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Brett Kavanaugh won't keep Americans safe

Editor's Note: (John Donohue is an economist, lawyer and professor at Stanford Law School. The opinions expressed in this commentary are his own. View more opinion articles on CNN.)

(CNN) As the country reels from an unprecedented number of mass shootings in the past year, public support for prudent legislative action is about to slam into a jarring reality. Nearly every important state and local gun law is imperiled by the prospect of the elevation of Judge Brett Kavanaugh to the US Supreme Court.

In a stunning triumph of what former conservative Republican Chief Justice Warren Burger once referred to as the NRA's "fraud on the American people," the US Supreme Court's 5-4 District of Columbia v. Heller decision in 2008 ignored text, history and tradition in disregarding the Second Amendment's reference to a "well-regulated militia." It held that the amendment should instead be read to grant a private right to have a handgun in the home.

John Donohue

The late Justice Antonin Scalia's majority opinion was deemed an incoherent "snow job" by Reagan-appointed federal appeals court Judge Richard Posner. Fortunately, the lower courts have largely recognized that the decision should not be read expansively to impose a straitjacket on legislative efforts to deal with the serious US problem of gun violence -- unique among developed countries.

For example, two Republican-appointed judges on the DC Court of Appeals ruled in 2011 that the Second Amendment was not an impediment to the District's ban on assault weapons and large capacity magazines, let alone its entirely sensible gun registration regime. But Kavanaugh disagreed, writing a dissent that embodied the worst features of the historical amnesia, misguided originalism and imprudent judicial decision making of Scalia's Heller decision.

Kavanaugh's wooden opinion argued that considerations of public safety could play no role in evaluating the contours of the Second Amendment. Instead, in deciding how to address the modern problem of military-grade weaponry turned on school children, churchgoers and concert attendees, we should look back to the beliefs of constitutional draftsmen writing a half century before the advent of the first police department in the United States, and well over 100 years before the first semi-automatic rifle was manufactured. The notion that those wise statesmen intended to bar widely endorsed legislative action to deal with this modern American problem 225 years later is simply ludicrous.

The FBI recently reported that the 30 active shooter incidents in 2017 set a US record for both the highest number and the greatest number killed and wounded. A substantial majority of Americans support stricter gun laws, and nearly everyone wants universal background checks. Since the Parkland shooting left 17 students and teachers dead and many injured, a handful of states have taken much-needed strides to address gun violence, and stories abound about the new energy that students are bringing to the legislative forum on this issue.

But if Kavanaugh becomes the newest Supreme Court justice, it may all be for naught. Working largely below the public's radar, the NRA has been suing every jurisdiction from Hawaii and California to Maryland and New Jersey to overturn restrictions on large-capacity magazines and assault weapons, as well as safe storage laws and restrictions on carrying guns in public.

Yet Kavanaugh could not distinguish between an impermissible total ban on handguns, which Scalia called the "quintessential" self-defense weapons, and desirable restrictions on assault weapons with large capacity magazines, which are one of the preferred choices of mass killers. Assault weapons must be freely available to the Adam Lanzas (killed 26 in Newtown, Connecticut in December 2012), Stephen Paddocks (killed 58 in Las Vegas in October 2017, and Omar Mateens (killed 49 in Orlando, Florida in June 2016) -- all law-abiding, until they unleashed their deadly weaponry on an unsuspecting public.

According to Kavanaugh's dissent, state legislatures all around the country lose the ability to regulate weapons if they are not banned quickly enough to prevent them from being in "common use." This "common use" test defies common sense. The gun lobby has effectively promoted its modern weaponry and dominated some jurisdictions and politicians, as shown by its ability to even prevent Congress from having a vote on a universal background check system that 90% of all Americans (and a majority of NRA members) supported. Kavanaugh doesn't explain how the NRA stranglehold on these jurisdictions and politicians could then deprive all states and localities from the capacity to craft "those wise restraints that make men free."

Kavanaugh's aggrandized view of the Second Amendment, so out of step with both current trends and the will of the majority of Americans, would eliminate protective measures that keep Americans safe. As the conservative Reagan-appointed Judge Harvie Wilkinson wisely noted in voting to uphold Maryland's assault weapons ban, "To say in the wake of so many mass shootings in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny -- this would deliver a body blow to democracy as we have known it since the very founding of this nation." Kavanaugh could well be the smiling face that delivers this blow to both American democracy and well-being.

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