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July 30, 2018

Appeals Court Panel Rulings Underscore Importance of Judge Kavanaugh’s Supreme Court Nomination


By Larry Keane

A three-judge panel of the U.S. 9th U.S. Circuit Court of Appeals last week ruled in a 2-1 decision that the Second Amendment guarantees citizens the right to openly carry a gun in public for self-defense. The judges found the state of Hawaii had infringed on the rights of plaintiff George Young when it twice denied him a permit state authorities required to openly carry a gun in public. The ruling reversed a decision by a Hawaii district court.

Recently the 5th Circuit U.S. Circuit Court of Appeals very narrowly (8-7) declined to rehear a decision by a three-judge panel of the 5th Circuit that reversed a lower court holding the federal ban on the interstate sale of handguns does not violate the Second Amendment. The dissenting judges filed several dissenting opinions expressing concerns about how the circuit courts are applying the holding in Heller and that they are “treating the Second Amendment as a second-class right.”

Some observers of another recent 9th Circuit 2-1 panel ruling upholding a lower court injunction blocking the enforcement of a ban on so-called “high-capacity” magazines while a lawsuit against the ban can be heard are noting that this decision will make it more likely that the U.S. Supreme Court may take up a Second Amendment case. It has not done so since 2010.

While that eventuality remains speculation, for now, these recent circuit court rulings perfectly underscore the importance of Judge Brett Kavanaugh’s nomination to become the next U.S. Supreme Court associate justice.

Second Amendment: Right of the Individual

Judge Kavanaugh outlined a strong defense of the Second Amendment in his 2011 dissent to U.S. Court of Appeals for the District of Columbia Circuit ruling in the Heller II decision. The foundation of his argument begins with the 2008 District of Columbia v. Heller decision “that the Second Amendment confers ‘an individual right to keep and bear arms.’” He builds on that base with the McDonald v. City of Chicago decision noting that right “is a ‘fundamental’ constitutional right implicit in our scheme of ordered liberty and ‘deeply rooted in this Nation’s history and tradition.’”

Judge Kavanaugh’s understanding that Second Amendment right is preserved as an individual right shatters activist judicial interpretation that would still attempt to define the Second Amendment as a state right.

An ‘Enduring Document’

The Constitution, he added, is “an enduring document” that means as much today as when it was drafted and ratified. Society and technology might change, but the ideas captured within the Constitution remain as relevant today as when the ink first dried. “The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to the circumstances as they existed in 1787, 1791 and 1868, for example, but also to the modern situations that were unknown to the Constitution’s Framers.”

Judge Kavanaugh also made clear in his dissent that he has no appetite for legislating from the bench. He wrote that it isn’t the role of judges to find meaning in the white space in the law, but to faithfully apply the words as they’re written.

“As a lower court, however, it is not our role to re-litigate Heller or bend it to any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations.”

‘No Tradition’ for Registration

The judge’s dissent explained D.C.’s gun registration requirements were not just outside the norm, or even beyond the mainstream, but wholly unconstitutional. He noted in his Heller II dissent that there was “no tradition” for registration of all guns anywhere within the United States. He noted that at the time of the decision, most states did not require any registration, with only seven requiring registration of some types of firearms. The only state that required all firearms be registered was Hawaii and that set of rules wasn’t nearly as “onerous,” as that in the District.

Judge Kavanaugh noted at the end of his dissent that he understood the motivation of Washington D.C. officials who were attempting to stem the criminal activity in their city. After all, he was born in Washington D.C., and was familiar with the gangs, drugs and violence that had long-plagued the city. He did not doubt that the police chief and others sought to protect the citizens. Still, he wrote that the task of a jurist is not to decide policy. “… 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.”

Those things can change. The Constitution does not.

You may also be interested in: What an Originalist on the Supreme Court Means for Gun Rights