What to Expect From A Kavanaugh Supreme Court – Part 2

courtesy rollingstone.com and Zuma Press

By MarkPA

[Ed: In Part 1, the author discussed the likely process of change toward less infringing interpretations of the Second Amendment. Here, he speculates about what might likely change, and what results might develop.]

The website Bearing Arms suspects that Trump’s pending Supreme Court nominee, Brett Kavanaugh, might support training or testing requirements to be issued an arms permit. Gun rights advocates will express principled reservations and practical concerns about any such development. Gun control advocates are likely, as always, to take a mile from that inch if they can.

We all should share a mutual objective of responsible gun ownership. That goal might well involve training, testing and live-fire qualification. Aside from the constitutional issues at stake, shouldn’t we be interested in promoting some such measures.

Would any training, testing or qualification regimen be worthwhile? Reasonable commentators might differ. In some places, youth are reared with intensive training in safe and effective gun usage. In others, there is an appalling lack of exposure to even the rudiments of gun safety. Perhaps there is room for differences among the several states as to how to approach this question.

One Constitutional approach would be for Congress to exercise its explicit power “To provide for organizing, arming, and disciplining, the Militia . . . “ and for the states to “train . . . the Militia according to the discipline prescribed by Congress;”  Before leaping to a Federal solution, however, we can look at the fifty states as laboratories in democracy.

There is already a well-developed system of “reciprocity” in bilateral recognition of state Concealed Carry Permits; and even unilateral recognition by one state of all other states’ permits. Some states beef-up their own requirements with a deliberate objective of qualifying their residents to carry in more sister states. Other states adopt an entirely nonchalant attitude and allow anyone to carry without a permit. And there are many graduations in between.

Let’s predict that a future Supreme Court holds that the right to carry may not be denied to any qualified citizen. “Shall-issue” would become the law of the land.  Each state, and some municipalities such as New York City, would be compelled to issue CCPs to any qualified applicant, including non-residents, who meet objective criteria.

The existing system of bilateral reciprocity and unilateral recognition would remain. A typical gun carrier who travels interstate could elect to obtain the few permits required to carry in the states in which he actually travels, if one does not provide reciprocity for all of them.

The practical difficulty would be with the most stringent jurisdictions: California, Hawaii, Massachusetts, Maryland, New Jersey, New York and New York City, and the District of Columbia. These restrictive jurisdictions might be tempted to limit reciprocity to other similarly restrictive jurisdictions, but their efforts would fail under nationwide “shall-issue” rules. Any American could acquire a permit from the most restrictive state by meeting its requirements.

States could try to restrict the opportunities and number of applicants (e.g., by limiting the number of authorized trainers, demanding exams be taken at a single local site, etc.)  These requirements would be met by lawsuits. But more importantly, they will prove futile when non-residents can “shop” the less onerous issuers. We could hope this leads to the various jurisdictions negotiating standardized qualifications. There might be several levels of requirements, but states could begin offering to certify applicants for whichever degree of reciprocity they choose.

This sort of solution should promote responsible gun ownership and carry throughout the nation while respecting local standards. “Constitutional carry” states would continue to offer permits (having corresponding training) to facilitate travel in other jurisdictions. At the same time, the more stringent standards of the more demanding jurisdictions might “trickle down” to other states as the means to meet them become widespread.

It is interesting to speculate on what path the next Court will take as it moves into a supportive stance on Second Amendment rights. It is likely to be a rather drawn out, case by case process, enhancing our rights but not voiding all restrictions with one blow.

Whatever decisions are made, there will be unintended consequences as anti-rights politicians try to evade new law, which could surprisingly lead to new opportunities for the pro-rights community.

 

’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 post originally appeared at drgo.us and is reprinted here with permission.

comments

  1. avatar frank speak says:

    any attempt to restrict seniors…[who need this protection the most]…should be resisted…

  2. avatar NJGunOwner says:

    I can easily see NJ setting the qualification bar for civilian carry to be higher than required of SWAT units and claim they will issue, as long as those are met, which will severely limit the number issued. I also believe that states like NJ, NY, etc, whose politicians, and majority of residents, are openly hostile to gun ownership of any kind, yet alone carrying outside the home, that they will do anything they can think of to make it impossible, including open hostility by other residents at places that will do the qualification tests so that people would have to run a gauntlet to get those permits. This is tactic currently used against Trump supporters. They may also make it virtually impossible by law to use the gun for self defense outside the home without landing in jail. So I see this as a pipe dream

    1. avatar 2aguy says:

      Even the standard police training for firearms is prohibitive for most people to do. 16 hours here in Illinois keeps a lot of people from being able to get their carry license, with family and work obligations, they just don’t have the time to spend 16 hours sitting in classes to get the permit.

  3. avatar pwrserge says:

    The big thing I see is Kavenaugh taking “assault weapon” bans off the table. His previous opinions on point would seem to indicate that such a ban would be, in his opinion, unconstitutional.

    Take bans off the table, you have only carry as the battleground and even the 9th circus is having a hard time holding back the tide there. The reality is that a circuit split already exists with Moore v. Madigan. Thus, prime conditions are already there for the SCotUS to take a concealed carry case.

    1. avatar Jeff says:

      Carry and bans aren’t the only issues.

      Training requirements, other requirements, fees, red flag laws, rosters of allowable guns (which the 9th circuit doesn’t think is a ban…), ammo restrictions, waiting periods, forced testimony (when trying to buy a gun), storage laws, magazine capacity and other accessory questions, NFA weapons/accessories (like SBRs and suppressors), manufacturing/modification rights, myriad non-violent gun crimes (handling, transportation, etc), rights of felons, rights or minors and their parents, and registration are all issues that come to mind.

      1. avatar pwrserge says:

        They are the major ones. Get those two, and the gun grabbers are on the ropes.

        1. avatar Geoff "Mess with the Bull, get the Horns" PR says:

          I potentially see training requirements in states like NY, Hawaii, Cali, ect. Really onerous ‘requirements’.

          The easiest way to keep a lid on those is to make sure for marksmanship, for example, is for citizen requirements to be no more than that for LE. Since the average cop is a somewhat lousy shot…

      2. avatar DDay says:

        If SCOTUS takes down AWB’s, they will end the roster BS states like MA and CA have. It’s the next logical step for a court after the AWB is ruled unconstitutional.

  4. avatar Gregory Peter DuPont says:

    Making training and certification universally AVAILABLE vs MANDATORY is a better option.
    Go back to offering the training and safety course to minors in school (pick an age/grade to start) along with CPR/First Responder Training.
    Make it available outside of schools(city? County? )At COMMUNITY level. All politics is local right? Let’s try that.
    Don’t limit it by tying it in to any access point (Scouts/Explorers/JRROTC 4H school etc)-go for it all. Our enemies do:they seek early indoctrination,we should offer early illumination.
    Call be Brother Illuminator.

    1. avatar skoon says:

      This is the right idea. Free training. If not free you pay up front and it is a tax deductible expense. I also though buying a safe should be a tax deductible purchase as well.

    2. avatar LarryinTX says:

      Any and all mandatory training and/or qualification or licensing should be 100% paid for by the taxpayer who requires it. I don’t need it, don’t particularly want it, if you say I have to have it then you should pay for it. All that crap would disappear in a week, it is all about preventing you from having a gun. Without paying anything for it.

  5. avatar Andrew says:

    You just take a 30k swat course that takes 2 weeks a year and you can carry a 2 shot derringer. They technically meet the law as you propose it and still no one can carry. While I always promote the safe ownership of firearms, required training is entirely unconstitutional. It only serves to disarm the average person, while maintaining the status quo in places that aren’t predisposed to respecting constitutional rights. No more compromises and not one more inch. We only lost our rights this way.

  6. avatar WhiteDevil says:

    Am I mistaken or does the 2nd amendment include the word “bear” in it? As in, bear arms. I will never understand why people choose to comply with illegal and blatantly unconstitutional laws. I know people will just not want to go through the hassle of being charged with carrying without a permit, but, the charge itself is ilegal per the 2nd. If a right requires a permission slip to be exercised, then it is not a right to begin with.

  7. avatar Sam I Am says:

    It is always great to be ahead of the curve.

    (Disclaimer: I am an absolutist when it comes to the type and number of weapons of war a person may possess)

    On a number of occasions the powers of congress to regulate the militia (through the states) were made quite clear by my referencing the “militia clauses” in the US constitution. This Kavanaugh posting makes the same claim. The nuance is that the militia clauses are permissible “infringements” (inconveniences) on RTKBA. That is, absolutists are speared on the very constitution they want to use as proof that there cannot be any regulation of RTKBA, in any manner whatsoever (i.e. training requirements, proficiency requirements).

    The second amendment does not repeal the militia clauses. Congress has long shirked its responsibility to the militia (which is not defined as military reserve or national guard units), but even that does not render the second amendment absolute (as regards provisioning and training the militia). The second amendment prohibits congress from destroying the militia by denying the militia arms and armament. The second amendment actually foresees congress failing to keep its responsibilities to the militia: if congress will not equip the militia (as the constitution requires), then the militia may arm itself without legal interference by the central government, or standing army. The question, then, becomes not whether or not congress may regulate the militia, but the extent to which that regulation may travel in a manner that would render the militia moot. To wit, publishing training (and proficiency) requirements that would e unobtainable by members of the militia. However, neither the militia clauses, nor the second amendment establish that congress cannot create and enforce onerous training requirements. It was left to the state representatives of the people to deny congress authority to make it impossible for the militia to operate.

    And, on a related note, the militia can be “called up” by congress as a tool to enforce federal regulations. Which sounds like congressional control of the militia (a whole ‘nuther discussion) for certain circumstances.

    1. avatar Andrew says:

      The militia clause provides for the organizing, arming, and disciplining of a militia by congress. There is no part of the clause that discusses congress barring the population from owning such arms as they desire. Disciplining, or training could also be authorized, but there is no basis to use that as a means to deprive the populace of arms. The government could supply the militia with arms as they saw fit, if they called for a militia. The second amendment, as written, allows for no infringement to the right to keep and bear arms. The opening clause, “A well regulated militia, being necessary to the security of a free state”, is a prefatory clause. It offers explanation, but doesn’t link the second part of the sentence to the first. The operative clause, “the right of the people to keep and bear arms, shall not be infringed” secures the right to the people. The people, in this case being everybody. The right has nothing to do with militia service. It needs no justification to the type and quantity of arms chosen by the public. Another important point to consider in the wording is who is prohibited from infringing this right. The first amendment specifies that congress shall make no law. This is important because it shows that the founders made the choice only to restrain the federal government. The first had to be incorporated to the states by the fourteenth. No such wording exists in the second as it was designed from the start to restrain all infringement. Any gun control law, or conditions of ownership, manufacturing, transportation, and sales of firearms constitute an unconstitutional infringement. Examples of this include carry laws, dealer or manufacturer licensing laws, special taxes or fees levied against only firearms ( General sales tax would still be ok), and transportation laws. Background checks would also be verboten, as the government is specifically prohibited from deciding who gets to own a firearm. Although there may be some social utility argued for them, their very premise flies in the face of the protected right. Tl:dr no gun laws are acceptable

      1. avatar Sam I Am says:

        And?

        The original post did not hold forth any notion of federal control over possession, manufacture, transport of firearms. The thesis in the article is that the federal government (congress) CAN establish national, mandatory training requirements; requirements that are not de facto infringements on RTKBA. So far, congress has failed that responsibility, and the states have failed to demand congressional prescribed training instructions for the militia. Meaning the states are failing their constitutional responsibility to train the militia.

        The idea that congress could create lawful training requirements has not been pursued by either the anti, or pro gun tribes. Once that idea picks up interest (and it will be interest only on the anti-gun side), it will become a battle to prevent the federal government from pushing training requirements beyond sensibility. The pro-gun tribe will continue to claim that constitutionally authorized training requirements are an illegal infringement upon “gun rights”. And once again end up engaged in a fighting retreat.

        1. avatar Andrew says:

          First the second prohibits infringement from all government, not just the feds. Second, any mandatory training, presumably as a prerequisite to owning, or buying firearms, is an infringement. Third, congress has the discretion to prescribe training related solely so militia service, but is not obligated to do so. Therefore it isn’t derelict in its duty, as it is exercising its discretion. Maybe they could get away with it if it were free, and every citizen had to go through it, but even that is stretching it. It would not be acceptable for any other right to require training to exercise it. How would it go over if you weren’t allowed to type on the internet without passing government training? The idea on it’s face is preposterous. Mandatory training to exercise a right is infringement, and congress doesn’t have the ability to infringe if it follows the constitution. We should never be the ones to suggest a potential infringement, as we will be fighting it forever once the other side co-opts it.

        2. avatar Sam I Am says:

          No, militia training prescribed by congress is not an infringement; can’t be. But such power is, as you note, not mandated; simply allowed, provided for. However….

          Nothing prevents congress from declaring that any member of the militia must be trained in proficient and safe handling and maintenance of firearms. Since “the militia” is now considered (especially by POTG) every able bodied citizen, persons without documented training could be considered derelict, and thus subject to discipline prescribed by congress (which could include travel with firearms beyond the state of residence). Discipline could not include banning possession of firearms (the second amendment remains intact), but could perhaps include limited restrictions pending currency of training.

          The point of it all is that the second amendment is not kryptonite. There are potentially permissible conditions, IAW the constitution, that negate the idea of absolute rights of possession of firearms. Many will scream that no conditions of any sort can be applied, but that flies in the face of Article 1 clauses. Such temper tantrums will not prevent congress, and then the states, from establishing militia clause laws and regulations. The finality would remain with the courts, and with all the burden of enduring the legal processes.

          Remember, “shall not be infringed” has never won a gun control case of any kind. We need to be more agile of mind and action than protesting “from my cold dead hands”.

      2. avatar LarryinTX says:

        I am down for the “arming”. Can they just mail me my M4 and a couple cans of 5.56 to start? If I am too old for the militia now, don’t they still owe me a couple from back when?

        1. avatar Sam I Am says:

          Congress would probably provide replica English Brown Besses. You know, flintlocks.

  8. avatar former water walker says:

    No freaking requirements! Constitutional carry works(or close) My model is the state a mile from me-INDIANA. No requirements and lifetime carry for(I believe) $175. Open carry too.No bloodbaths like Chiraq. Crime problems mostly in (you guessed it) areas similar to the South and Westside of Chicago. I don’t expect anything from Kavanaugh. I hope for the best…

  9. avatar D Bruce Smith says:

    The 2nd Amendment is what it is and says what it says, nothing and no one changes that. It alone gives us freedom to carry anywhere in the U.S. Anything to the contrary is unconstitutional.

    1. avatar Green Mtn. Boy says:

      This !

  10. avatar stateisevil says:

    We ain’t getting shit from SCOTUS or Congress, ever. Always the same refrain.

    1. avatar pwrserge says:

      We got Heller.

  11. avatar Green Mtn. Boy says:

    “We all should share a mutual objective of responsible gun ownership. That goal might well involve training, testing and live-fire qualification. Aside from the constitutional issues at stake, shouldn’t we be interested in promoting some such measures.”

    I fail to read that in the Second Amendment other than A Well Regulated Militia.

    It is just another Infringement of a God given/natural right and a opening to even further infringement.

    Training is helpful and it’s something many do however we have become use to a infringement put in place as a way to strip away a right.

  12. avatar NOVA says:

    Ultimately the 2A is clear. Carry doesn’t require a permit, etc.

    As for the next SCOTUS nominee, I went to high school with him. Nice guy. He has wanted this job since then. He is a Roberts fan boy and will follow him into hell.

    He’s a RINO.

  13. avatar Crabbyoldguy says:

    Shall not be infringed. If the states want to be in the permitting business, why can’t they just compete on quality of service and benefits?

  14. avatar Bob Watson says:

    The Federal Government may not deprive anyone of any right without due process. The Federal Government can offer state, county and local governments cash prizes and other goodies to voluntarily surrender their powers or perogatives. Grants, low interest/no interest loans and other inducements could entice the various states to adopt any federally dictated national standard.

    Would that be a good idea? Consider how well Federal involvement in education, health care, agriculture or any other area has worked out over the past century. Be careful of what you wish for.

  15. avatar Randy says:

    “… training, testing and live-fire qualification”.

    Look what similar requirements have done for the issuance of drivers licenses — in a lot of cases worthless.

  16. avatar Mad Max says:

    Isn’t all we really need a clear decision that the 2nd Amendment is subject to strict scrutiny like the 1st Amendment?

    1. avatar Sam I Am says:

      “Isn’t all we really need a clear decision that the 2nd Amendment is subject to strict scrutiny like the 1st Amendment?”

      The SC is not going to make that ruling; cancels out too much room for equivocating. Congress cannot demand, via legislation, such policy/procedure. Overall, all federal courts prefer to make rulings on non-constitutional bases. The prefer to rule on procedure if at all possible. Ruling on procedure avoids the messy question of which level of scrutiny applies. This is in concert with their proclivity to “find” a contract where none exists. Several SC Justices have also declared they try to find legislation valid at almost all costs (congress “intended” to legislate something, it is up to the courts to determine what that is).

      The recent SC rulings that union dues somehow violate constitutional rights is a bit out of the mainstream for the SC. But note, although the SC was happy to accept three union dues cases in the last four years, they are loathe to deal with 2A cases. Heller and McDonald did not encourage the SC to deal with “shall not be infringed”; the court found other grounds that would maintain most existing gun controls. Kavanaugh, by the way, looks to tradition and history (in his own words) as the proper and best court guidance for deciding constitutional issues, not to the bald language of the constitution. To be consistent, Kavanaugh cannot ever rule “shall not be infringed, in any manner whatsoever”.

      1. avatar Mad Max says:

        It depends on which “tradition and history” he chooses to look at; everything contained in Joyce Lee Malcolm’s book and everything through 1934, or everything since.

        If Kavanaugh is truly an Originalist, it will be the former.

        1. avatar Sam I Am says:

          Tradition and history of court cases regarding gun control laws. His idea is that if there are numerous cases ruling a particular way, then there is no reason to move to “scrutiny” levels. Thus, since NFA has not been overturned, or modified to lessen restrictions, the constitution is irrelevant. Long standing registration laws and laws regarding concealed carry are likely to stand, without any consideration of the wording of the second amendment. I.E. Kavanaugh appears to defer to common practices vs. considering government action in light of the constitution. The logical extension is that “hate laws” are permissible because they have been accepted without rebuke from the courts. The idea that tradition and history moot a constitutionally protected right is not promising for loosening, or removing the host of gun control laws. Maybe one or two here and there, but only if they conflict with established practices. Do not expect Kavanaugh to side with Thomas in pushing for inquiry into whether the second amendment is a second class right.

  17. avatar 2aguy says:

    Sorry…. you can’t have a test for the exercise of a Right…ever. The democrats used Literacy Tests to keep Blacks and the poor from voting…if it is unConstitutional to use tests for Voting Rights, it is unConstitutional to use tests for Bearing Arms. If you look at Europe, one of the ways they limit ownership of the limited number of hunting shotguns is testing. They make the testing requirements so expensive, and time consuming that normal people, who aren’t rich or politically connected, can’t afford to get the license, therefore, they are effectively disarmed. You know that if any testing requirement is said to be Constitutional the anti gun democrats will pass testing requirements that are so expensive and time intensive that no one will be able to pass them. This is a non starter at all levels.

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