Kavanaugh a Mixed Bag on Guns

How is the president doing on his pledge to pick “pro-Second Amendment judges”? (Photo: The White House)

USA – -(Ammoland.com)- “This week, President Donald J. Trump announced his intent to nominate Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s assumption of senior status,” the White House announced Monday. “Judge Kavanaugh has earned a reputation as a brilliant jurist with impeccable legal credentials, and he is universally respected for his intellect, as well as his ability to persuade and build consensus.”

You expect them to say that about Kavanaugh’s legal qualifications. He’s their guy.  But what does a legal expert from “the other side” have to say about him?

Yale Law School Professor Akhil Reed Amar, who “strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland,” had good things to say about the nominee [after which he has now been harassed and threatened by the left]. In The New York Times of all places…

“… Judge Kavanaugh … prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an ‘originalist’ judge … also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted…”

That’s encouraging. Coming from a Hillary supporter, it’s also suspect. So what can gun owners glean about Kavanaugh’s disposition toward issues most affecting “legal” recognition of the right to keep and bear arms?

National Review outlined an important consideration:

“Enforcing the Second Amendment. Kavanaugh argued (in dissent) that the District of Columbia’s ban on possession of most semi-automatic weapons and its registration requirement for all guns violated the Second Amendment.”

His views could be critical if and when SCOTUS hears a case challenging state bans on what they pejoratively term “assault weapons.” It still doesn’t get us to a birthright “to keep and bear … ordinary military equipment … that … could contribute to the common defense,” but it’s a better starting place than a court with many of the previous “Republican” picks on the bench (case in point: John Paul Stevens).

Giving further insight, attorney and author David Kopel offers perhaps the most comprehensive analysis of Kavanaugh’s Second Amendment inclinations.

“Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right,” Kopel notes. Significantly, he appears supportive of a rationale for licensing, and does not appear to agree that “in common use” should apply to arms a militia would need to be an effective counterforce, not just to what is commercially “popular” for civilian uses.

At least Kavanaugh admits that even though he might personally support some “gun control” goals and laws, “our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy.”

Judge Brett Kavanaugh
Judge Brett Kavanaugh

And there’s another threat critical for gun owners to fight against (even if some use a hollow “single issue” excuse to avoid addressing it) that NRO touches on:

“Ruling for the American worker. In dissents in immigration-related cases, Kavanaugh has opined that illegal-immigrant workers are not entitled to vote in union elections and that ‘mere economic expediency does not authorize an employer to displace American workers for foreign workers.’ He has also recognized the government’s interest in ‘supporting American farmers and ranchers against their foreign competitors.’”

That still comes up short from the real concern, “amnesty” and a “pathway to citizenship”. All credible polling and real-world experiences (think “California”) show that will result in millions of new anti-gun Democrat voters, unchallengeable majorities in the legislatures, and confirmations of anti-gun activist judges who will uphold whatever infringements come before them.

Going back to Professor Amar’s assessment at The Times, he offers an interesting “compromise.” While normally wary of such “offers,” this one has merit:

“Each Senate Democrat will pledge either to vote yes for Judge Kavanaugh’s confirmation — or, if voting no, to first publicly name at least two clearly better candidates whom a Republican president might realistically have nominated instead (not an easy task). In exchange for this act of good will, Democrats will insist that Judge Kavanaugh answer all fair questions at his confirmation hearing.”

I like it, since questioning such candidates is something I advocate despite a tradition of giving judicial nominees a pass.

Think of one job you’ve ever applied for where you’d have gotten it if you decided to play coy with the hiring managers. While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation, there’s no reason why general principles of understanding should be off-limits.

As such, here are questions gun owner rights advocates should rightfully want to see answered:

  • What did the Founders mean by “A well-regulated militia”?
  • What did the Founder mean by “being necessary to the security of a free State”?
  • What did the Founders mean by “the right of the people to keep and bear arms”?
  • What did the Founders mean by “shall not be infringed”?
  • How can past Supreme Court opinion specifying protected arms as those being “in common use at the time” not apply to the types of firearms needed for militia service?

I’d also add a tangentially-related question, one not directly part of the “single issue,” but one that nonetheless is being used to undermine it:

What Constitutional basis is there to “secure the blessings of Liberty to ourselves and our Posterity” by exercising protective measures over who may enter the country and who may become a citizen?

Don’t expect any of these to be asked.  And do expect the Democrats to pull every filthy trick in the book to try and destroy Judge Brett Kavanaugh and bring pain to him and to his family.


About David Codrea:David Codrea
David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.
In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.

  • 11 thoughts on “Kavanaugh a Mixed Bag on Guns

    1. It doesn’t really matter what the Supreme Court judges believe, or what their “feelings” are in regards to the 2nd Amendment. Congress is the only body that can pass law.
      The pro-2A decisions in the past have done very little to advance gun rights. We still have the 1934 and 1968 Acts completely unaltered on the books.
      Any law that bars my ability to defend myself with whatever tool technology can provide is not valid.
      I think the best we can hope for is a court that everyone knows won’t further gun control, so the leftists will just stop pushing the issue.

    2. Nothing has really changed. I am surprised, though. I was betting it was going to be Mike Lee, and then the Governor of Utah would appoint Mittens to fill his senate seat, giving Mittens the edge to win the upcoming US Senate election. Everyone needs to keep in mind that the POTUS is a one-term wonder who will most likely be neutralized by the mid-term elections. Keep training, prepping, and securing needful things. Bleib ubrig.

    3. I wish these idiot judges would stop thinking that they have an obligation to apply precedent. Stare Decisis is BS. Almost the entirety of 20th century rulings on the Commerce Clause were a repudiation of the 19th century rulings. Scotus wasn’t given power to amend the constitution which is what devotion to precedence equates to. Look at this moron Kavanaugh, and all the other legal idiots, adopting the phrae “in common use” as if it is a limitation of the RKBA. No – it is a defacto amendment and should be a sentence of sedition to an justice that utters it. It matters nit, from a legal perspective, if they think is common sense or necessary to restrict nuclear armthe fes from private ownership. Obviously the framers couldn’t forsee such weapons. Well, thehn we need to amend the constitution to give the feds authority to do so if we decide that is the prudent reaction to scientific advancement. Not to wink and nod and pretend that the feds have power they do not.

      Kavanaugh is a wolf in sheeps clothing. He will expand the police state. He should not be confirmed and should have no support by gun owners and anyone who opposes mass surveillance.

    4. “Judge Kavanaugh’s text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, …” I think that this is an understatement.
      If Kavanaugh supports licensing, then he believes that Constitutional Rights can be treated differently. He will not be voting for us. We want Don Willett.

    5. In 1775 the people in the Boston area formed an illegal and unauthorized militia they called The MINUTEMEN. Although most of these men were enrolled in the British militia these people used the arms they had and were able to secret away on their farms and out-buildings.
      When they learned that the British Army was going to collect the stores of arms in the arsenals at Concord and Lexington the Minutemen rallied and stopped the confiscation of the arms.
      A year later the Continental Congress wrote the Declaration of Independence to explain why they revolted against the King of England. They said that it was the right and they duty of people to use force if necessary to throw off a tyrant . To that end the people needed arms.
      In 1788 when the Congress wrote the Constitution they included Militia in Article 1, Section 8 This was a select, organized militia under the authority of the Congress.
      Patrick Henry and other objected that a government controlled militia was not adequate protection of the rights of the people in case a tyrant came to power. Patrick Henry objected to ratification of the Constitution unless the rights of te people were better secured.
      Thus the Bill of Rights was written to secure the rights of the people to form an unorganized militia, like the Minutemen, in order to assure the security of liberty and freedom.
      The lessons of 1775 were uppermost in mind. British laws that controlled the location of gunpowder and arms in general made it possible for the government to confiscate the arms the people would need to secure their liberties. They probably thought that if the government could not collect the arms the possibility of a tyrant tising was reduced.
      So they wrote what became our Second Amendment.
      It was adopted with one comma and can be read as a question and an answer.
      A well regulated militia [Minutemen] being necessary to the security of a free state [not tyranny] [?]
      “the right of the people to keep and bear arms shall not be infringed.”
      Question mark substituted for the comma and Minutemen inserted for clarity as to what kind of militia is protected.

    6. Let the Demon-Craps pull their usual tricks. They have no ground to stand on, but the quick sand that they have created for them selves. I just love to watch them drown in their own excrement.

    7. The Second Amendment – A clarification

      As written: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

      Clarified: “In as much as a well regulated (armed) Militia is necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

      or: “The right of the people to keep and bear Arms shall not be infringed since a well regulated (armed) Militia is necessary to the security of a free State.”

      Definition of Militia:

      The American Heritage Dictionary of the English Language

      1 (a): A citizen army as distinct from a body of professional soldiers.

      (b): The armed citizenry as distinct from the regular army.

      2: The able-bodied male citizens in a state who are not members of regular armed forces, but who are called to military service in cases of emergency.

      3: The whole body of physically fit male citizens eligible by law for military service.

      Merriam Webster’s Deluxe Dictionary, Tenth Collegiate Edition, Reader’s Digest Assoc.

      1 (a): A part of the organized armed forces of a country liable to call only in emergency.

      (b): A body of citizens organized for military service.

      2: The whole body of able-bodied male citizens declared by law as being subject to call to military service.

      1. Good note, that “regulated” means armed (and other good things). To regulate something is to make it work properly and well, as is done, for example, by a mechanical or electrical regulator. It has taken the likes of government to make everyone thing that to “regulate” means to restrict and oppress until nothing can work well. Interesting, also, that the likes of overreaching government assumes the role of deciding how much the [not to be infringed] Second Amendment may be applied by the people to limit overreaching government. Any conflict of interest, there, or upside down reasoning?

    8. It doesn’t matter who Trump nominates the democrats are going to fight tooth and nail to keep them off the court, they will throw out that RoeVWade will be overturned which is their big worry.
      My pick would have been Kethledge he seems more like a common man who hunts and has a conceal carry license.

    9. You are missing the point. The REAL question is who would HiLIARy have nominated to the SCOTUS? ANYBODY Trump nominates has to be better than a Dumbocrat offering. The perfect is the enemy of the good. P.S. Predicting how SCOTUS justices will rule is tricky. Just look up what President Eisenhower thought about Earl Warren, both before and after Warren sat on the SCOTUS bench.

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