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.