The Second Amendment may not need “life-support” after all. Last night, President Trump nominated Judge Brett Kavanaugh to the United States Supreme Court to fill the vacancy created by the retirement of Justice Kennedy. Kavanaugh is widely regarded as an independent-minded jurist who reveres the Constitution and recognizes that it is the role of a Judge to apply the Constitution as it was written, not as some would like it to be.
But first, let’s introduce David Kopel. Mr. Kopel is an American author, attorney, and gun rights activist. He is also the Research Director for the Independence Institute, which is a libertarian think tank based in Denver, Colorado. Over the years, Mr. Kopel has testified before Congress and various state legislatures and filed Amicus briefs before the U.S. Supreme Court in Heller (2008) and McDonald (2010). Recently, he authored an article that was published in the Syracuse Law Review entitled, “The Natural Right of Self-Defense: Heller’s Lesson for the World.” And finally, Mr. Kopel is a benefactor member of the National Rifle Association.
Kopel not only talks the talk, but he also walks the walk. He is a stalwart defender of the Second Amendment and we can trust his words. Oh, and refreshingly, did I mention he is a registered Democrat?
Yesterday, July 9, 2018, he authored an article published on the legal blog The Volokh Conspiracy. In it, he described Judge Kavanaugh’s judicial philosophy with respect to a Second Amendment case from the District of Columbia in which he wrote a dissenting opinion. To fully understand its relevance some background information is in order.
After the Supreme Court decided Heller in 2008, the District of Columbia enacted some very restrictive gun control ordinances. Accordingly, another lawsuit was filed in the D.C. District Court and Dick Heller was one of the plaintiffs. The case was appealed and became known as Heller II (2011). A 3 judge panel of the D.C. Circuit Court, which included Judge Kavanaugh, heard the appeal and voted 2-1 to uphold some of the new laws and remanded others to the District Court. Judge Kavanaugh dissented and these are the highlights of his written opinion which outline a new approach to determining the Constitutionality of gun control laws.
He began by saying, “As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.”
The District of Columbia ordinances broadly banned semi-automatic rifles. Judge Kavanaugh explained that in Heller, the Supreme Court held that semi-automatic handguns are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens, so the same reasoning must be extended to semi-automatic rifles. He found that there is no meaningful distinction between semi-automatic handguns and semi-automatic rifles, which also 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. Therefore, he reasoned, D.C.’s ban on them is unconstitutional.
The District of Columbia also enacted stringent gun registration laws. The language in both Heller and McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, “longstanding” gun regulations in the United States. Registration of all lawfully possessed guns has not traditionally been required in the United States and even today remains highly unusual. Using the history-and tradition-based test authorized by Heller, D.C.’s registration requirement fails constitutional muster and is therefore unconstitutional.
Clearly, Judge Kavanaugh is very thoughtful and deliberate in his analysis of the Second Amendment employing his long-standing adherence to text, history, tradition, and Supreme Court precedent. For a much more thorough analysis of Judge Kavanaugh’s stance on the Second Amendment, use this link to read David Kopel’s excellent article in its entirety. https://reason.com/volokh/2018/07/09/judge-kavanaugh-and-the-second-amendment
But, as defenders of the Second Amendment, we can never rest. We must be ever vigilant and our activism must be focused and relentless. Our sights must now be set on Kavanaugh’s confirmation. Everyone who reads and agrees with this must call and write your Senators imploring them to vote for Judge Kavanaugh. The Bill of Rights needs a conservative Supreme Court and the left will do everything they can to prevent it. Do not let them defeat us.
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