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To Uphold Heller, We Need Kavanaugh on the Supreme Court

Thursday, September 13, 2018

To Uphold Heller, We Need Kavanaugh on the Supreme Court

n May 20, 2016, candidate Donald Trump told the NRA members gathered at the NRA-ILA Leadership Forum in Louisville, Ky., “I will never let you down, I will protect the Second Amendment.” At that moment, the president’s power to nominate U.S. Supreme Court justices was forefront in the minds of NRA members. With the nomination of U.S. Court of Appeals for the District of Columbia Judge Brett M. Kavanaugh to replace the retiring Supreme Court Justice Anthony Kennedy, now-President Trump continues to live up to his promise.

All gun owners owe Kennedy a measure of gratitude. In 2008, Kennedy provided a crucial fifth vote for Justice Antonin Scalia’s majority opinion in the case District of Columbia v. Heller, and in 2010 he sided with the majority in McDonald v. Chicago. The Heller case recognized that the Second Amendment protects an individual right to keep and bear arms, and McDonaldincorporated that right to the states.

However, since those decisions, the Supreme Court’s willingness to address restrictions that violate the Second Amendment has stagnated. This has allowed many of the lower courts and state and local legislators to flout the clear intent of these landmark decisions.

Several members of the Supreme Court have expressed their frustration on this topic. In 2015, Scalia joined Justice Clarence Thomas’ dissent from the denial of certiorari in Friedman v. Highland Park, a case challenging a local ban on commonly owned semi-automatic firearms. In a 2016 concurrence to a per curiam decision in Caetano v. Massachusetts addressing the Massachusetts Supreme Court’s willful misapplication of Heller, Justice Samuel Alito implored the court to take action to defend its Second Amendment precedents. In 2017, Justice Neil Gorsuch joined Thomas’ dissent from the denial of certiorari in Peruta v. California, a case challenging California’s discretionary carry licensing scheme.

As a judge on the D.C. Circuit, Kavanaugh demonstrated his deep understanding of the Heller decision in a dissent in the 2011 case Heller v. District of Columbia (Heller II), a challenge to D.C.’s ban on commonly owned semi-automatic rifles and gun-registration regime.

In many Second Amendment cases, the lower courts have opted to analyze firearm restrictions using tiered balancing tests, weighing the government’s interests against the right to keep and bear arms. While some might claim to faithfully apply such tests, those tests have frequently been used to thwart the intent of Heller.

In truth, Heller demands that courts determine whether a firearm restriction is “longstanding,” and in the case of gun bans, whether the firearm is “in common use.”

In Heller II, Kavanaugh pointed out that Heller requires courts to “assess gun bans and regulations based on text, history and tradition.” Kavanaugh explained that the Second Amendment protects “weapons that have not traditionally been banned and are in common use by law-abiding citizens,” and that semi-automatic rifles are therefore protected. 
On registration, Kavanaugh noted, “[b]ecause most of the Nation has never required—and even now does not require—registration of all lawfully possessed firearms, D.C.’s strict registration law is not ‘longstanding’” and therefore, “violates the Second Amendment as construed by the Supreme Court.”

The NRA’s opponents are upset with Kavanaugh’s firm and clear application of the Heller decision, and are intent on obstructing his confirmation. For following Supreme Court precedent, Michael Bloomberg’s Everytown claimed Kavanaugh holds a “dangerous view of the Second Amendment,” Giffords labeled Kavanaugh a “radical,” and the Brady Campaign vowed to “fight this nomination tooth and nail.” Ignoring the plain language of Heller, and Scalia’s subsequent actions in Friedman, Sen. Chris Murphy, D-Conn., erroneously declared that Kavanaugh’s opposition to “assault weapon bans” was “far to the right of even the late Justice Scalia.”

U.S. Senate Minority Leader Chuck Schumer, D-N.Y., has told the press that he will “oppose [Kavanaugh] with everything I’ve got.” Further, with a one-vote Republican majority in the Senate, Kavanaugh’s supporters have no margin for error.

That is why it is imperative that you contact your senators to let them know that you support Trump’s nomination of Kavanaugh to the Supreme Court. Moreover, as leaders in the fight for freedom, it is incumbent upon us to encourage our like-minded friends and family members to do the same.

NRA members played an integral role in putting Trump in position to make this crucial nomination. The active support of NRA members is just as vital to ensuring we seize this historic opportunity. For information on how you can help, visit nraila.org.

Chris W. Cox Brett Kavanaugh

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.