U.S. Supreme Court nominee Brett M. Kavanaugh said on Wednesday that gun violence in schools “is something we all detest,” but that he based a key dissenting opinion in favor of gun rights on high court precedent.
Meanwhile, when given a chance to respond at the Senate confirmation hearing to a controversy over his encounter Monday with the father of a Parkland, Fla., shooting victim, Kavanaugh more generally responded that while he bases his decisions on the law, “I do so with an awareness of the facts and the real-world consequences.”
On the guns and school violence issue, Kavanaugh was pressed during his first day of questioning by Sen. Dianne Feinstein of California, the ranking Democrat on the Senate Judiciary Committee, about his views that certain semiautomatic “assault weapons” could not be prohibited.
Kavanaugh referred to his 2011 dissent to a decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia upholding certain gun restrictions, in which he would have struck down a ban on semi-automatic rifles because they are in common use by law-abiding citizens, a standard set with respect to handguns under the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller.
“I never thought this would happen in our country, that someone would bring a semi-automatic weapon into a school and just mow down children and staff,” Feinstein told Kavanaugh. “So I’ve been very interested in your thinking on assault weapons.”
Kavanaugh said that under the Supreme Court’s Heller decision, and a followup 2010 decision known as McDonald v. City of Chicago, which applied the reasoning in Heller to the states, he concluded that semi-automatic rifles could not be distinguished “as a matter of law” from the semi-automatic handguns upheld by the high court.
“Semi-automatic rifles are widely possessed in the United States,” Kavanaugh said.
Feinstein asked him how he could reconcile his views “with the hundreds of school shootings, using assault weapons, that have taken place in recent history. How do you reconcile that?” (She cited no source for that figure. School shootings remain statistically rare and those involving semi-automatic rifles even rarer. Here is a link to Education Week‘s School Shootings tracker.)
“Senator, of course the violence in schools is something we all detest, and want to do something about,” Kavanaugh said. “And there are lots of efforts I know underway to make schools safer. I know at my girls’ school they do a lot things now that are different from just a few years ago, in terms of trying to harden the school and make it safer for everyone.”
Kavanaugh’s two daughters attend a Roman Catholic K-8 school in Washington, not far from the family’s home in Chevy Chase, Md.
“Handguns and semi-automatic rifles are weapons used for hunting and self-defense, but as you say senator, as you rightly say, they are used in a lot of violent crime,” Kavanaugh said. “They cause a lot of deaths. Handguns are used in lots of crimes that result in death, and so are automatic rifles.”
“That’s what makes this issue difficult,” Kavanaugh continued. “I understand the issue. But as a judge, my job as I saw it, was to follow the Second Amendment opinion of the Supreme Court, whether I agreed with it or disagreed with it.”
Feinstein then moved on to another issue, abortion rights.
Guns a Flashpoint
It was the second day that Kavanaugh’s views on gun rights and their relation to school violence were a flashpoint at the hearing.
On Tuesday, the father of a student killed in the Parkland incident sought to shake hands and address Kavanaugh at the lunch break and believes he was rebuffed. Fred Guttenberg, whose 14-year-old daughter Jaime was among the victims of the Feb. 14 shootings at Marjorie Stoneman Douglas High School that killed 17 students and staff members, was a guest of Feinstein at the hearing.
Kavanaugh’s White House handlers say that security agents intervened before the nominee realized who Guttenberg was. Guttenberg told Education Week that he did identify himself, and he was interviewed by the police after the encounter before being allowed to remain at the hearing. The incident went viral, with Guttenberg appearing on cable TV Monday night. He also retweeted a comment by Ron Klain, a longtime Democratic political aide, that said “I’ve managed Supreme Court nominations before. If I were in charge of the Kavanaugh nomination, he’d be having breakfast with @fred_guttenberg.”
On Wednesday, Sen. Lindsey Graham, D-S.C., asked Kavanaugh what he might want to say to the Parkland father. Kavanaugh did not directly address his encounter with Guttenberg.
“I want to reassure everyone that I base my decisions on the law,” Kavanaugh said. “But I do so with an awareness of the facts and the real-world consequences. I have not lived in a bubble. And I understand how passionately people feel about these issues, and l understand how people are affected by issues. And I understand the difficulty people have in America. I understand, for example, the situation of homeless people, because I see them regularly when I am serving meals.”
Kavanaugh says he learned from reading To Kill a Mockingbird in 6th grade the lesson of “standing in the shoes of others.” He said he keeps his school version of the Harper Lee novel in his judicial chambers in Washington.
Photo: Brett M. Kavanaugh holds up a worn copy of the Constitution of the United States as he testifies before the Senate Judiciary Committee on Sept. 5 during the second day of his confirmation hearings to replace retired Justice Anthony M. Kennedy.-- Andrew Harnik/AP
A version of this news article first appeared in The School Law Blog.