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President Trump picks Judge Brett Kavanaugh for the Supreme Court!

And it is a *wonderful* choice. While serving as an attorney in the Department of Justice, I argued a number of cases before Judge Kavanaugh, winning most, losing a few. Win or lose, I found his demeanor and questions from the bench during an argument and his written opinions and dissents to be outstanding.

In deportment and bearing, he is the epitome of judicial temperament. He is a "judge's judge" who is held in high esteem in legal circles throughout the United States. We hope that he is confirmed quickly by the Senate and will take his place on the bench of the Supreme Court when it convenes for arguments this next Term in October.

On Second Amendment issues, his dissent in Heller v. DC, 670 F.3d 1244 (D.C. 2011) (Heller II), was especially powerful. Indeed, Judge Kavanaugh's dissent in Heller II actually contributed to the later partial victory in Heller v. DC, 801 F.3d 264, 275 (D.C. Cir. 2015) (Heller III), where the D.C. Circuit struck down several of DC's registration requirements, such as the requirement that guns be re-registered every three years and the requirement that the guns actually be brought to the police station for registration. The Heller III court noted that "we agree with the statement of our colleague in Heller II that the asserted interest in police protection 'leaves far too many false negatives to satisfy... intermediate scrutiny," quoting Heller II, 670 F.3d at 1295 (Kavanaugh, J., dissenting). Similarly, Justice Thomas and Justice Scalia cited Judge Kavanaugh's Heller II dissenting opinion in dissenting from the denial of certiorari in Jackson v. City and County of San Francisco, 135 S.Ct. 2799, 2801 (2016).

Most importantly, it is hard to find a better articulation of the central issue facing Second Amendment litigation than found in Judge Kavanaugh's Heller II dissent. In that case, a majority of a three-judge panel of the D.C. Circuit sustained DC's ban on so-called "assault weapons" as well as DC's basic registration requirement for handguns. In dissenting from those rulings, Judge Kavanaugh stated: “Are gun bans and regulations to be analyzed based on the Second Amendment's text, history, and tradition[,] ... [o]r may judges re-calibrate the scope of the Second Amendment right based on a judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right? ... In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Heller II, 670 F.3d at 1271 (Kavanaugh, J., dissenting). A Supreme Court decision embracing that test would do away with the judge empowering tiers of scrutiny that has so far largely frustrated the protection of Second Amendment rights in the lower courts.

Mark W. Pennak, MSI President


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