Bench Memos

Law & the Courts

Judge Kavanaugh’s Record on Second Amendment/Gun Rights

(Jonathan Ernst/Reuters)

In follow-on litigation to the Supreme Court’s landmark ruling on the Second Amendment in D.C. v. Heller, a D.C. Circuit panel majority, consisting of two Republican appointees, upheld the District of Columbia’s ban on possession of most semi-automatic rifles and its registration requirement for all guns in D.C. Judge Kavanaugh dissented (in Heller v. D.C. (2011)). An excerpt from his dissent:

In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)

D.C.’s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, “longstanding” gun regulations in the United States. Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory recordkeeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual. Under Heller’s history- and tradition-based test, D.C.’s registration requirement is therefore unconstitutional.

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