters
Donald Trump’s supreme court nominee Judge Brett Kavanaugh arrives at the US Capitol in Washington on Tuesday. Photograph: Joshua Roberts/Reuters

Supreme court pick could make assault weapons ban unconstitutional

This article is more than 5 years old

Brett Kavanaugh, Donald Trump’s nominee for the highest court, has a clear record of gun rights advocacy and could tip the balance

Trump’s latest supreme court pick could be the swing vote needed to tear down some of the remaining restrictions on gun rights in America, including giving citizens a constitutional right to carry a gun in public.

Gun control advocates also fear Brett Kavanaugh could push the supreme court to make it impossible to ban military-style “assault weapons”.

“We will be activating our members and tens of millions of supporters throughout the country in support of Judge Kavanaugh,” the National Rifle Association announced in a statement praising Trump’s choice.

A decade ago, the supreme court gave pro-gun advocates a sweeping victory with the Heller and McDonald decisions, which interpreted the second amendment as giving Americans an individual right to possess a gun “unconnected with service in a militia”. The decisions, which made local handgun bans unconstitutional, also reinforced that there were some limits to Americans’ gun rights.

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But since Heller, the supreme court has largely avoided clarifying the scope of the second amendment, declining to hear challenges to stricter gun control laws, including state-level assault weapon bans, or laws in more liberal states like California and New Jersey which make it extremely difficult for citizens to get permits to carry guns in public.

While the federal assault weapons ban lapsed in 2004, seven American states and the District of Columbia currently have local assault weapon bans. Since the 14 February school shooting in Parkland, Florida, which left 17 students and faculty members dead, some survivors and parents of victims are leading a push for reinstating the ban on certain military-style rifles and high-capacity ammunition magazines at the federal level.

But Kavanaugh, who has written that assault weapon bans are unconstitutional, might swing the supreme court to block that kind of measure.

In a 2011 dissent, Kavanaugh argued that the District of Columbia’s assault weapon ban was unconstitutional and that since semi-automatic rifles were “in common use” they should not be banned.

“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles,” he wrote. “Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are.”

Gun control groups are warning of the likely consequences of his nomination. Everytown for Gun Safety, which supports stricter gun laws, said Kavanaugh’s record “demonstrates a dangerous view of the second amendment that elevates gun rights above public safety” and said he “has made clear he would strike down prohibitions on the AR-15 and other assault-style weapons”.

Senator Chris Murphy, a gun control champion who represents the Connecticut families whose children were killed in the Sandy Hook school shooting in 2012, called Kavanaugh “a true second amendment radical” who “believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream”.

Brett Kavanaugh has written that bans on assault weapons such a the AR-15 rifle are unconstitutional. Photograph: Elaine Thompson/AP

The NRA, by contrast, celebrated this same aspect of Kavanaugh’s record, pointing to his “strong dissenting opinion in opposition to Washington DC’s ban on commonly owned semi-automatic firearms”.

Justice Anthony Kennedy, who Kavanaugh has been nominated to replace, was seen as a likely swing vote on gun rights; a supporter of the fundamental right to own a gun, but perhaps also a supporter of existing gun control laws.

Kavanaugh, in contrast, has a clear record of gun rights advocacy.

“We’ve never had a justice nominated to the supreme court with as much of a clear second amendment record” as Kavanaugh, said Dave Kopel, an attorney and gun rights advocate.

Kopel said it was unclear if Kavanaugh’s nomination would give gun rights advocates the votes they need on the supreme court to strike down assault weapons bans and tougher restrictions on carrying in public. While some conservative justices have publicly criticized the court’s recent choices not to take on second amendment cases, it is not clear if Chief Justice John Roberts is a strong gun rights supporter, or if he might be a moderating force.

If Kavanaugh becomes the final vote needed for a more pro-gun supreme court, then assault weapon bans and other strict gun laws could be overturned by the supreme court in as little as a year or two, said Hannah Shearer, an attorney at the Giffords Law Center to Prevent Gun Violence, which supports stricter gun laws.

“There’s multiple cases already pending challenging state and local assault weapon bans,” she said.

For gun control advocates, Kavanaugh’s past legal arguments are especially troubling because of his view that “judges can’t consider public safety considerations when they’re looking at the constitutionality of gun laws. All that matters is the history and traditional of regulating in a certain area,” Shearer said.

“There’s a lot of laws that would be a risk” under this interpretation, she said, including potentially the new “extreme risk protection order” laws that have been spreading across the country in the wake of the Parkland school shooting, and which give law enforcement and family members a way to petition to temporarily remove a person’s guns when they are at a moment of high risk or instability.

“There were lots of people who voted for Trump with great reluctance because of his personal qualities, but ultimately decided the supreme court was the most important issue,” Kopel, the attorney and gun rights advocate, said.

After the announcement, those people “can very much feel that their work was worthwhile”.

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