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Radical – Brett Kavanaugh and the Second Amendment

Shelby Murdoc

Tuesday, July 17, 2018 — It was obvious that whoever President Trump nominated to the United States Supreme Court after Justice Anthony Kennedy announced his retirement, American liberals would suffer another meltdown. I saw a tweet the day before Trump announced his selection, noting that it didn’t matter if his choice was Amy Coney Barrett or Genghis Khan…the Left’s reaction would be identical. And then, hilariously, Women’s March issued a press release lambasting Trump’s pick, which the release referred to as “XX”…because someone had forgotten to insert the name of the nominee into the pre-written release.

The howls of rage and shrieks of terror erupted as expected, with all of the familiar predictions of doom front and center across the press and online social networks.

Based on his record, Kavanaugh seems like a very solid pick. Most importantly, like Neil Gorsuch before him, Kavanaugh is dedicated to honest interpretation of the Constitution. The day after the pick was announced, Senator Chris Murphy (D-Connecticut) tweeted that Kavanaugh is “a true Second Amendment radical.” What does it mean to be a “radical” about the Constitution? Is that something like a “Free Speech zealot?” Or a “Due Process fundamentalist”?

What Senator Murphy probably finds “radical” about Kavanaugh, is the wild idea that the Supreme Court is supposed to be made up of judges who—get this—judge cases based upon the law of the land. They don’t try to make new laws. They don’t change existing laws to fit the times or advance (or restrict) some political agenda. They determine what the laws of our nation say about a situation and they rule accordingly. Of course, not all of our current Supreme Court justices behave this way, but I believe we should be grateful that President Trump and the Republican-controlled Senate is doing what they can to rectify the situation.

Kavanaugh’s record on Second Amendment issues is pretty solid. Far from being a pro-gun extremist, he appears to base his judgements on the text of the Constitution and upon history and tradition. The history-and-tradition aspect troubles some who want to see fewer restrictions on our rights and less gun control in our nation, but we need to keep a few things in mind about this. First, when Kavanaugh was making judgements or writing opinions in which he used history and tradition in his reasoning, he was not on the US Supreme Court. Supreme Court Justices have more freedom to depart from precedent because they are the ones setting precedent. It is reasonable to expect that Justice Kavanaugh will feel much less bound by history and tradition than he did when serving on D.C Circuit Court.

Secondly, even the landmark Heller decision, one of the great victories for gun rights in our time, noted that gun control itself isn’t unconstitutional. It said specifically that the right to keep and bear arms “is not unlimited,” and gave some examples of what it considered reasonable gun control that did not infringe on the right. It also noted that the arms referred to by the Second Amendment “applies to those used by the militia, i.e., those in common use for lawful purposes.” That last bit bothers a lot of gun owners, and those are likely to be the same ones bothered by Brett Kavanaugh’s history-and-tradition position.

Here is an example of Kavanaugh’s history-and-tradition-based reasoning, and it is the basis of Senator Murphy’s tweet about being a Second Amendment “radical.” The full tweet read, “Brett Kavanaugh is a true Second Amendment radical. He believes assault weapon bans are unconstitutional, a position way out of the judicial mainstream, far to the right of even late Justice Scalia.”

Obviously, in the months and years following a number of horrific shootings that have involved military-style guns and demands for various bans on so-called “assault weapons” and even bans on all semiautomatic guns, one might think that declaring assault weapon bans unconstitutional is, indeed, a “radical” position.

But it’s not, and not because all gun control is unconstitutional or because Kavanaugh believes that civilians should have access to all military weapons. Kavanaugh wrote that bans on semiautomatic rifles are unconstitutional because Heller determined that bans on semiautomatic handguns are unconstitutional, and

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.

This historical and traditional availability of semi-automatic rifles means that they cannot be banned, and since so-called “assault weapons” have no functional differences that set them apart from any other semi-automatic rifle, assault weapon bans are unconstitutional. Additionally, D.C.’s registration scheme was particularly unusual and therefore did not pass the test of being historically or traditionally common practice.

As a note, a parenthetical after the above-quoted section notes

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

That is certain to irritate or infuriate many pro-gun enthusiasts, but I should point out that elsewhere Kavanaugh has commented on this, noting that the history-and-tradition test allows the government a lot more leeway than it would have using a purely textual reading of the Constitution:

Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.

Remember the part where I noted that Justice Kavanaugh of the US Supreme Court would be more likely to deviate from precedent than Judge Kavanaugh of a lower court? Here I think we see that Kavanaugh is very aware that strict readings are sometimes vastly different than history and tradition and that sometimes history and tradition are wrong. He notes that history and tradition that fail strict scrutiny are unconstitutional, and that logic leads one to think that he is at least open-minded about the constitutionality of what is effectively a ban on fully-automatic weapons.

I fully expect Brett Kavanaugh to be confirmed by the Senate. Rather quickly, in fact. And, though we will not know his actual position on gun rights until a gun rights case is brought before the Court, I expect that this judge is exactly the sort of judge we want sitting on that Court. One who takes history and tradition into account and works to judge fairly and accurately rather than legislating from the bench. One who holds the Constitution at the highest law of the land, a law that not even history and tradition can invalidate. No wonder the Leftists and Progressives are so scared. They’re afraid that his nomination means that the Supreme Court will uphold the laws that this nation was founded upon.

What a radical.

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