What to Expect From A Kavanaugh Supreme Court – Part 1

Brett Kavanaugh Supreme Court Nomination SCOTUS

courtesy cnn.com

By MarkPA

In “The Death of Gun Control?” Dr. Robert Young wrote: “Now, [Second Amendment jurisprudence] will develop with the intended purpose of limiting government power rather than ‘living’ through death by a thousand cuts.”

But these changes will not necessarily occur dramatically or at once. The new composition of SCOTUS should place Chief Justice Roberts, with his demonstrated desire to foster limited, broad agreement, squarely in the middle. On the right, we will have Alito, Gorsuch, Kavanagh, and Thomas; on the left, Breyer, Ginsburg, Kagan and Sotomayor. Roberts will, in effect, replace Kennedy as the “swing vote.”

Kavanaugh’s confirmation may not be the last step in constituting a Trump Court. There are thoughts that Thomas or Breyer might retire. Justices Kagan and Sotomayor will likely continue to serve beyond Trump’s term(s). Justice Ginsburg has made it clear she will try to remain on the bench forever.

Successive Trump appointments, aside from a Thomas replacement, are apt to move the Trump Court toward an increasingly “original construction” orientation. But this will proceed slowly. The results would come incrementally, even if Trump were somehow to appoint all nine members of the Court.

Recognition of Constitutional rights is not necessarily binary—often, they are nuanced decisions.

The right to gay marriage was an intrinsically binary proposition. Obergefell either had a right to marry or he didn’t. There was no room for nuance there, for degrees or shades of a right. Conversely, the right to abortion had ample room for nuance. The Court found that Roe had a right to an abortion through the second trimester. The line might have been drawn elsewhere or defined on some other basis.

In the Miller or Heller decision, the Court might have driven a stake through the heart of the right to keep and bear arms. It did not. In McDonald, it might have confined Heller’s right to the District of Columbia and the U.S. Minor Outlying Islands. It did not.

Perhaps another case will bring Second Amendment rights to the US Virgin Islands and Northern Marianas (overturning the infamous and racist Insular Cases.) We should expect to see the rights to arms defined gradually, along new dimensions other than geographic.

These decisions set the Court on a path of incrementally establishing the bounds of the individual right to keep arms, which as of now indisputably covers handguns in the home. Many other facets of the right to arms remain to be adjudicated.

It is difficult to imagine the Supremes making a single binary decision concerning the entire scope of the right to keep and bear arms. It wouldn’t happen even if Trump nominated all sitting members of the court.

The Supremes are most apt to move deliberately in extending the scope of the people’s right to arms. Each decision they adopt is most likely to move a single boundary at a time, even as it enlarges that scope.

The cases most likely to be granted certiori (to be accepted by the Court) are those that seek the smallest measure of relief. The Supremes are most likely to expand Second Amendment rights by adjudicating only those cases seeking incremental change. Each case won will add a brick to the wall that guarantees these rights. Each brick extends the course upon which the succeeding courses can be laid.

After Kavanaugh takes his seat, it is critical that Roberts conclude that he has no viable alternative but to join with the four more conservatives justices to expand the right to arms.  In the interest of collegiality, Roberts is likely to urge findings that would invite one or more of the liberal four justices’ concurrence.  Conventional wisdom has it that much of the limiting dicta in the Heller decision was necessary to negotiate Kennedy’s swing vote. For example, had Scalia not commented that machine guns were “not in common use”, Kennedy might not have concurred with the “individual right” doctrine.

Whatever limitations on Second Amendment rights established through such compromises would endure. The doctrine of stare decisis will enshrine these indefinitely. Even if Trump eventually nominated all 9 members of the Court, they would be unlikely to reverse a previous decision.

No one hero nominated will kill gun control at a stroke. The right to arms will live in safety the same way most other nuanced rights have been enshrined. The tactic of “death by a thousand cuts” will become the tool of the gun rights side against the gun-and-people control advocates who have used it until now.

 

’MarkPA’ is trained in economics, a life-long gun owner, NRA Instructor and Massad Ayoob graduate. He is inspired by our inalienable rights to “life, liberty and the pursuit of happiness” and holds that having the means to defend oneself and one’s community is vital to securing them.

This article originally appeared at drgo.us and is reprinted here with permission. 

comments

  1. avatar Antique Rifles says:

    Still waiting for him to actually become a Justice… until then, I’m not counting on him being part of SCOTUS.

    1. avatar How_Terrible says:

      ^This

    2. avatar Arc says:

      Will likely be a swing vote on 2A, and the end of the 4A.

      1. avatar Danny says:

        American politics always gives us a choice, but nowadays it’s the kill-your-dog or kill-your-horse variety.

  2. avatar jwm says:

    Trump has not only to load the scotus. He has to load lower courts and if at all possible it is past time to break up or abolish the 9th circuit.

    He will have 2 full terms to do so and apparently he will keep a majority in the house and senate. The left appears to be intent on self destruction.

    1. avatar Rincoln says:

      *Crossing fingers and toes (but not streams)

    2. avatar TexTed says:

      It is FAR from certain that the left will fail to retake the House. After the Socialists got pimp-slapped in the primaries, I would expect a strong reassertment of traditional democrat principles, which will make them much more electable.

      There’s still, what, 90 days or so until the midterms. That’s a long, long, long time in politics, long enough for the democrats to totally change the talking points and exterminate the socialist mania that’s been happening.

      1. avatar jwm says:

        If the dems were being run by sensible folk you’d have a very valid argument. But the loony left are firmly in control and they are going to take the party down. In flames.

        1. avatar HP says:

          I don’t think either of you are wrong. I just worry that too many people out there are unaware of what the Democrats have become and will blindly support them in the mid-terms. God help us.

        2. avatar Jeh says:

          Anyone with functioning eyes and a dimly functioning brain can see what the democrats are. Notice that the commiecrat socialists never protest, riot, or throw their delusional tantrums anywhere away from a heavily urbanized area on the coast……..their bullshit doesnt fly in flyover country as the primaries in my state and others just proved…..

      2. avatar CarlosT says:

        It’s the Senate that is the area of concern. The House can go to the Democrats and life will get difficult for Trump. If the Senate flips, any thoughts of further judicial appointments can be completely discarded.

        1. avatar ollie says:

          ^^^^^^ Says it All.

          With a GOP Senate, we get Trump’s SCOTUS picks and a stopper on the House.
          No new laws is not necessarily bad.

    3. avatar Hannibal says:

      Strategically, you might want the 9th circuit exactly where it is, from a national perspective. They get overruled more than anyone else. Every time they get overruled, the law of the land is effected positively for the 2nd. I would argue that the courts covering NYC, NJ, etc are more insidious because they manage to keep citizens disarmed while using rationals the higher court has more trouble dismissing (home rule, state’s rights, etc).

      1. avatar DDay says:

        obama was able to stack the 4th circuit, that is actually as liberal as the 9th now.

        There are a lot of openings on the 9th now and more to come since there are so many clinton judges on there who are getting towards retirement age. It won’t be surprising if trump gets to pick 1/2 of the 9th’s justices (15 or 16 of the 29) Trump can remake the 9th.

  3. avatar New Continental Army says:

    Gun control is far from dead in this game. There’s still a ton of time and ability for the Antis to get everything they want. Right now, it’s merely half time, and we’re up by a touchdown. The next half of the game will begin when the new Congress is seated after the midterms.

    1. avatar Jeh says:

      Not when the president has veto power

      1. avatar Adam says:

        You make the incorrect assumption that our current president is pro-gun. Let’s look at the facts, so far he has stated that he is anti-bump stock and anti 3D printed guns. He hasn’t really discussed any other gun issues so we don’t know where he stands.

        I would give him a C rating so far. He picks incredibly pro-gun justices but is anti-gun on basically all the other issues that have been brought to his attention so far.

  4. avatar JOHN B THAYER says:

    The Second Amendment must be “incorporated against the states” and the doctrine of “strict scrutiny” must be applied to any and all limitations on our 2A rights.

    Those two should pretty much fix things IMHO!

    1. avatar TexTed says:

      >>The Second Amendment must be “incorporated against the states” <<
      It already has been, in McDonald vs Chicago.

    2. avatar Gman says:

      As long as loony lefty activist judges exist the Dems will continue to infringe upon our 2nd Amendment rights. The pretzel logic is strong with them.

  5. avatar GoD says:

    All Justices,Politicians,Judges,Congress not standing by and upholding the original Shall not be infringed 1791 2nd amendment should be impeached or arrested. Too Many Fudds! Every Good Law Abiding American should have a full auto suppressed machine-gun etc…

    1. avatar arc says:

      This. Prosecute the oath breakers.

  6. avatar former water walker says:

    Nice effort Mark but I’m not holding my breath. What has Donnie done other than nominate?!? Nothing substantial for 2A-and negative chit. We’ll see!

  7. avatar Gman says:

    Until the ridiculous opinion that rights are subject to limitations (they are not) is put to rest then we can continue to expect SCOTUS to allow states to infringe upon our rights. Even Scalia was wrong. No law is Constitutionally acceptable which restricts the free exercise of any right. Laws punish such exercise that infringes upon the rights or harms others. The infamous quote “You can’t yell FIRE in a crowded theatre” is absolute rubbish. Yes you can. No law prevents you from doing it. The word fire has not been banned. If such exercise then harms others, sure laws can punish that act. Following that proper logic, no law which infringes upon the free exercise of the keeping and bearing of whatever arms may be useful to military (ergo militia) service (United States v. Miller, 307 U.S. 174 (1939) is Constitutional. BTW, simple reading of Miller negates the entire 1934 NFA and any restrictions of equipment useful to the military, including machine guns. Why that has not been challenged is beyond me. And the left’s continuous rattling about “weapons of war” is nothing but stupidity re Miller.

    1. avatar TFred says:

      “The infamous quote “You can’t yell FIRE in a crowded theatre” is absolute rubbish.”

      EXACTLY. Everyone needs to know this, and shout it from the rooftops.

      It is not only not illegal, if the theater is actually on fire, then it would be quite prudent to do so!

      The appropriate analogy between gun-control and “fire in a theater” would be if laws were passed to forbid ALL SPEECH in a theater, just because someone MIGHT yell “fire”, inappropriately.

      It’s called prior restraint, and no other fundamental right suffers its imposition. Try telling someone they can’t write a letter-to-the-editor, or post on Facebook any more, just because the government might not like what they say.

  8. avatar Jim Bullock says:

    Can we do away with that unfortunate chimera “conservative?” “Conservative” of what?

    Process — This is how we do the making law things
    Scope — This is what we can do this way: rulings, law, administrative findings
    Policy 7 practice — What has come before. Well, this has worked so far.

    Now, a good revolutionary, intent on “The New Thing Right Now Because I Know Better” dislikes all three: they are more or less the same impediment, with different roots. Thus, “conservative” for all three.

    But, judges are “conservative” in different ways depending on what kind of “conservative”:
    — No, you can’t just declare that: you gotta make a law
    — No, you can’t legislate on that, it’s out of scope: go make an amendment
    — No, we shouldn’t do that because it’s new and scary, so I’m not going to let you

    Kavanaugh is very much a conservative of the first kind. He’s more a conservative of the second kind than other “conservatives” among the Supremes. He doesn’t seem to be much of a conservative of the third kind, although the Bat-guano opposition, intent it seems of Getting More Trump, make a spectacle of *personal preference as policy* with every judicial show trial confirmation.

    The useful question for those kind of clowns is: “If you repeal the 2A, which way will this guy rule on gun possession among citizens, do you think?” If the “conservative” judge will rule “No guns for you.” then, what’s the objection?

    In addition, Roberts in particular seems to be incrementalist — preferring the more constrained impact of law or especially judicial decisions. This is the opposite of “activist” judges, who generally seek the broadest sweep of consequences. So, Roberts will work to decide on an aspect of the ACA narrowly, deferring to the legislature. (Roberts concurrence on That ACA Ruling: strategic to get it written narrowly?Roberts the incrementalist appointment as Chief Justice: GWB’s greatest legacy as president?) The 9th circuit will look to decide “No immigration control for you, Mr. President.” broadly: to them, that this nullifies an enumerated presidential authority is a feature, not a bug. Being Californian (essentially), the notion of dictating from their province to the rest of the nation is likewise a feature, not a bug.

    Messaging — we need some crisp sound-bites breaking down these distinctions, probably one piece per bite, and applying them to 2A topics.

    “Well, as written, that bump-stock ban makes rubber bands a felony.”

    “?What?”

    “Read the words. That bump-stock law, like the “assault weapons ban” proposal last year, sweeps up all kinds of stuff that isn’t in your quick-take,.”

    “?What?”

    “As written that bump stock proposal makes rubber bands a felony. It’s worse than that, it bans about 80% of firearms we use all the time, without modification.”

    “?What?”

    “Did you see the words ‘more rapid firing’ and ‘mechanically assisting reloading?’ Semi-auto means self-loading: you can fire faster. Lever action, like the father on that TV show: helps you load so you can “fire faster.” Pump action, you know that ‘chuck chuck’ of an action-flick shot gun: yeah, helps you mechanically, so you can load faster. Hell, your grandfather’s bolt action army rifle is mechanically faster than muzzle-loading muskets.”

    “?What? We don’t mean that.”

    “It’s not about muskets? ‘Musket’ Morgan sure thinks the 2A means ‘Back to muskets.'”

    “?What?”

    “Well write what you mean, because some enterprising DA is going to push whatever they can through the law. Or some court may take political polemic as law — they’re using campaign statements to nullify an executive order. Apparently that stuff counts.”

    “?What? Nobody means that about this?”

    “BTW, maybe *you* don’t mean that, but somehow I think “I’d take all their guns away.” Cuomo or DiFi kinda know what that language means, and like it. They’re in the politics (and over-reach) business, after all.”

    Or something…

    Meanwhile #morepopcorn, and “If you want more Trump, this is how you get more Trump.” The idiot “resistance” still hasn’t figured out that *they* elected the current President: they are the only people who could make their own candidate and policies so distasteful, they’d drive enough people to “Anybody, or thing, else.”

    Meanwhile, SMOD is officially running in 2020. I have hope; for some change.

  9. avatar Nanashi says:

    Expect another “moderate” gun grabber. Kavanaugh went out of his way to express that in his interpretation of Heller the most common firearm in the world was not in “common use” and not protected by the Second Amendment. Instead he asserted the circular idea that “common use” refereed to legal civilian ownership alone and because it had been banned for civilians it was not in common use by civilians and therefore could be banned for civilians. That line of thinking is inappropriate for any judge, let alone one on the Supreme Court.

  10. avatar Lowell says:

    If you put any stock into the idea that men are continually hearing from God( I do)
    http://www_sordrescue_com/

    Mark Taylor predicts(prophecies) that Trump will get five justices. One to replace Scalia. One more will retire. Three will be caught in scandal and removed, perhaps even indicted.

    Roe v Wade will fall to this court once all five are installed. Taylor didn’t say which three, only that it will surprise you.

  11. avatar Edward R. Franklin says:

    I wouldn’t be so sure on Sotomayor making it through till the end of Trump’s presidency. Apparently she is a severe diabetic and is having pretty bad issues with it, knowing how that sort of stuff works and how bad it can affect someone she could very easily be off the bench in a few years if medical stuff takes a downturn. RBG has stated her intent is to hang around till the heat death of the universe because her golden opportunity to gracefully step down for the first woman president exploded in her face. However, that woman has been through cancer a couple times, heart surgery once, and if you ever keep an eye on her when she makes rare public appearances she tends to fall asleep. She may very well be on the fast track to senility and her decisions are being crafted by her clerks.

  12. avatar Andrew says:

    Sorry but the second isn’t nuanced. Shall not be infringed leaves no room for interpretation. Any law that prevents me from keeping or bearing arms for so much as a split second has infringed my right and is unacceptable. A tax above the rate for any other normal purpose, ie sales tax should also be construed as an infringement in the way of a poll tax. As to who this restrains from action, this too is an easy question to answer. The first amendment states that congress shall pass no law, and so requires incorporation to bind the state and local governments. If this was the founders intent they could have written similar wording into the second. The second prohibits infringement period, without caveat by any and all lawful means.

  13. avatar Jonathan-Houston says:

    “The doctrine of stare decisis will enshrine these indefinitely. Even if Trump eventually nominated all 9 members of the Court, they would be unlikely to reverse a previous decision.”

    That may have been true in the past, but with today’s rabid liberals, no more. You have candidates like Hillary and justices like Breyer and Sotomayor openly proclaiming that they would overturn Heller if they had the votes. Kagan’s an immoral and unabashed gun grabber who wouldn’t hesitate to ditch precedent and join them.

    There’s no respect for the Constitution, let alone prior SC decisions. All that matters is whether they have the power to do what they want. Whether it is legal, constitutional, right, or proper is irrelevant.

    Of course, once they get their ruling, then instantly and permanently the matter becomes “settled law” and impervious to further review. Today’s Supreme Court is more accurately characterized as a Super Senate. Get enough votes and anything goes.

    Government unanchored by constitutional principles and driven only hook or by crook of simple majority transforms our institutions of democracy into appliances of aggression. This is why every election in an s-hole country turns into a war or at least riots: every election is winner take all with no protection for individual rights. That’s where the U.S. is headed. Thank you, liberals. Expect the latter half of this century of this country’s history to be remembered centuries hebce for its unimaginable carnage.

    All of those senseless conflicts of the past, the ones about which that even the dimmest of high school students today remark “How could they have been so stupid to do that and not to have seen that coming?”, will accept America into their ranks amongs history’s most insane eras. Future high school idiots will mock us for having self-destructed the greatest nation the world had ever known. The turning point is the Supreme Court.

  14. avatar Sam I Am says:

    Interesting observation – but….

    The term “expanding” rights is troubling. The courts cannot expand rights (courts can pervert the constitution). “Restore” should replace “expand” in this posting.

  15. avatar Stateisevil says:

    We get nothing, and like it. As always.

    1. avatar jwm says:

      Your mommy didn’t hug you enough when you were little, did she?

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