What the Appointment of Brett Kavanaugh Means for Gun Rights
July 16, 2018
The sky is falling. Following President Trump's reality-television-inspired teaser, Trump formally announced justice Brett Kavanaugh as his Supreme Court pick - a man late night talk host Jimmy Kimmel referred to as Voldemort (the evil villain of the Harry Potter series of children's books).
Surely this means that Kavanaugh is a staunch ultra-conservative zealot who values guns over free search, will overturn Roe v. Wade, liquidate ObamaCare and work to turn the United States into a totalitarian theocracy, right?
No. Of course not. That is beyond insane, and only the most intellectually infantile of political pundits who couldn't be bothered to do the most cursory of research would believe it - that, or just those who are intellectually dishonest.
Actually, Justice Kavanaugh is actually one of the better choices for the nation as a whole. I say this, because his previous statements and rulings suggest he is an originalist: someone who doesn't see the court as a political station designed to inflict their ideologies and personal politics on the American people.
Kavanaugh's acceptance speech further confirmed.
"A judge must be independent. And must interpret the law, not make the law. A judge interpret statutes as written. And a judge must interpret the Constitution as written; Informed by history and tradition and precedent"
The majority of his statements are excellent for Constitutionalists, and those seeking to return America to its founding principles. The only exception on that is that last word: precedent.
Precedent is hardly solid ground to stand on for either formal debates or jurisprudence; plenty of bad laws have been made in the past. The fact that they were passed doesn't lend them any credence if they were unconstitutional to begin with.
But I digress. What does this mean for gun owners and those who support the Second Amendment?
Let's start off with a long quote from Justice Kavanaugh in regards to the DC v. Heller case.
"I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy.
This sounds bad, but isn't. This statement shows that Kavanaugh is willing to make decisions that he may disagree with politically, if they are constitutionally sound. If this sounds strange or novel to you, it's because the left has use the Supreme Court as a political tool for longer than most voters have been alive. Kavanaugh continues:
If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind.
But 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... A lower-court judge has a special obligation, moreover, to strictly and faithfully follow the lead of the "one supreme Court" established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.
Here Kavanaugh expressly outlines what I stated earlier: he's not going to use the position to make laws, but to determine if they are legally, or constitutionally sound.
If shooters are still nervous about this nominee, they can most likely relax. While it's impossible to determine any judge's future votes, Kavanaugh has made plenty of statements concerning DC's Assault Weapons Ban's constitutionality that should make those still living in ban states hopeful.
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 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.
The basis for his opinion isn't one rooted in emotion, feeling or subjectiveness, but constitutionality and precedent. Furthermore, it's refreshing to see a justice approach the Second Amendment with the correct historical lens, and not through the mindset of someone looking to bend it to their political views.
Despite the lack of self-loading firearms in Colonial America, the founding fathers wouldn't have banned these guns then or now. Before, during and proceeding the American Revolution, American citizens were legally able to own cannons and ships of war. This being the case, a rapid-firing, long-range musket wouldn't cause even a raised eyebrow.
Kavanaugh seems like a homerun for the Second Amendment, until he adds this final clause to his dissent.
"By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller."
This final portion runs in contrast to some of Kavanaugh's earlier statements, and unfortunately reinforces the negative aspects of following or relying upon precedent as the crux of a legal ruling.
Machine guns have been heavily regulated since 1934 when the National Firearms Act was enacted. This was passed just one year prior to the most unconstitutional, sweeping law in American history - the New Deal.
This may seem like ancient history to many, but President Franklin D. Roosevelt is directly responsible for politicisation of the Supreme Court that is so prevalent today. When members of the Supreme Court questioned the constitutionality of Roosevelt's New Deal, FDR responded by attempting to pass the Judicial Procedures Reform Bill of 1937.
This bill would have effectively neutralized all dissenting justices by allowing FDR to stack the court with his own politically-motivated picks. Though this isn't a new tactic for Democrats.
Another hole in Kavanaugh's reasoning deals with the passage of the Hughes Amendment in 1986, and the continued sale and transfer of legal machine guns as defined by the National Firearms Act.
The only reason these guns don't meet the Heller definition of "not in common use by lawful citizens" is because the NFA artificially inflated the prices of these firearms to well beyond the financial reach of the average citizen. So much so, cheaply made automatic weapons like the Ingram MAC-10 runs upwards of $5,000 when a deregulated market would see this gun under $400.
Though it seems that Kavanaugh isn't the sort of Judge that would pass legislation based on his own personal biases - although time will tell.
Despite this, Democrats have already begun lambasting Kavanaugh. Like Connecticut Senator Chris Murphy's tweet last Monday calling Kavanaugh, "...a true Second Amendment radical."
Though what exactly is radical about Kavanaugh's position remains unclear. Especially given that the crux of Kavanaugh's anti-Heller comment revolves around applying the same ruling on handguns to rifles of the same operating principle.
But this reactionary response didn't come as a surprize to Senate Majority Leader, Mitch McConnell who stated days before Trump's appointment of Kavanaugh was announced that he expected to catch flak for any nominee. To quote McConnell,"Our democratic colleagues still haven't tired of crying wolf, whenever a Republican President nominates anyone to the Supreme Court."
Ultimately, Kavanaugh seems like an OK choice for the Supreme Court - both for those living in ban-states and constitutionalists. Some of his comments in regards to NFA-restricted firearms are more restrictive than many would like. Hopefully, his opinions on the legality of any so-called assault weapons bans will lead to the overturning of them in states still plagued by their rigid restrictions.