Thread by @adamwinkler

Unlike some Supreme Court nominees, Kavanaugh has articulated his view of the Second Amendment and the Heller case. His views, as laid out in Heller 2, are well to the right of the majority of federal appeals court judges to rule on 2A issues, GOP or Dem appointed. /Thread

This is not to criticize Kavanaugh as much as to explore his approach to 2A issues, about which I am being asked a lot about these days. His views should thrill the @NRA -- and conversely worry gun safety groups like @Everytown.

Kavanaugh's position on the 2A is also filtered somewhat by the fact that he was applying Heller, which was open to some interpretation. Nevertheless, Kavanaugh adopted an especially expansive reading of Heller --one rejected by the overwhelming majority of federal judges.

Kavanaugh is a Second Amendment outlier in that he argues:
1. only longstanding gun laws are permissible;
2. judges should not consider public safety (eg how many lives will be saved) when considering the constitutionality of gun laws

In Heller 2, Kavanaugh wrote that regulations on the sale and possession of guns were permissible if longstanding. DC's registration law, because it was not the type of law we often see, was therefore unconstitutional.

If only longstanding gun laws survive, lawmakers can't innovate to develop novel solutions to gun violence. Would Kavanaugh vote to strike down extreme-risk protection orders, which are a new and promising reform to take guns from people known to be at risk? Not longstanding.

Another important law that is not "longstanding" is restricting guns from domestic abusers. If only longstanding laws survive, these bans should be voided. The framers didn't punish domestic violence at all (and indeed legally permitted it in many circumstances).

What about a law banning 3D printed guns without metal pieces? Are those laws longstanding? Hard to see how. It's problems like these that have led the overwhelming majority of federal appeals court judges to reject the requirement that a gun law be longstanding.

Kavanaugh voted to strike down a ban on assault weapons, or military-style semi-automatic rifles. This was also contrary to the majority of federal appeals court judges, which have upheld bans on assault weapons.

Part of the problem, in Kavanaugh's view, was again that assault weapons bans were not longstanding.

It is true that restrictions on copycat military rifles are relatively novel -- only the last few decades. Most courts have said that may be reason to subject the bans to heightened scrutiny. Kavanaugh said that was reason enough to strike the bans.

Frankly, I think bans on assault weapons are bad policy and don't do anything to reduce the daily death toll against guns. There is a pretty good case to be made against these laws -- as @DavidKopel has made. It isn't, though, that the laws fail a longstandingness test.

There is also a level of generality issue. Bans on semi-automatic rifles may not be longstanding but the significant commercial demand for the ones with special military features and large-capacity magazines is new, which prompted regulation.

Once the commercial market for military style semi-automatic rifles developed, there were efforts to ban them and restrict them. Those efforts have failed and where there were once some semi-auto rifles with large-capacity magazines there are now 10s of millions.

And why isn't the question whether bans on military-style rifles are like previous bans on firearms thought at the time to be especially dangerous. In 1800s, some states banned concealable firearms. In 1930s, regulation of machine guns and sawed-off shotguns.

If you accept this higher level of generality, then assault weapons bans might have a stronger tradition behind them. All this is to say that defining your tradition is a big part of the originalist approach.

Kavanaugh also argues that courts should not consider the death toll from gun violence when considering the constitutionality of gun laws. He argues that there is no room to weigh the government interests in public safety. All that matters is whether the law is longstanding.

By refusing to apply any form of heightened scrutiny to gun laws under the Second Amendment, Kavanaugh's approach makes no room for considering the government's interests in public safety or saving lives.

Once again, Kavanaugh's approach to the Second Amendment is contrary to the majority of federal appeals court judges, who believe you have to apply a skeptical scrutiny of gun laws but one that considers the government interests.

Federal appeals court judges across the country have unified around applying heightened/intermediate scrutiny to gun laws. This allows innovation while still enabling judges to second-guess lawmakers and insure they are following the Constitution. Kavanaugh disagrees.

Kavanaugh is not alone in his view that the Second Amendment only permits longstanding gun laws & assault weapons bans are unconstitutional. And his reading of Heller is not implausible. But his views are definitely on the tail end of the bell curve of federal judges. /End