What Kavanaugh Means for the Second Amendment Fight

Announcement of Brett Kavanaugh as the replacement for Associate Justice Anthony Kennedy. (White House photo)
Announcement of Brett Kavanaugh as the replacement for Associate Justice Anthony Kennedy. (White House photo)

Washington, D.C. –-(Ammoland.com)- With the contentious confirmation hearings over, it now looks very likely that Brett Kavanaugh will be confirmed as an associate justice of the Supreme Court of the United States. This will have a major effect on the battle to protect our Second Amendment rights on several fronts.

Kavanaugh is best noted for his dissent in the October 2011 ruling in Heller v. District of Columbia. In his dissent from that ruling, Kavanaugh stated that he would have struck down DC’s ban on certain semi-automatic rifles.

“Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional,” he wrote.

The FBI’s crime statistics show that Kavanaugh accurately stated the obvious about the rarity of any rifle, much less the dreaded AR-15, being misused in a crime. But under other standards, these rifles are in common use – at least five million were in private hands as of 2016, according to CNBC.

In and of itself, this makes it very likely that we could see semi-auto bans like those in New Jersey and California struck down should the proper case come up. But the effects don’t just stop there. The fact is, once you have stronger statements from the Supreme Court on the Second Amendment, some efforts by Michael Bloomberg and others who seek to take away our rights become harder.

A repeat of Operation Choke Point will be far more risky in the sense that this time, it will be targeting a constitutional right. So will Andrew Cuomo’s shenanigans with bank regulations, for the same reason. Yes, loyal Ammoland readers know that the Second Amendment is a right, but some firm declarations by the Supreme Court – beyond the Heller and McDonald decisions – would help matters a great deal on that front.

The court rulings would also have an effect on the push for corporate gun control that is now a major concern. Put it this way, would Bank of America really close accounts of licensed dealers who sell AR-15s if the Supreme Court ruled that ownership was constitutionally protected? Would Citigroup seek to end lending to firearms manufacturers who make modern sporting rifles in those cases as well? We can’t be 100 percent sure the answer would be no, but the Supreme Court ruling would not hurt the cause of Second Amendment advocates in this fight.

There is a potential downside to the Kavanaugh nomination.

You might seem surprised about this, but hear me out. His nomination, and ruling striking down semi-auto bans, or the “may issue” approach used by New York, California, Maryland, and some other states could breed complacency among supporters of the Second Amendment.

The fact is, those who oppose our Second Amendment rights are not going to just pack it in. Worse, this time, there has been talk of trying to annul the Trump presidency. How do you annul Supreme Court appointments? Well, one way is to impeach justices… but that takes a two-thirds vote, a margin not reached in decades. The other option could be to pack the court with justices who would be committed to overturn Heller and any other pro-Second Amendment decision.

The Democrats did reach a total of 60 seats in the Senate after the 2008 election to go with control of the House of Representatives. Now, the 2008 election was a rare landslide, but Charles Schumer, a staunch enemy of our Second Amendment rights who has long waged a fight to maintain left-wing control of the courts, may decide to use the nuclear option to ram through a SCOUTS-packing scheme.

One other campaign will precede that power play – one intended to make support of the Second Amendment akin to being a smoker. In short, you may have the legal right to own a gun, but the media and entertainment outlets will be blaring out all sorts of nonsense to get your friends and neighbors to drop you unless you drop the Second Amendment. That will be the hardest, because it will involve interaction, and there will be a lot of up-close-and-personal rejection, despite your best efforts.

The confirmation of Brett Kavanaugh will not mark the end of the fight, or even the beginning of the end. What it will do is mark a shift in the fight – and one that will require new strategies and approaches to keep our right to keep and bear arms secure.

Harold Hutchison

About Harold Hutchison

Writer Harold Hutchison has more than a dozen years of experience covering military affairs, international events, U.S. politics and Second Amendment issues. Harold was consulting senior editor at Soldier of Fortune magazine and is the author of the novel Strike Group Reagan. He has also written for the Daily Caller, National Review, Patriot Post, Strategypage.com, and other national websites.

  • 25 thoughts on “What Kavanaugh Means for the Second Amendment Fight

    1. In a rare dissent, Justice Thomas (Silvester v Becerra/California) stated an important fact that we seem to be ignoring: why are we treating the Second Amendment differently than the others?

      If those who wrote the Constitution didn’t mean an AR, why should we assume that the First Amendment applies to the Internet? Does the Tenth Amendment not apply to things not available in 1789, like the right for Massachusetts to allow same-sex marriage?

    2. Love judge Kavanaugh feeling much better about our Constitution and in particular Second Amendment he is a constitutional judge perfect pick and a perfect fit

    3. Wild Bill>>> You are right on about the meaning of the word “may” in legal terminology but since we are already at that point in DC I think “may” leave a the door open for a future positive outcome in a future challenge.
      From what I get from Kavanaugh is that how a challenge is written in regards to the original intent of the Constitution will determine the outcome not a preconceived notion of Kavanaugh.
      I am hopeful our rights will be returned. Meantime I am happy to “chip away,” as sad as that is, just as the progressives do to have them taken away.
      No “blue wave” will give us two more opportunities for SCOTUS appointments.

    4. I am concerned about Judge Kavanaugh. I did not expect him to get into a war of words over the phony-baloney term, “assaualt weapon.” However, his performance with blumenthal and durbin was MOST disappointing. He was asked by blumenthal, “How do you reconcile your dissent with the rash of shootings.” Then durbin tried to lecture him on, “common sense.”

      The response to BOTH should have been, “Senator, this is STILL America. In America, we do NOT punish the masses for the acts of the individual. It is all about accountability. This is as common sense as common sense gets.” Unfortunately, his chosen response was, “I’m sorry senator, Scalia made me do it.” He sounded weak, even apologetic.

      I am NOT as confident as some are.

    5. Strikes me, perhaps wrongly, that something is needed to provide The Court with some ballsre firearms. Re the seeming leanings of lower courts, something a lot less than serious scrutiny, seems to,hold sway, and is obviously damaging to gun rights.

    6. Is this site afraid to print the truth.You’re a front f o r the democrats.I’ll tell everyone I know Ammoland is COMMUNIST.


    8. Kavanaugh, or the SCOTUS citing themselves, or any other court’s decision, is a promulgation of lies by in-breeding. We need someone to reach all the way back to the Constitution [AN BEYOND IT].
      The Constitution (essentially our 3rd, if you are keeping track) briefly attempts to set out how we will all get our indelible GOD GIVEN rights that we demand of, for, and from, each other under the Declaration of Independence.
      The Declaration cannot be re-written, we can get a new one, but it will likely cost you your pelt. The Declaration implies 3 times, AND STATES NO LESS THAN TWO TIMES IN THE FLESH LANGUAGE, that, should any bona fide U.S. citizen fell it’s necessary, then “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security” . No one able to use logic would assume that the Framers meant for such a citizen, wanting to replace the guards for their security, should to have to ‘ASK’ their self-same government for the means, or the permission to obtain the means to do so.
      That means, that bona fide U.S. citizens should be permitted to have P A R I T Y of weapons with their government. And it’s not our fault what that parity entails.

    9. Wild Bill, He said “machineguns MAY be continued to be banned after Heller”. Anything stronger than that would have gun control progressives jumping off bridges. (Not too bad) but I want him confirmed. I’ll key on the word MAY. He is currently best hope for National CC reciprocity.

      1. @Cap, In the language of the law “may” means having the power and authority to do something, not that something might or might not get done. I am sure that you are aware that lawyers use meanings of words other than the common usage of words for the purpose of deception. That is what Kavanaugh did in his dissent.
        Kavanaugh intimated his belief that government has the power and authority to ban kinds and types of firearms in his dissent in the October 2011 ruling to lawyers, and appeared to say something else to we commoners.
        I have reservations about Kavanaugh. I believe that he is being portrayed as a supporter of the Second Amendment, for the purpose of fooling us. There are several more demonstrated Second Amendment supporters on President Trump’s short list for S. Ct. Justice.

    10. Harold Hutchison has not given us the entire Kavanaug quote. Most deceptive. Here is the entire quote, in pertinent part: “… Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than 1270*1270 semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)”

      Note that Judge Kavanaugh thinks that machine guns are traditionally banned. That is not the law nor the tradition. I leave it up to each of you, but as for me, I don’t think that Kavanaugh is the Second Amendment supporter that he is made out to be.

      1. Wild Bill,
        The Heller decision dealt with laws in DC. They may very well be “banned” in DC, I don’t know. The ruling was concerning the possession and use of handguns. The fact that MGs were mentioned is a side note of little consequence then and in any future decisions.

        1. @Roy D. Thank you, but I am well aware of the progress of the Heller case; the Heller decision; and the impact of dicta. I included the entire quote, in pertinent part, because the author did not. Kavanauh’s dicta is important because it tells us what he believes about the Second Amendment, the nature of “Rights”, that he believes that our Constitutional Civil Rights can be treated differently, and substantive due process in the Fifth and Fourteenth Amendments.
          I included Kavanauh’s dicta because the author left it out, and so that people could have a complete picture of Kavanauh with which to make up their minds.

          “(By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)” Kavanauh

    11. A socialist and dictator group like the demonrats and their globalist Masters and the idiot brain washed anti gun sheep’s that they have protesting against semi automatic rifles which they know that is the only way the patriotic citizens of America can fight back against a tyrannical government. We need these sheep’s of theirs to stop hiding behind our backs. If they think that gun free zones are safe then why don’t they post gun free zone signs in their front yards. If they have the courage to try to take my guns away from me. Then they should have the courage to post gun free zone in their front yards. I dare them to! So they can see how safe their families will be.# get out from behind my back

      1. I agree.Why won’t Sessions prosecute the CROSSFIRE HURRICANE TRAITOR LYING ANTI CONSTITUTION DEMOC RATS? This is very annoying and really posses me off.Sessions could get rid of a whole cabal of lunatic democ rats in one shot if he prosecuted these democrat lying American hating pieces of crap.I know I’m not the only Patriotic American that is madder than hell and wants in the worst way to eviscerate the democrats in November and make sure President Trump keeps the House and Senate.The democrats want to force MISERY upon the American people so they have a reason to exist as in run to the government for help. The democrats have gone full COMMUNIST. The top FBI leadership is fired for CROSSFIRE HURRICANE THE BIG LIE MADE UP TO GET URANIUM DELIVERY BOY MUELLER AS A SPECIAL COUNSEL.ALL BASED ON THE GIGANTIC G P S FUSION STEELE DOSSIER LIE!!!!. THE TRAITOR TO T HE U.S.A. DEMOCRAT LIERS HAVE MUCH TO ANSWER FOR AND MANY DEMOCRAT LTING TRAITORS MUST BE FINED MASSIVELY AND GET TRAIT O R LIFE SENTENCES IN JAIL.ALL THE EVIDENCE IS SITTING IN PLAIN SITE JEFF SESSIONS.

    12. The Nuclear Option has already been used and it’s enabling the Republicans to fill a myriad of lower court seats that the Dems can’t block. I fail to see how Schumer would be able to “pack” the Court since only death or retirement opens seats. As far as SCOTUS is concerned, the Dems are more likely to lose Justices than the GOP.

    13. Good thoughtful article. Many “gun grabbers” simply do not trust themselves with a firearm. They project so there is no way they will trust anyone else. I have personally heard people say that don’t trust themselves confirming my theory.
      If “friends” would part with me because I support the 2A so be it. Would they or anyone tolerate you telling them how they should raise their children or what religion to follow or “how” they should think? Of course not!

    14. I just do not understand why the left so hates guns! They are inanimate objects, like a table utensil (or about anything else) that cannot harm anyone. Just like a steak knife, in the hands of the wrong person can cause great bodily harm to many people who do not understand how the deploy resistance to one. Then there is the automotive argument. Cars kill way more people that guns do what about a car ban? Cell phones cause distracted drivers to kill others, completely unintentionally, so why not ban cell phones? Once on this path of banning things simply because they COULD cause mass tragedies, it becomes a slippery slope of, sooner or later, banning everything. Then we ALL become slaves to the mighty government that is meant to serve US! Not the other way around!

      1. Because Dr. Mike, they are a party of hate. The leaders want total submission, total power & total control over the people they “serve”. The ones that follow them are like lemmings…hoping for that brighter future that lies just beyond the edge of the cliff. They believe what they are told, that the only way to freedom is through submission…& the leaders want to make sure they are dependent, misguided & unarmed. Otherwise, they would be like us…awakened.

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