Brett Kavanaugh, Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court, is a conservative activist on gun issues, and, in particular, on AR-15s. His nomination to the nation’s highest court represents payback to the NRA, a group that spent more than $30 million to help install Trump in the White House, money that is under a cloud of suspicion of having come from Russian interests.
Despite claims of financial distress, the NRA is now championing Kavanaugh, reportedly spending more than a million dollars for an ad campaign to rally grassroots support for his confirmation. “The NRA strongly supports Judge Brett Kavanaugh,” declared Chris W. Cox, executive director of the gun group’s political arm, revealing the NRA’s pro-Kavanaugh video. “It’s critical that all pro-Second Amendment voters urge their senators to confirm Judge Kavanaugh.”
On guns, Kavanaugh resembles less the justice he’s been tapped to replace than the late Antonin Scalia — a gundamentatlist who died unexpectedly while on a hunting trip in Texas. Scalia’s direct replacement, Justice Neil Gorsuch, had a sparse record on guns when nominated. But there is no mystery where Kavanaugh stands. Sen. Chris Murphy, the Connecticut Democrat, has called Kavanaugh “a true Second Amendment radical,” tweeting that, “He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream.”
As Rolling Stone has reported extensively, AR-15s are not protected by the Second Amendment. Whether a community allows ownership of military-bred weapons is a political issue — not a constitutional one. Under the Supreme Court’s landmark District of Columbia v. Heller ruling, handguns were deemed quintessential weapons of self-defense and protected by the Second Amendment. But the Heller decision, authored by Scalia, also found that “weapons that are most useful in military service — M-16 rifles and the like — may be banned.”
A 2017 ruling by the conservative 4th Circuit Court found that the M-16’s civilian cousin, the semi-automatic AR-15, can be banned on this basis, writing: “AR-15-type rifles are ‘like’ M16 rifles under any standard definition of that term.” (For more on the AR-15’s military origins read Rolling Stone’s deep-dive report, detailing how the AR-15 was designed as an offensive weapon of war, and why the semi-automatic version available to civilians is nearly as lethal as the military version, most often used by soldiers in semi-automatic mode.)
As an an appellate judge, Kavanaugh argued the Constitution covers AR-15s and other assault weapons. In a 2011 case, where the majority upheld a Washington, D.C., ban on assault rifles, Kavanaugh wrote an impassioned dissent. He did not tackle the majority’s contention that “it is difficult to draw meaningful distinctions between the AR-15 and the M-16.” Instead he played semantic games.“The AR-15 is the quintessential semi-automatic rifle that D.C. seeks to ban here,” Kavanaugh wrote. “There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles,” he continued. “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.” Kavanaugh concluded: “As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles [is] unconstitutional and may not be enforced.”
Kavanaugh’s view is a far-right outlier, even on the Supreme Court. In 2015, the Supreme Court declined to hear a case challenging an assault weapons ban by a city outside Chicago that deems AR-15s contraband and empowers police to confiscate them. Justice Clarence Thomas authored a blistering dissent, arguing the lower court was “relegating the Second Amendment to a second-class right”; that the ban on “AR-style semi-automatic rifles” was “highly suspect”; and concluding: “If a broad ban on firearms can be upheld based on conjecture that the public might feel safer… then the Second Amendment guarantees nothing.” His dissent was only co-signed by one justice: Scalia.
Kavanaugh’s position on assault rifles is indistinguishable from the NRA’s, which calls the AR-15 “America’s Rifle” and routinely couches the gun in the Second Amendment, court precedent be damned. The NRA is funded in large part by gun manufacturers, for whom assault rifles like the AR-15 are a cash cow.
Little mystery, then, that the NRA is going to bat for Kavanaugh, telling supporters in its ad: “Your right to self-defense depends on this vote.” The NRA is unabashed in promoting Kavanaugh. But it’s intriguing to note that the group is unusually quiet about promoting its own brand. The increasingly politically toxic gun lobby only discloses its connection to this PR offensive in skinny, barely legible text at the end of the ad.
The NRA will place the ad in Alabama, Alaska, Indiana, North Dakota and West Virginia — seeking to ratchet up pressure, on centrist Senators Doug Jones, Lisa Murkowski, Joe Donnelly, Heidi Heitkamp and Joe Manchin, respectively. All are potential roadblocks to Kavanaugh’s confirmation.