This week, President Trump nominated Judge Brett Kavanaugh to serve on the Supreme Court. What we know about his interpretation of the Second Amendment gives me grave concern. If he is confirmed, Supreme Court jurisprudence is likely to shift dramatically – and dangerously -- for the next thirty years

In his only major gun case, Judge Kavanaugh took a position so extreme that it has been rejected by every other court that has considered it: he held that that it is unconstitutional for Americans to prevent sales of military-style assault weapons to the general public. Perhaps even more disturbing, Judge Kavanaugh seemed to think the public safety concerns that have led most Americans to want to keep AR-15s and AK-47s off our streets were basically irrelevant. If it was up to Judge Kavanaugh, he would have struck down Washington, DC’s ban on assault weapons.

Fortunately, it wasn’t. He was out-voted by the two other judges—both appointed by Republican presidents—hearing the case. Kavanaugh’s views were totally out-of-step with other courts; all four federal circuit courts of appeal that have considered assault weapons bans have upheld them. The Supreme Court has never held otherwise. But that could change if Kavanaugh is confirmed. There is a case working its way through the courts that could bring this issue to a head quickly. But before we go there, let me explain one more analytical step.

The Supreme Court chooses its own cases. Lawyers ask the Court to consider overturning decisions by the appeals courts, and the Justices vote on whether to take them up or not. It’s called granting a writ of certiorari. If four of the nine Justices vote to “grant cert.", the Court puts it on the docket and schedules it for oral argument. Otherwise, the Supremes don’t consider it.

In the past decade, very few gun cases have garnered the magic four votes. The only Second Amendment cases heard were in 2008, when the Supreme Court, in the Heller case, held that law-abiding, responsible DC residents had a constitutional right to have a handgun in the home, and in 2010, when the Court extended that case to the states. Besides that, the Court just considered three cases construing gun laws, two on domestic violence, one on straw purchases. That’s basically it when it comes to recent Supreme Court cases about guns.

But not for lack of trying. Quite recently, the Court denied cert on cases about an assault weapons ban (Kolbe, 2017), standards for carrying hidden loaded guns in public (Peruta, 2017), and whether felons should still be able to have guns (Binderup, 2017).

If Kavanaugh joins the Court, the votes to grant cert could change. Justice Kennedy, whom Kavanaugh would be replacing, rarely voted to grant cert., and most Court-watchers speculate that he was a moderating force on gun issues. Kavanaugh might have a very different approach. After all, he was appointed by a president who got more than $30 million from the NRA and who has spoken – twice – at the NRA’s annual convention, something no president had done since the 1980s. Kavanaugh might vote to take up a wide range of gun and Second Amendment cases, given his expansive view of what the Second Amendment means.

So that takes us back to assault weapons and a specific case. Massachusetts has a ban on assault weapons, and it was challenged recently in federal court in Massachusetts. That case is called Worman v. Baker. In April, Judge William Young issued a 47-page opinion, walking carefully through the legal standards and relying on the late Justice Scalia’s views about the Second Amendment repeatedly. He decided that the Massachusetts ban on assault weapons was perfectly consistent with the Second Amendment. The losing side –which thinks people have a constitutional right to an AR-15 and similar guns – appealed the decision about a month ago. That will take a few months to resolve. But when that decision is rendered, it is highly likely that if the appeals court agrees with Judge Young, the losing side will ask the Supreme Court to grant cert. It is also highly likely that if the appeals court disagrees with Judge Young, the losing side will ask the Supreme Court to grant cert. So either way, the Supreme Court is likely to be asked about the Massachusetts law on assault weapons.

If Kavanaugh joins the Court, he may well be the crucial fourth vote to grant cert, potentially along with Justices Thomas, Gorsuch, Alito, and/or Thomas. So his presence on the Court means it’s quite likely the court will start granting cert on gun cases. And he has already told us that he thinks the Second Amendment means that people can have weapons of war in their personal possession. It’s a position that has been rejected by all the appeals courts that have considered this issue.

That’s why Brady opposes his nomination.