Ladd Everitt: The Kavanaugh Court is an Existential Threat to Gun Violence Reduction Efforts
“Justice Kavanaugh your life and family are not ruined. Try having a child murdered by a weapon that you refer to as ‘common use.’ You will get through this and hug both of your children tonight.” — Parkland survivor Fred Guttenberg
The national nightmare of Brett Kavanaugh’s ascension to the Supreme Court has dire consequences for the health and welfare of millions of Americans on a range of different issues. One area of particular concern is the ongoing, high rate of gun violence in the United States (to include daily mass shooting horrors). Kavanaugh — the serial perjurer and subject of multiple allegations of sexual assault — has made it clear he would allow no innovation in firearm regulation and roll back what few gun laws America still has on the books. If he remains on the Court, it seems certain he will join conservative majorities in rulings that cost lives by further bastardizing the meaning of the Second Amendment.
Before Justice Anthony Kennedy retired to make way for Kavanaugh, the Supreme Court rejected a series of cases from lower courts dealing with gun regulations including state assault weapons bans and permitting systems for individual who carry concealed guns in public. After Justice Antonin Scalia’s expansive rewriting of the Second Amendment in the landmark 5–4 ruling in D.C. v. Heller (2008) — which ignored our Founders’ writings and debates about the Second Amendment, choosing instead to exalt gun laws in the antebellum South — Kennedy was apparently unwilling to provide a fifth vote for further efforts to erode public safety. Brett Kavanaugh has no such compunctions.
In a 2011 dissent in a second Heller case before the U.S. Court of Appeals for the D.C. Circuit [Heller v. D.C., commonly known as Heller II], then-judge Kavanaugh articulated a radical and dangerous view of the Second Amendment. While echoing propaganda from gun lobby groups like the National Rifle Association and National Shooting Sport Foundation (NSSF), Kavanaugh opined that the District of Columbia’s popular assault weapons ban and firearms registration law are unconstitutional.
His analysis of D.C.’s assault weapons ban ignored entirely the damage that semiautomatic battlefield rifles like the AR-15 are capable of doing in civilian settings. Because AR-15s and similar weapons are now in “common use” among Americans, Kavanaugh insisted (using an arbitrary test Justice Scalia created in the first Heller case), they must be constitutionally-protected. “Common use” was not defined, but assault weapons wouldn’t seem to be in common use in the United States under any reasonable definition. The NRA and gun industry have been mass-marketing and selling assault weapons since the late 1980s, but in 2014 only 22% of Americans reported owning a gun of any kind, much less an assault weapon. Assault weapons constitute a small percentage of the 393 million privately held firearms in the United States.
Kavanaugh also declared the District’s firearm registration system unconstitutional in Heller II because he believes it is inconsistent with the “history and tradition” of firearms regulation in America.¹ Again, it’s difficult to see how this conclusion was reached. Gun registration requirements are as old as the Militia cited in the text of the Second Amendment. As historian Saul Cornell has pointed out, state governments kept lists of privately-owned weapons required for service in our Founders’ militia. Kavanaugh also ignored the 1934 National Firearms Act (NFA), a federal law that requires registration of fully-automatic machine guns held by civilians. The law has been an overwhelming success — machine guns have rarely been recovered from crime scenes in the 80+ years since it was enacted.
While Kavanaugh has never publicly commented on concealed carry, during his time on the U.S. Court of Appeals for the D.C. Circuit he did embrace a lower-court ruling that would have struck down the District’s permitting system as unconstitutional (pending appellate review). In a dissent in the case of Grace v. District of Columbia, Kavanaugh was sympathetic to the plaintiff’s view that the city could not require “good reason” from residents before issuing them permits to carry concealed firearms in public.²
A financially-struggling NRA plunked down $1 million to pay for TV ads to get Kavanaugh confirmed to the Supreme Court. They knew exactly what they were paying for — a Justice who will reliably vote against gun regulation at each and every turn. Any faith in Chief Justice John Roberts to moderate the Court, or Justice Neil Gorsuch to tarnish his pro-gun bonafides (e.g., Gorsuch has already indicated he believes the Second Amendment confers an individual right to carry a pistol in public) seems to me to be tragically misplaced.
Reform efforts aimed at addressing gun violence (more than 38,000 gun deaths and somewhere between 25,000 and 115,000 injuries per year in the United States³) face an existential threat in the Kavanaugh Court. The practical effect of the Heller I ruling in 2008 was not great (Scalia’s ruling did not affect a single policy being worked on by an American gun control organization), but the gun rulings of the Kavanaugh Court will be devastating. The new conservative majority will cast off important, democratically-enacted laws aimed at disarming violent individuals and demilitarizing our society. They will accomplish this by writing further fiction about the Second Amendment that ignores the original intent of our Founders (who never would have used the amendment as a cudgel to beat off attempts to save American lives being lost to an epidemic of violence). The interests of the gun industry will be prioritized over the safety of citizens. George Zimmermans and Adam Lanzas across America will be emboldened, their violence facilitated. Americans’ most fundamental freedoms (our inalienable rights to life and liberty, the First Amendment right to assemble peacefully in the public space, etc.) will be forfeit in favor of a legally sanctioned gun culture in which the last (white) man standing is king.
Many Americans are questioning the legitimacy of government in the era of Donald Trump, voter suppression, and (unrestrained) foreign interference in our elections/politics. Brett Kavanaugh, with his perjury and partisan threats, further weakened Americans’ faith that our current government represents them. When government repeatedly fails its most basic duty, to protect its citizens,⁴ the people must answer to a higher power and act in order to preserve life and prevent suffering. Gun rulings by the Kavanaugh Court that present a threat to our communities and families should be met with bold and widespread acts of nonviolent, civil disobedience. This should include elected/appointed officials refusing to enforce Court rulings they know will lead to further gun violence, and accepting the legal consequences for their actions.
As other observers have pointed out, this is not an ideal way for democratic government to function, but creative, outside-the-box solutions are needed to prevent the further destruction of American families and communities. The GVP movement should begin planning for the Kavanaugh Court’s rulings now, as pro-choice advocates have. That means communicating about our government’s gross dereliction of duty concerning public safety, preparing advocates to engage in direct nonviolent action (like we saw on Capitol Hill during the Kavanaugh hearings), and offering a clear and inspiring vision of a future America with fewer guns and safer communities.
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ENDNOTES
1. The conservative majority in Heller I took no issue with the District of Columbia’s firearm registration requirement. The majority opinion authored by Justice Scalia ordered the city to allow plaintiff Dick Heller to register his handguns so he could keep them at home.
2. In D.C., permit applicants weren’t allowed to simply say “I want to defend myself.” They were required to cite an actual threat (i.e., from a stalker, because their job requires them to deliver millions in cash, etc.).
3. The figure for gun deaths is from CDC’s WISQARS fatal injury data for the most recent year available (38,658 gun deaths in 2016). Estimates of annual gun injuries range from 25,000 (National Impatient Sample) to over 115,000 (CDC WISQARS).
4. The very first line of the Constitution indicates that one of the chief purposes of the document is to “insure domestic Tranquility.”
And My Response:
My response to Ladd’s piece should in no way be taken as any kind of personal criticism for what he does or what he says. Ladd has been an extremely effective advocate for gun control and I trust he will continue in that vein. Nevertheless, I believe that those who agree with Ladd (including myself) that gun violence is an irreparable stain on American society, as well as a tragedy of uncalled-for proportions for those whose families, friends and neighborhoods have been impacted by shootings or the threats of shootings, still need to hear different opinions and different points of view. Unless, of course, if Ladd believes that only he should be defining the argument for everyone else, which I am sure is not the case.
Ladd says he is writing about the ‘Kavanaugh court.’ But actually, it happens to be the Roberts court, and Ladd is somewhat selective in explaining how and why the Roberts court has dealt with the issue of guns. In fact, it is not accurate to assume that Kennedy represented a ‘swing’ or ‘soft’ vote on gun issues, and that his replacement by Kavanaugh represents a hard swing to the Right. Yes, Scalia only needed to convince 4 other justices that he could use selective historical information to rewrite legal precedent on Amendment Number Two. But in fact, not five, not four, but only two justices (Scalia and Thomas) agreed with Ladd when he says that the Court “ignored entirely the damage that semiautomatic battlefield rifles like the AR-15 are capable of doing in civilian settings.”
In 2013, a suburb of Chicago, Highland Park, banned assault rifles in their town. They didn’t ‘grandfather’ in existing guns, their law said that if you owned an AR-15 and didn’t want to get rid of it, you had to move out of town. This was the first and only time that a government jurisdiction not only banned the ownership of this gun, but also did not compensate assault rifle owners who had purchased their guns legally in prior years. In other words, Highland Park didn’t copy the Australia assault weapons ban, it also didn’t copy the Clinton assault weapons ban passed in 1994.
The law was upheld by the 7th Circuit and was then denied certiorari by the Supreme Court, with only two justices dissenting. What was the reason why the law was upheld on appeal? Because both the circuit court and then the SCOTUS agreed that the law effectively demonstrated that assault rifles were a threat to public safety, and government has a ‘compelling interest’ in protecting its citizens with properly-written laws. Incidentally, the exact, same opinion was written by the Chief Judge of the 2nd Circuit, William Skretny, who upheld Andy Cuomo’s SAFE ACT because it also was based on the idea that government had the unquestioned authority to deem certain behaviors (such as owning an AR) contrary to public safety and health. You should know, by the way, that Skretny was appointed to the Circuit Court by G. H. W. Bush.
Ladd believes that the gun violence prevention (GVP) movement should begin preparing to deal with a ‘Kavanaugh court’ by “communicating about our government’s gross dereliction of duty concerning public safety,” but to date, every time a governmental authority can show that a new gun-control law is a response to threats against pubic safety, the law has been upheld. In May, a federal trial judge upheld California’s ban on open carry, citing the testimony of none other than John Donohue:
“California relies on the expert report and testimony of Professor John J. Donohue III of the Stanford Law School. . . . Based on the evidence California has submitted, it has shown that the State reasonably could have inferred that there was a relationship between prohibiting individuals from carrying firearms openly in public and promoting and achieving the important governmental objective of public safety. That these objectives would be advanced could be inferred from Donohue’s findings that the enactment of right-to-carry laws lead to increased violent crime rates. . . .”
Could the SCOTUS, with the addition of Kavanaugh, rule on gun laws and ignore what is now a substantial group of recent decisions which supports the government’s right to determine public policy based on government’s ‘compelling interest’ to keep us safe? They might, except that even Kavanaugh’s own opinions and statements about gun control don’t actually support that point of view. Everitt claims that Kavanaugh’s minority dissent in the DC registration case (Heller II) is based on a wrongful claim about whether assault rifles are in ‘common use,’ echoing Scalia’s rationale for Constitutional protection of personally-owned weapons in 2008. He says, “ ‘Common use’ was not defined [in the Heller decision] but assault weapons wouldn’t seem to be in common use in the United States under any reasonable definition.” After all, according to Ladd, only 22% of Americans actually own guns.
For the percentage of American gun owners, Everitt cites a study from the Violence Policy Center which is based on a study by our friend Michael Siegel who published an article that correlated gun violence with gun ownership in all 50 states. But Siegel’s study used a ‘proxy’ for determining state-level gun ownership, namely, the number of gun suicides which occur in each state. Which is all fine and well if you want to believe that regression models should be considered definitive when it comes to explaining cause and effect. The bottom line is that numerous public surveys by the most credible research organizations (e.g., Pew Research) estimate national gun ownership rates at between thirty and forty percent. Not only does Ladd cherry-pick his sources to promote an argument about the Kavanaugh ‘threat’ which may or may not be true, but he certainly knows that in many states, particularly the South, the Midwest and the mountain states, gun ownership runs much higher than fifty percent.
I happen to believe, and I have said this again and again in print, that walking around with a gun in or outside of your pocket does not, as Ladd says, ‘promote domestic tranquility.’ I also agree with Ladd that the GVP should be “offering a clear and inspiring vision of a future America with fewer guns and safer communities.” But it just so happens that many Americans think that the benefit of gun ownership far outweighs the risk, despite clear evidence which points the other way.
Ladd is an effective and ardent communicator for his cause. But he might think of channeling a bit of his strength and talent to crafting a gun-control message that would appeal to gun owners rather than just preaching to his own side.
Oct 18, 2018 @ 11:31:16
Kavanaugh, in his Heller II dissent, wondered why there should be a higher bar set for AR ownership, i.e., a ban, when in fact most gun violence is committed with handguns, for which Heller I rejected a ban. Kavanaugh never precluded regulation, and neither did Heller I. Although there are many good political and personal reasons to have opposed the Kavanaugh confirmation (his cozy relationship with the GOP, for example), portraying him as somehow creating a “Kavanaugh” court which is an existential threat to American life is laughable. He is but one of nine and as Michael reminded us, even an outright taking of ARs by a community (which I stridently object to) has not been granted certiarori.
There is middle ground for the AR issue like their is for many issues if not for the current bare knuckle political winner take all paradigm. This could include regulation, which could range all the way to the restrictive “may issue” rules that SCOTUS has never overturned for handgun ownership in places like NY, CA, NJ, etc. Note that I sailed through a “may issue” permitting system in dreaded NYS but in a Republican county; also note that NY “grandfathered” existing AR owners, subject to screening, rather than stealing their guns. But the Left wants an outright ban and the Right wants no regulation at all beyond a 4473, if even that. Discussion is a waste of time in light of the virulent culture wars and Mr. Everett’s rhetoric certainly doesn’t encourage anyone to listen to the other side.
I wonder if Michael still has his Mini-14 that he used to show on his web site; a Mini is basically a “stealth” AR. Obviously, Michael and I (you can see mine on the Contributing Editors page) are existential threats to American safety. Well, maybe not. I suspect either of us could pass a rigorous background check sufficient to own these or other dratted Weapons of War. The problem is, under the current system, a nutcase eighteen year old or member of a lunatic fringe group (neo-Nazis, Antifa) with no criminal record but with a headful of bad intent can not only own but parade around with one as well, taunting the other side. The militarization of civil society is the problem, not the fact that people own guns.
As Kurt Vonnegut might say, “so it goes”
Oct 18, 2018 @ 15:43:51
p.s.. Saul Cornell (first hotlink in Mr. Everett’s piece) is, as usual, a good read. I have some caveats of course but he is a scholar in this area and I’m not. Like his peer reviewed article at that Duke U. conference, he goes way back to 14th Century England about going armed in public vs “affray”, but as history evolved and especially after Independence and the Bill of Rights (and the demise of the Divine Right stuff), individuals gained rights rather than being subject to the Crown. I think one could transfer some of those responsibilities asserted by kings to those reasonably held by local governments. That said, we have seen the expansion of individual rights under both the 1A and 2A during the 20th and 21st centuries.
Also, its my understanding that ‘well regulated” in the 2A sense meant properly functioning, disciplined, and trained rather than subject to massive regulatory law as we understand it today. But that still works. Properly functioning, disciplined, and trained militias are not made up of individuals turning guns on innocent civilians or their own wives and children. Requiring some sort of discipline, training, and objective evaluation of a citizen might not be incompatible with an individual right that is tied to the need for “a well regulated militia”.
Oct 18, 2018 @ 13:34:45
A strange approach. I would take him more seriously if he avoided hyperventilating regarding studies that are purely synthetic in their methodology. It looks like try hard, if not unmanly. Also, I find it brearth taking that he should invoke civil disobedience as a tactic to be resorted to by gvp people. Since the default result of civil disobediance is no law enforcement, that would an odd way to continue any laws that the the ussc had over turned. Besides, gun rights people always think in terms of coping with a world without rol. By definition, that it is why they keep guns for self defense. If one lived in an assuredly safe place, there would be no point.
But as long as all his studies are of the synthetic variety, he will not ever be seen as acting in good faith by the side whose mind he supposedly wants to change.
Oct 18, 2018 @ 17:24:22
Civil disobedience cuts both ways on these issues. Do we want to encourage local communities in Red states to ignore Roe v Wade/Planned Parenthood v Casey or Obergefell v Hodges? I doubt if Kim Davis is one of Mr. Everett’s heroines.
I think the nation will come around on gun violence prevention just as it did marriage equality. It just takes time.
Oct 19, 2018 @ 07:32:21
Marriage equality and the de facto legalization of mj represent the relaxation of existing laws. .. largely because of notions of live and let live. GVP goals represent the imposition of new laws and penalities into the private realm.
Oct 19, 2018 @ 11:29:54
What I was getting at was ignoring a SCOTUS ruling, not whether a ruling relaxes or tightens governmental perogatives on certain issues such as certain types of gun ownership, who one can marry, and who controls if or when someone can get an abortion.