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Don’t Rely On Justice Kavanaugh To Protect Gun Rights


Lest the title of this essay cause any misunderstanding, I’m glad that Brett Kavanaugh was confirmed to the Supreme Court. In terms of his judicial outlook, he’s more like justices Samuel Alito, Neil Gorsuch, and Clarence Thomas than like justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

All the better, Kavanaugh appears to have led an exemplary life for at least the last 30-odd years, as attested by scores of people who have known him best academically, professionally, and personally. Not surprisingly, then, the primary accusation against him during his confirmation process turned out to be full of lies and inconsistencies, and was refuted by the accuser’s supposed “witnesses.” Other accusations were even less credible, and some were so unbelievable that even the most vile and despicable Democrats on the Senate Judiciary Committee—Dick Durbin, Richard Blumenthal, and Kamala Harris—wouldn’t vouch for them.

Furthermore, despite some Republican senators politely giving Sen. Dianne Feinstein the benefit of the doubt, I won’t be surprised if we eventually learn that she colluded with the first accuser and her lawyers to “leak” the accuser’s story, to bring about a nationally televised spectacle they hoped would destroy Kavanaugh’s stellar reputation. Unlike Harris and Sen. Elizabeth Warren, Feinstein is a gentlewoman, but from my involvement in the fight against her 25-year crusade to ban rifles that are particularly suitable for defense of life and liberty, I know she, like they, can be fanatic.

Last, but not least, having been viciously attacked, Kavanaugh proved that he is a fighter, and a stronger one than the scoundrels who sought his destruction. I expect a guy to protect himself and his family. But I figure that a guy who will fight that hard for his nomination, enduring what he did to fulfill his obligation to the president and the American people, is probably a guy who will fight to protect our rights.

However, it is a mistake to assume, as one commenter recently did, that “Kavanaugh is the Supreme Court justice gun owners have been waiting for.”

The Supreme Court Can Be Full of Surprises

This is not to take anything away from Kavanaugh or, for that matter, any of the several other trustworthy justices on the court. The problem with the commenter’s assumption is that, as learned observers have warned us for years, you can never be certain what the court or any justice on it will do.

Consider that former justices David Souter, John Paul Stevens, and Sandra Day O’Connor, the late former chief justice Warren Burger, and the thankfully “borked” Robert Bork, all nominated to the court by Republicans, opposed the right to arms. Similarly, it was another Republican appointee, the late, great Justice Antonin Scalia, who, despite his brilliance in many other cases, wrote the majority opinion in District of Columbia v. Heller (2008).

As I explained in a previous essay for The Federalist, Heller correctly concluded that the right to arms is held by Americans individually, but it also “laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future.”

Thus, even if sometime over the next six years President Trump gets to nominate replacements for retiring justices Breyer and Ginsburg, who oppose the right to arms, and Thomas, who supports the right but might decide to retire while a Republican president can replace him with someone 20 to 30 years younger, there is no guarantee that their replacements would turn out as hoped. That would be especially true if voters don’t increase Republicans’ Senate majority in the November 6 elections and retain or expand that majority in 2020 and 2022.

Our Votes Are More Important Than the Supreme Court’s

The electorate has swung back and forth between conservative and liberal presidents over the last 30 years and, as Mollie Hemingway recently reminded us, there is no such thing as a moderate Democrat. Bearing in mind that Ginsburg and others have indicated that they want to overturn Heller, because it recognizes that the right to arms is individually held, if in 2020 Americans elect any Democrat as president, a commitment to overturning Heller would be a litmus test for that president’s nominees to the federal courts.

But all of that is beside the point. If we have to ask the Supreme Court to overturn a law that infringes the right to arms—a law imposed by Congress and a president, or by a state legislature and governor, elected by the voters, thus presumably reflective of the voters’ desires—even if we win that battle, it means we are losing elections and, implicitly, the war for public opinion.

True, having a last-ditch option is better than having no option at all. But even if we muster five votes on the Supreme Court, five votes for what? The commenter who takes comfort in Kavanaugh’s joining the court says it will be five votes for Heller. Heaven help us if that is the best we can do.

Heller Is a Catastrophe in Waiting

As I explained previously, Heller, based upon an egregious misreading of the Supreme Court’s decision in U.S. v. Miller (1939), coupled with an express rejection of the Second Amendment’s underlying goal, allows the prohibition of any arms that are not “in common use,” with “common” defined however legislators, executives, and judges see fit. Contradicting itself, Heller even expressly endorses a ban on the M16, the most common rifle in the organized militia (see 10 USC 311) for the last 50 years.

Furthermore, the malleable “common use” standard could be used as the basis for banning semi-automatic rifles such as the AR-15, today the rifle most “in common use” by the militia’s unorganized component and the rest of the citizenry, and the ammunition magazines they and semi-automatic handguns are designed to use. Potentially more importantly, it establishes a rationale for banning all arms of the future, especially those employing technologies not yet introduced, on the basis that they are not yet “common” by any definition of the word.

The commenter says Heller means “Americans have a right to keep and bear bearable arms, meaning arms that can be carried on someone’s person. That includes handguns, rifles, and shotguns.” However, that statement is not true, on multiple levels. First, as noted, Heller expressly endorsed a ban on M16 rifles and implicitly endorsed a ban on other firearms that government officials claim are not “in common use.”

More importantly, however, the notion that the right to arms is limited to not only “bearable arms,” but to only an artificial subset of them consisting of “handguns, rifles, and shotguns,” has no basis in the Second Amendment’s legislative history. Instead, it is an argument conceived several decades ago by lawyers fearful that asking the federal judiciary to recognize the full extent of the right to arms would result in rulings so adverse as to open the door for prohibiting some or all extant firearms, which could put some or all firearm manufacturers and perhaps one or another firearm advocacy organization out of business.

Gun hobbyists may be content with a combination of justices that might allow them to have guns for hunting and even for defending themselves against carjackers in a parking lot. But Kavanaugh will be the justice the Framers have been waiting for if he convinces at least four of his new colleagues that the right to arms is the right to all offensive and defensive arms without which defeating tyranny would not be possible, excluding only those that would give an individual a degree of power the Framers intended to be distributed among the people generally.

However, given that five of the highest officials in the federal government would likely take a dim view of the people possessing the tools with which to resist the federal government, gambling on the idea that the right to arms is safe because Kavanaugh or anyone else is on the Supreme Court is a gamble none of us should take. To protect the right to arms, vote like your life depends on it, because it might, and convince your fellow voters to do the same.