Justice Kavanaugh: Friend or Foe to the Second Amendment?

NRA SCOTUS Kavanaugh
Justice Brett Kavanaugh was among the SCOTUS judges that shot down the NY gun case.

U.S.A.-(AmmoLand.com)- “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” ~ Martin Luther King Jr., Letter from the Birmingham Jail; often miscited in abbreviated form as: “Justice delayed is justice denied.” Various renditions of the quotation have come down through the ages, recited by many learned and famous men. The origin of the quotation likely came from William Penn (1644 to 1718), who asserted,To delay Justice is injustice.”

WHAT IS JUSTICE?

Black’s Law Dictionary says this about the concept, ‘justice:’ “In jurisprudence. The constant and perpetual disposition to render every man his due. . . . In the most extensive sense of the word it differs little from ‘virtue;’ for it includes within itself the whole circle of virtues. . . . But ‘justice,’ being in itself a part of ‘virtue,’ is continued to things simply good or evil, and consists in a man’s taking such a proportion of them as he ought. Bouvier. Commutative justice is that which should govern contracts. It consists in rendering to every man the exact measure of his dues, without regard to his personal worth or merits, i. e., placing all men on an equality. . . .”

WAS JUSTICE METED OUT TO PETITIONERS IN THE NYC GUN TRANSPORT CASE?

Some good Americans think the principal Petitioner, the New York State Rifle & Pistol Association (NYSRPA) prevailed in New York State Rifle & Pistol Association, Inc., vs. Petitioners V. City Of New York, 590 U.S ____ (2020), simply because New York City—evidently fearing loss if the case were decided on the merits—capitulated, redrafting New York City regulations and New York State Statute, permitting New York City holders of restricted handgun premise licenses to lawfully take their firearms out of the City. The U.S. Supreme Court agreed to hear the mootness issue and found for the City against NYSRPA.

Nonetheless, can this case legitimately be considered a win for NYSRPA? Holders of such New York City restricted handgun licenses are not permitted to use the firearm for self-defense outside of the residence or business to which the license confers or deigns a “right” (more a “privilege”) of use for self-defense? And questions remain as to limitations on the import of travel to and from the residence or business establishment—questions that could only have been resolved were the case to be decided on the merits.

Some Second Amendment scholars with whom AQ has since spoken believed the New York City case was not a good Second Amendment case to be decided by the Court, not least of all because it allowed the City to exploit the problems, predictably. These scholars believe that Kavanaugh, having urged, in his concurring opinion, for another Second Amendment case—among those presently pending on a writ of certiorari—to be taken up by the Court means that the Court will, shortly, take up another Second Amendment case. The idea, then, is that the NYC case was important for that reason alone.

Be that as it may, it still does not explain why, if Justice Kavanaugh agreed with Chief Justice Roberts and the liberal wing of the U.S. Supreme Court in ruling in favor of New York City, against the New York State Rifle & Pistol Association (NYSRPA) in New York State Rifle & Pistol Association, Inc., vs. Petitioners V. City Of New York, 590 U.S ____ (2020), on the mootness issue.

Why didn’t Justice Kavanaugh just add his name to that of the liberal wing of the Court and to that of Chief Justice Roberts, in deciding in favor of the City, and leave it at that?

Did Justice Kavanaugh feel a jurisprudential need to write a concurring opinion, knowing that going along with the liberal wing is not what would be expected of him, given his past deference to the Second Amendment of the Bill of Rights, in his well-reasoned, comprehensive dissent in Heller II?

Did Associate Justice Kavanaugh feel he needed to write a concurring opinion, knowing that siding with Chief Justice Roberts and the liberal wing of the High Court, against the conservative wing, comprising, Justices, Alito, Thomas, and Gorsuch, would lead the American public, to infer, not unreasonably, legal and logical inconsistency and incongruous intellectual dishonesty on Kavanaugh’s part—something impossible for him to hide? Perhaps. But no one really knows because no reporter or commentator has even bothered to hazard a guess as to Justice Kavanaugh’s motives or motivation for drafting a concurring at all.

Does Justice Kavanaugh know for a certainty the High Court will in fact take up for review another and more significant Second Amendment case and did he intend to use a concurring opinion specifically to inform the legal community and the public of that fact?

No commentator, to date, to our knowledge, has explored these questions and that leaves us in a quandary as to Kavanaugh's intentions.

For example, on April 27, 2020, Amy Howe, independent contractor, and reporter, who writes regularly for the SCOTUS blog, simply reiterated the simple fact that:

“Justice Brett Kavanaugh filed a concurring opinion in which he explained that he agreed with the majority that the gun owners’ original claims are moot and that the new claims should be addressed first by the lower courts. But Kavanaugh also indicated that he agreed with Alito’s ‘general analysis of Heller and McDonald v. City of Chicago,’ in which the court made clear that the Second Amendment applies fully to the states, and that he shares Alito’s ‘concern that some federal and state courts may not be properly applying Heller and McDonald.’ Kavanaugh posited that the Supreme Court ‘should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.’”

In her follow-up article, dated April 28, 2020, on SCOTUS blog, Amy Howe, reiterated the fact that:

“The court’s electronic docket reveals that Kavanaugh’s suggestion may come to fruition soon: By the end of the day yesterday, the Supreme Court had distributed for consideration at Friday’s conference 10 cases that had apparently been on hold for the New York case.”

Is this a cause for rejoicing simply because writs of certiorari in several Second Amendment cases have been filed with the Supreme Court and are pending a vote? The idea that the Supreme Court ‘should’ address the issue whether Courts are properly applying Heller and McDonald doesn’t mean that the Supreme Court ‘will’ address that issue.

Possibility is not the same thing as probability, and even less, certainty. And, if the Court does agree to hear another Second Amendment case, when might that be? And, if soon, will the Court actually address the issue whether Appellate Courts had properly applied Heller and McDonald? Lastly, how would such a case be decided? These are not spurious questions. They are serious ones and unsettling ones, worthy of speculation. And the point of this speculation is that the New York City gun transport case was the first case to come down the pike ten years after McDonald, involving a core Second Amendment issue (with the exception of the seeming quasi Second Amendment Voisine case)

Keep in mind, there have been many Second Amendment cases that came before the High Court on writs of certiorari, in the intervening years between the seminal rulings in Heller and McDonald and the negative decision in the New York City gun transport case. Each of those cases “should” have been reviewed but were not reviewed. What happened to those petitions?

The answer is nothing happened.

Those cases the Supreme Court failed to review reflect, to a one, the fact that U.S. Circuit Courts of Appeal, around the Country, blatantly and defiantly ignored case precedent clearly and categorically laid down in Heller and McDonald.

POSTSCRIPT

In future segments, we will begin our comprehensive analysis of what to our mind is Justice Kavanaugh’s bizarre concurring opinion in the New York City gun transport case, and we will address the mootness issue head-on.

We will strive to decipher Kavanaugh’s concurring to ascertain if Kavanaugh’s decision, siding with the Chief Justice Roberts and the liberal wing of the Court, is merely an anomaly or if it portends something ominous: an entire rethinking of Kavanaugh’s philosophy pertaining to the Second Amendment? Our aim, in forthcoming articles, will be to determine whether Americans can trust Brett Kavanaugh to remain true to his Oath to preserve and defend the Constitution of the United States.



Arbalest Quarrel

About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel' website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

For more information, visit: www.arbalestquarrel.com.

Subscribe
Notify of
20 Comments
Inline Feedbacks
View all comments
Jeff
Jeff
4 months ago

At this point, it is what it is! We can all try to guess what his thinking is/was, and try to guess how he’ll vote the next time. My GUESS (and that’s all it is) is that he will ultimately be pro-2A with the right case. In any event, this article accomplishes nothing and the responses are all pretty much just hot air – because NO ONE KNOWS!! In other words, chill, go to the range and shoot some holes in paper, and then come back and have a beer! You’ll have accomplished far more than worrying & fussing about… Read more »

Nanashi
Nanashi
4 months ago

I warned people about Kavanaugh as soon as he was nominated. I actually read the Heller opinion he wrote and it was horrible: He outright said the Constitution was subservient to “tradition”.

Wild Bill
Wild Bill
4 months ago
Reply to  Nanashi

@Nanashi, You were correct then and are correct about Kavanaugh, now” Judge Kavanaugh dissented (in Heller v. D.C. (2011)). An excerpt from Kavanaugh’s dissent: “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. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic 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… Read more »

Bill
Bill
4 months ago

I’ve said it before, many times but nobody will listen. None of these people grew up in the same world as us and have completely different beliefs. Theyve never needed a gun and dont see why we NEED one either.

Doszap
Doszap
4 months ago

SCOTUS has to me become largely irrelevant. They are simply Too Political to follow the Oaths they took. Which makes them liars and treasonous.
It’s fast coming to the point where we either Balkanize ,or we will IMHO see a Revolution.
Over the 2A.

BigMikeU
BigMikeU
4 months ago

Well as i see it if Kavanaugh and others like him should be removed from their seats of power and investigated as TRAITORS!?! They will be the people that start a 2nd Civil War if they go against our Constitution! I know i will be one of the 1st to step up to defy our Government and its courts if they go against our Founding Fathers laws and the Very Constitution we have created our country from! HANG ALL TRAITORS!!!

Gdubb
Gdubb
4 months ago

Kavanaugh is unfortunately just a globalist Bush2-era holdover.

Beeroy
Beeroy
4 months ago

4D Chess.

BigMikeU
BigMikeU
4 months ago
Reply to  Beeroy

lets hope!?!

Ed
Ed
4 months ago

The writer of the article said that no one has asked Kavanaugh why he wrote a concurring opinion. Well. I suppose the writer could ask him. So, instead of requesting time with Kavanaugh the writer decides to guess at the reasons.

Stag
Stag
4 months ago

None of them are friends of the 2A or any other amendment, for that matter. They’re all either butters, Fudds, outright hostile to the 2A.

WhiteRose
WhiteRose
4 months ago
Reply to  Stag

Scalia is the model and they took him out

Doszap
Doszap
4 months ago
Reply to  WhiteRose

Bingo!,
No way you can tell me died of Natural causes at a Demoncrat owned ranch( in the middle of Nowhere) in his sleep.Plus, he was never autopsied and was cremated in 48 hours.Folks that DOES NOT HAPPEN.Unless someone was pulling strings.

Vanns40
Vanns40
4 months ago

If the High Court were truly bereft of politics, and decided matters solely on Constitutional merit, there would be no arms control in this control today. We would be exactly where we should be, simply enforcing laws against rape, robbery, murder and assault no matter what (if any) weapon was used.

That should tell you something about every Justice that has ever served.

uncle dudley
uncle dudley
4 months ago

Very simple for those on the court all they have to do is follow the constitution but after all they are lawyers and they have a hard time agreeing about anything except that they know more than the average guy.

Laddyboy
Laddyboy
4 months ago
Reply to  uncle dudley

AHHHHH! Butt they FEEL like they know better than the Founders of Our Country. Exactly how the DemocRATs FEEL they know what is better for the SERFS they CONTROL. The problem IS: THEY ARE THE HIRED EMPLOYEES and WE the American People ARE the Masters!!

Xaun Loc
Xaun Loc
4 months ago

Yawn. The writer of this screed apparently loves to hear himself talk and to see himself in print – even when he has nothing to say.

WhiteRose
WhiteRose
4 months ago
Reply to  Xaun Loc

the interpretation of the ‘law’ is always a challenge and begs for a degree of finesse in its exposition. Clarity on the street is always black or white, not so, when all the elements surrounding a case are considered. There are always many variables at play and a legal history that underpins the reasoning process. Time will tell. WE know who we are and know the parameters in which we offer up our consent to be governed. That is what is significant. Patience is the virtue that the street needs…..