Brett Kavanaugh Said Banning Assault Rifles Would Be Like Banning Speech

The Supreme Court nominee said there's no ‘constitutional’ difference between them. Victims know there’s a life-or death difference though.


Photo Illustration by The Daily Beast

If you hear cheers coming from the NRA, that is because President Trump’s pick for the Supreme Court has flatly declared that an assault rifle ban is unconstitutional.

Judge Brett Kavanaugh has even gone so far as to contend that banning assault rifles would be akin to violating one of our most fundamental rights.

“A ban on a class of arms is not an ‘incidental’ regulation,” he wrote in 2011 dissenting opinion as a judge on the Court of Appeals for the District of Columbia. “It is equivalent to a ban on a category of speech.”

The case, known as Heller II, sprang from The District of Columbia v. Heller, in which the U.S. Supreme Court knocked down Washington, D.C.’s blanket ban on handguns in the home.

Gun-rights people sought to extend the ruling to assault weapons. The majority of the Court of Appeals upheld the assault-weapons ban. Kavanaugh was one of two appeals court judges who disagreed.

“In Heller, the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are Constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens,” he wrote. “There is no meaningful or persuasive constitutional distinction between semiautomatic handguns and semiautomatic rifles.”

As The Daily Beast noted after a previous mass shooting, a distinction between semi-automatic handguns and assault rifles is established by a law of another kind, this one a general law of physics:

K.E. = 1/2MV²

Kinetic energy (K.E.) equals one half the mass (M) of an object times the square of the velocity (V). Kinetic energy—which is measured in Joules—increases exponentially with velocity.

A 9-mm semi-automatic pistol has a muzzle velocity of 1,247 feet per second, imparting the bullet with the kinetic energy of 467 Joules.

An AR-15 has a muzzle velocity of 3,330 feet per second and imparts the bullet with 1,854 Joules.

That means a bullet fired from an AR-15 strikes with approximately four times the kinetic energy of one fired from a semi-automatic handgun.

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The handgun bullet is deadly enough, tearing through whatever it encounters in the body. The quadrupled force of the AR-15 generates an accompanying shock wave that spreads the destruction outside the bullet’s actual path. The effect was memorably described in The Atlantic by a radiologist named Dr. Heather Sher, who helped treat victims of the Valentine’s Day mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.

Such dispassion can be taken as evidence of an admirable judicial temperament. When it concerns magazines for assault rifles used to perpetrate horrors including the massacre of children, the better description is insanity.

“The tissue destruction is almost unimaginable. Bones are exploded, soft tissue is absolutely destroyed. The injuries to the chest or abdomen—it’s like a bomb went off,” Sher wrote.  “One of the trauma surgeons opened a young victim in the operating room, and found only shreds of the organ that had been hit by a bullet from an AR-15, a semi-automatic rifle that delivers a devastatingly lethal, high-velocity bullet to the victim. Nothing was left to repair—and utterly, devastatingly, nothing could be done to fix the problem. The injury was fatal.”

Even if he had witnessed such carnage, Kavanaugh would likely stick to his finding in Heller II that what really matters is that assault rifles, like handguns, “had not traditionally been banned and were in common use.”

‘The [Supreme] Court emphasized the role of history and tradition; it rejected not only balancing but also examination of costs and benefits; it disclaimed the need for difficult empirical judgments,” he wrote of the reasoning behind the Heller ruling by the high court he now hopes to join.

Never mind that our history and tradition is coming to include one mass shooting after another in which the devastating difference between handguns and assault rifles is demonstrated on the innocent. The “costs” in 2013 included 6-year-old Jesse Lewis, who was in his first-grade classroom at Sandy Hook elementary school when his teacher was shot to death by a madman armed with an assault rifle.

The madman’s weapon then jammed, giving Jesse a moment when he could have fled and saved himself. Jesse instead demonstrated a far more important component of our history and tradition than contemplated in Heller, an impulse that is the essence of America’s true greatness. He used the moment to call to his classmates.


Run they did, even as the madman turned the gun on Jesse and demonstrated the fatal effect of .223 bullets striking a child with 1,854 Joules of kinetic energy. The other youngsters escaped and kept running until they reached a yellow frame house just past the school grounds.

“We can’t go back to school,” one of them told the homeowner, Gene Rosen. “Our teacher is dead.”

A wooden plaque posted outside attested to the year the house was built.


That was 30 years before the Declaration of Independence, 45 years before the Second Amendment. The founding fathers would surely have been horrified to learn that the provision they drafted to ensure a well-regulated militia now enables a madman to walk into a school with a weapon of war and murder a total of 20 other children between the ages of six and seven, along with six adults.

The magnitude of the carnage demonstrated another difference between semi-automatic pistols and assault rifles; the size of the magazines. The madman at Sandy Hook was able to fire 30 rounds without reloading.

But Kavanaugh wrote in his dissent that he could not form an opinion on the ban of magazines holding more than 10 bullets.

“In order to apply Heller’s test to this prohibition, we must know whether magazines with more than 10 rounds have traditionally been banned and are not in common use,” he wrote. “Evidence presented to the District Court on the history and prevalence of magazines of more than 10 rounds would be helpful to the proper disposition of that issue.”

Such dispassion can be taken as evidence of an admirable judicial temperament.

When it concerns magazines for assault rifles used to perpetrate horrors including the massacre of children, the better description is insanity.

If you want to honor our history and tradition, remember Jesse.