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July 19, 2018

What an Originalist on the Supreme Court Means for Gun Rights


By Larry Keane

Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court to replace the retiring Justice Anthony Kennedy has sent the message spin doctors into overdrive. If you believe the headlines, Kavanaugh as the next associate justice will result in millions dead, destruction of rights and critics literally conjuring up R.E.M’s “The End of the World as We Know It.”

We in the firearms industry are right to be concerned about who sits on the bench of the highest court in the nation. We should also be concerned about the heated rhetoric that drowns out reasonable conversations. Much like Justice Neil Gorsuch, we look to Judge Kavanaugh’s public comments, writings and judicial record to understand the sort of jurist he is and what his addition to the bench would mean for Second Amendment rights.

Who is he?

Judge Kavanaugh graduated Yale College with honors in 1987 and Yale Law School in 1990. He clerked for two judges on two separate U.S. Circuit Courts of Appeals and for Justice Anthony Kennedy on the U.S. Supreme Court, the same seat for which he is nominated.

Judge Kavanaugh worked in private practice and public service for President George W. Bush as Senior White House Associate Counsel and later as Staff Secretary.

He was confirmed in 2006 by the U.S. Senate to the U.S. Circuit Court of Appeals for the D.C. Circuit, including “yea” votes from 16 currently sitting senators.

In His Own Words

Judge Kavanaugh described his judicial beliefs at his nomination from the White House’s East Room. “My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law,” he explained. “A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

Sitting on the nation’s highest court means justices have to make tough calls. The protests on the steps of the U.S. Supreme Court upon his nomination are a hint of the divisive nature of the decisions justices must make. Judge Kavanaugh said he’s aware, but not swayed, saying “you need to tune out the crowd noise.”

Judge Kavanaugh’s guiding principle is the law, not popular or personal opinions.

“We can’t be buffaloed, influenced, pressured into worrying too much about transient popularity when we’re trying to decide the case based on long-term principle that is at issue in a particular case,” he told Catholic University’s Columbus School of Law in 2015. “We can’t just rule for the most popular side.”

What Does Originalism Mean?

When President Trump nominated Judge Kavanaugh, he praised his predecessors, Justice Kennedy and the late Justice Antonin Scalia, saying that Judge Kavanaugh would apply the Constitution as it is written. This is what originalism means, that the law means what it says, just as it is written, in context with the meaning of the words used at the time.

What should we expect with the Second Amendment?

Judge Kavanaugh has already rendered decisions on firearms cases. He dissented in the Heller II decision, arguing the 2008 District of Columbia v. Heller decision authored by Justice Scalia protected private ownership of modern sporting rifles, called D.C. registration requirements unconstitutional and the list of banned firearms “haphazard” writing that it provided “no particular explanation or rationale for why some made the list and some did not.”

Need more?

Judge Kavanugh’s open admiration for Justice Scalia puts to rest any lingering doubts. In 2016, he delivered remarks to the Antonin Scalia Law School on the school’s namesake. He summed up Justice Scalia’s lasting example of the role of a Supreme Court justice.

“I just loved the guy,” he said. “To me, Justice Scalia was and remains a hero and a role model. He thought carefully about his principles, he articulated those principles, and he stood up for those principles. As a judge, he did not buckle to political or academic pressure from the right or the left….”

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