Judge Brett Kavanaugh Supreme Court Vacancy Nominee
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President Trump tonight nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the DC Circuit to fill the Supreme Court seat vacated by the retirement of Justice Anthony Kennedy who occupied the Court’s so-called middle seat. If confirmed, Kavanaugh will likely move the center of the Court decidedly to the right, though by how much remains to be seen. The betting among Court watchers is that Chief Justice John Roberts will likely assume that middle position going forward.

What would a Justice Kavanaugh mean for gun owners?

From reason.com:

Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia’s ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority’s use of “intermediate scrutiny,” saying an analysis “based on text, history, and tradition” is more consistent with the Supreme Court’s Second Amendment precedents.

The D.C. “assault weapon” ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. “The list appears to be haphazard,” Kavanaugh noted. “It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not.” In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.

“In Heller,” Kavanaugh noted, “the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, 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. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller‘s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.”

Like all of Trump’s finalists, Judge Kavanaugh is relatively young, only 53 years old, and could serve on the Court for 25 to 30 years, a factor that elevates the significance of the nomination. He could influence the Court’s direction for a generation or more.

Because of that, look for loud, lurid and sustained hysterics about Kavanaugh on the part of Trump’s opponents. The nominee will undoubtedly be labeled an extremist who will usher in a new dark age of racism, a resurgent Handmaid’s Tale-like theocratic patriarchy, back-alley abortions, the end of individual privacy and, yes, an “assault weapon” in every home.

But as Mark Thiessen writes, Democrats have little ability to do much to stop confirmation. And they have no one to blame but themselves.

When Donald Trump was elected and appointed Gorsuch to fill Scalia’s seat, apoplectic Democrats made a fatal error: Instead of keeping their powder dry until Kennedy resigned, they filibustered Gorsuch’s nomination. The decision to block such an obviously qualified nominee – praised for his impeccable temperament, character and intellect by legal scholars on both the left and right – freed tradition-bound Republicans to end the filibuster for Supreme Court nominees and confirm him with a simple majority.

Had Democrats not tried to block Gorsuch, they would still have the filibuster. And Republicans, who now have just a single-vote majority, would have a much more difficult time mustering the votes to change Senate rules today. But thanks to Democrats’ miscalculations, the GOP doesn’t have to.

Pass the popcorn.

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  1. I like it, but NEVER underestimate establishment Repub’s ability to snatch defeat from the jaws of victory…

    • Honestly, RINOs voting against this guy would be a huge benefit to Republicans as a whole in 2018. That will massively supercharge turnout immensely, and we’d most assuredly keep the house and expand the Senate beyond the reach of the cuckservatives that would bail. And then they will promptly be thrown out and replaced. It’s almost win win really.

      • That would be nice to see! I really don’t understand how these weasels continue to get votes year after year while doing a stunningly bad job.

  2. Hopefully we’ll get cert now on something attacking ownership of modern sporting rifles and settle that they are absolutely within the intent of the 2nd Amendment.

    • Hoping for repeal of NFA…GCAs…suppressors with no tax stamps…
      go for the goalposts…full repeals…

      • Not going to happen. Reason deliberately left this part of his opinion out
        “By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.”

        He’s a scumbag that beleives in arbitrary government instead of rule of law.

        • Right, ok, you’re never happy. I get it. The only acceptable person is you apparently.

        • Good luck with a militia lacking automatic weapons as a tool to rid the nation of tyranny. The VC, the Taliban, the whatever all had automatic weapons. The original minutemen has the latest in firearms, plus artillery. I cannot imagine a world where it is logical that the means for extreme measures to control a government are allowed to be controlled by that self-same government.

        • Have some perspective Nanashi. You could be stuck in a cave in Thailand.

          One cannot have everything one wants 100% of the time. Tonight is a good night for America.

        • New Continental Army. I agree with NANASHI. He’s not by any stretch of the imagination a constitutionalist. Shall not be infringed is absolutely clear. Even the USSC in Miller knew the Second was about armaments suitable for the battle field, which includes full auto weapons.

          This guy will be another Justice Roberts that made law from the bench when he got Obama Care passed by saying the penalty was a tax. Be prepared to be betrayed by this guy if he gets accepted when another significant 2nd amendment case actually gets to the USSC.

        • I wish fully autos weren’t so hard to come by because they are fun, but most vets I know didn’t use fully auto when they served. I just talked to a disabled Marine vet the other day who always used semi-auto in both his tours of duty to Afghanistan while using his rifle. Double taps, repeatedly, for a very quick semi-auto fire when necessary. I think JWTaylor has said something similar about not using the fully auto on his infantry rifle (although I’m not quoting him).

        • Sam I Am….full auto isn’t the magic you think it is. The Vietnamese booted the French with bolt action and type 54 rifles (10 round stripper clips)

        • The VC had full auto, including mounted machine guns (BTW, the resistance against the French were termed “Viet Mihn”). Point being, full auto has a valid purpose. There is a reason SAWs exist.

          Accepting weapons restrictions from a government for which personal weapons are intended to resist seems just silly. Who, in their right mind allows “the enemy” to declare which tools may be used in a fight? Full-auto, explosives and “any other” weapons” being placed on a government list is “shoot me now”, when the worst becomes the only alternative.

          If we truly believe firearms and weapons of war are there to fend off a rogue government, how can we tolerate any restriction on our ability to fight an organized standing army? Read the writings of the founders. They had no sympathy for government out-gunning the citizenry. If we accept restrictions now, it means we are just mouthing slogans, with no real understanding of our right to self-defense against tyranny; we admit believing there will never really come a time extreme discipline of government will be necessary. It’s a binary proposition, folks.

        • Sam I Am, a tyrannical government would have a TREMENDOUS amount of trouble resisting a population armed with semiautomatics. And as some have pointed out, many do not even use automatic fire when in Iraq and Afghanistan. The M-16 I trained with when I went through Army OSUT at Fort Benning had semiautomatic and three-round burst, but no full-auto.

          And while I do not like the idea that automatic fire isn’t covered under the Second according to these judges, if we get a SCOTUS that is of the opinion that weapons like semiautomatic AR-15s and AK-47s ARE covered, and that so-called assault weapons bans are unconstitutional, that will be a MAJOR win.

        • Agreeing to restrict your ability to fend off a large standing army is bordering on insanity. If you accept that the central government has constitutional authority to infringe on your ability to protect yourself from tyranny in any manner, you have essentially surrendered to the concept that government is the natural and legitimate ruler of the people.

          Re-read the comments in this string. Note how many people are saying, “Oh, I hope, I hope, I really hope government will grant me some small permission to protect me and my community from government abuse of power.” You are asking government to relinquish a strong tool for controlling the populace. “The People” are beggars at the monarch’s throne room.

        • expect the legalization of silencers to make a comeback…also [possibly] short-barreled rifles and shotguns…ATF appears to be trying to lighten their load…

        • I agree in principal that the 2A covers machine guns, but in practice, we’ll be lucky if the MG registry is re-opened.

          The lack of giggle switches on modern militia rifles is not a huge detriment to their effectiveness. The only machine guns that are actually useful in war are belt fed. Plenty of LMGs, GPMGs, and HMGs could be liberated from government arsenals if needed.

          Given that a tyrannical state will move to seize and secure ammunition production assets immediately at the outbreak of hostilities, the lack of full auto capabilities early on will help ease the burden of militia logistics.

        • Insofar as actual tyranny is concerned, if machine guns are required to succeed, then use your semiauto ARs to shoot some government thugs who possess machine guns. Not even a problem. Unless you are actually planning to tyrannize some unarmed peons, this is not a crisis. What is a crisis is the lack of respect for 2A, which is supposed to be the law of the land.

        • The issue is not machine guns per se. It is the very idea that citizens must beg of government the ability to be a viable check on roguery of the central government. It was never a matter of putting militia at a firepower disadvantage they should have to overcome by capturing weapons fo the standing army. The second amendment is not a, “By your leave, sir” proposition.

      • Complete & full repeal of all the nonsense. No more fixed magazines 10 round or limited capacity. No more tax stamps. No more lies about guns and POTG. Start interpreting our constitutional rights as they were written by our founding fathers. N.Y. is the worst state to live in if you want an edc pistol. Plan on being under the microscope for 6 months. It takes the leftist idiots that long to decide if you are law Abiding & deserving. I am so sick of these idiotic morons ” it’s a clip fed magazine that shoots 9,000 rounds in a minute” ok tell me another maddening ignorant thought , I’ll be sure to pay close attention. ✋ is this USA ? Or Nazi Germany? I hope this justice knows the difference.

        • I think some of you are forgetting that it takes a hell of a lot for a case to be brought before the Supreme Court.

        • also expect the definition of “infringement” to make a comeback…invalidating many of these goofy-ass laws that are either in place or contemplated…

    • “Hopefully we’ll get cert now on something attacking ownership of modern sporting rifles…”

      Everything now hinges on Chief Justice Robert’s testicular fortitude.

      Unsubstantiated rumors are Kennedy asked Roberts to be the ‘conscience’ of the Court and not let the Right get “extreme”.

      We’ll only know when cases come up for consideration if they are granted cert. or not.

      Does anyone know what 2A cases are on-deck for the Court?

  3. Good. Watching it now. Seems like a solid pick. 5/4 now. Let’s keep pushing so we can get to 6/3, then 7/2.

    • It’s clear to me now that Kennedy’s retirement was fully orchestrated and I give a lot of credit to Trump. I have no doubt that Trump offered Kennedy the opportunity to name his replacement. Period. Kennedy understood that the midterms could change the chance of maintaining his legacy, so opted to go now. If Trump keeps the senate, there’s a better than average chance he gets at least 2 more nominations BEFORE 2020. Odds are that either Ginsberg or Breyer retire or die. Thomas may also be able to be convinced to retire and also name his replacement seeing that Trump has been a man of his word. If trump is re-elected in 2020, there’s no doubt he’ll have 3 more nominations.

  4. An assault weapon in every home. I like that. I’m telling you guys. Love or hate the donald we will have constitutional carry by the end of his second term.

    When the Berlin wall came down it appeared to be sudden, an overnight thing. The implosion of the left here is going to look the same. But it’s been a long time in coming.

      • I didn’t want to sound greedy. But an ak 74 with a folding stock would look good next to my pump shotgun.

        • Ohh hell yeah. Everyone needs an AK of some flavor. |3

          That said I personally favor those nice under-folding AKs. I like 5.45×39, but I dislike side folders that most 74 model AKs came with.

        • Aks74u sounds nice about now. My home built fully semi automatic just begs to be fully fully automatic. Well and it begs to have a triangle folding stock instead of a damn “brace”.

        • Those polish underfolders Midwayusa was selling kits for a while back were pretty sweet. Scooped up a few of them grab bags and was pleasantly surprised what sub $400 could get me out of some garage guns.

        • i would love to give one of the ARAK’s a go. they take the best of the AR and the best of the AK and put them together.

    • You are high on that Kalifornia weed jwm. We’ll get nothing and like it. Why would the last few centuries of this country change now? All he has given us is support for more infringement.

      • Well we can’t get everything we want immediately. But if nothing else, it’s a step in the right direction.

        • He’s kind of a gloomy gus. He’s a glass half empty kinda guy. Can’t imagine he’s any fun at parties.

          And the only reason I smoked weed is it made it easier to pick up hippy chicks. Who are now some ones grandmother.

  5. Wooo! This is the guy I was hoping would be the president’s pick. Of course the left isn’t going to make this easy, but given the dems were stupid enough to remove the nuclear option for supreme court nominations we’re not likely to have too much issues in the long run.

    • Same here. He has a documented history of supporting the 2nd Amendment and being a strict constructionist judge. Another step to restoring the US Constitution. There will be a lot of screaming and yelling and then he will get confirmed. Next step is for Ginsberg to collapse.

  6. Chris Murphy, the cnut from Connecticut, is calling Kavanaugh a “Second Amendment radical.” Yay!

    And the RINO wing of the GOP will find it hard to vote against a former higher-up in W’s administration. He was also a clerk for retiring Justice Kennedy — as was Gorsuch.

    This could be the signal event that solidifies 2A rights for the next 50 years.

    You can say anything you want about the Donald, but so far he’s given us an amazing economy and two Second Amendment Justices. It’s fantastic.

    And imagine the sh!t we’d be in had the pantsuit been elected Duce of America.

    • He believes machine guns can be banned under the 2nd amendment. Therefore, he doesn’t believe in it. Also, Roberts is a “progressive” who will not help us at all. You’ll need one more to even think about getting MSR’s, standard mags, and shall issue privilege cards for concealed carry.

      • Cry us a river… This has to happen piece by piece, bit by bit. There’s a few of you who seem to think you can sit on the sidelines and get it all at once by some miracle that’s not going to happen.

        BTW, who would you have nominated?

        • Lol! You’re just a bunch of cry babies! Oh, BTW, who would you have picked?

          Glad you asked! Kethlidge or Barret have shown a better committment to the constitution and originalist language.

        • “Glad you asked! Kethlidge or Barret have shown a better committment to the constitution and originalist language.”

          A sad lack of understanding ‘levendy ‘leven dimensional chess. Trump put up a sacrificial lamb, planning to “give the Democrats something” by withdrawing the nomination, and putting up the person he really wants. Standard negotiating technique: “Don’t like this one? Then here is another; take what you can get now, because the next offer is worse.”

        • @stereodude

          Nice to see someone else actually gets it. A lot of instant gratification snowflakes on this blog are complaining because they don’t want just one piece of cake, they want the entire thing and they want it now.

        • “…they don’t want just one piece of cake, they want the entire thing and they want it now.”

          The second amendment infringements happened pretty fast, once the efforts began. If our constitutionally protected rights can be eliminated in a single SC ruling, why not restoration?

          Incrementalism is for the timid, the fainthearted, the doubtful, the insincere, those following the ancient Japanese proverb: “The nail that sticks up gets the hammer.”

        • Yo, Sam, I can do incremental! To start, let’s repeal NFA 1934 and leave all else alone!! Sneaky, huh?

        • Getting courts to agree 2A is absolute solves all the problems, at once. Go for the throat. Go for the gold.

          Hammer the opposition, then hammer again. Keep coming back; it’s how successful revolutions are won. If you lose, double down. Then double down again. Keep hammering until the opposition gets tired of you, and gives up.

          Winning incrementally is dangerous because it is an American trait to move to the next shinny object, once a “problem” is solved. Win “Miller”, and you won’t even draw a dozen to go after “GCA”; people don’t want to hear about machine guns again. Win “GCA”, and you lose “Miller”; people don’t want to hear about machine guns again.

          Go after “Miller” and “GCA” separately (incrementally), and you fight the battle the opposition wants; government legitimately parsing which weapons “the people” may possess. That is not 2A. The issue is that the government is prohibited from making any rule regarding weapons “the people” may possess.

      • Just because he believes in the Constitution does not mean he knows doggie-doo about guns. Given a full explanation, he might understand the lack of a difference between semi and full in an AR otherwise identical.

    • i thought about this earlier…i could not imagine Hillary getting to pack the court with ‘progressives’….goodbye any restraint on government trampling individual rights

    • +1. If he gets confirmed, Chevron deference is toast, along with a lot more sneaky judicial creations of the past 40 or so years that feed the administrative state. I’d even give a good chance that qualified immunity gets a hard look.

      This is very, very good pick.

  7. like to see another SC pick or two by Republicans
    Ginsburg and Sotomayor are looking pretty frail…

  8. ““In Heller,” Kavanaugh noted, “the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.”

    You completely avoided mentioning the bad part.

    “By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.”

    He believes in restrictions on the second amendment and is not acceptable..

    • “He believes in restrictions on the second amendment and is not acceptable..”

      We’ll take what we can get for the time being.

      I want to see a case filed challenging the constitutionality of the Hughes amendment closing the full-auto registry.

      It was legal for 70 or so years with no problems of “rivers of blood in the streets”. That covers the traditional part of Heller.

      I’d like to see it challenged…

    • That is not what he said, meant, or implied. He merely used the full auto ban as an example of precedent, and how both semi auto rifles and handguns are in common use by the general public. Full auto was not the topic of decision, and attempting to legislate from the bench by dragging it in is not what Article 3 of the Constitution allows.

      The operative word “may” is equivalent to “might” in this context.

      • Comments by judges, after a case has been settled, is common, and it tells alot about how a judge thinks about the law and the constitution. The point is that full auto firearms have never been “traditionally” banned on a federal level. They have needed a tax stamp to own, since the thirties. New production full auto firearns have been banned since the eighties, but those registered before the eighties can still be legally owned by the general public. Kavanaugh should know this since he has already ruled on a second amendment case. Why state something so blantantly incorrect, when he should know it to be untrue, as well as unconstitutional? Because he already has shown he’s willing to overrule the constitution by “precedent”, even when the precedent IS unconstitutional.

        In the end, I would be shocked if he rules for greater recognition of the second amendment by agreeing that various states AWB are in fact, unconstitutional, as an example, if such a case was presented in a USSC he was sitting on..

    • In 1934, full auto weapons had NOT traditionally been banned, you could buy them at the hardware store for $19.95 (buy one, get one free, just pay shipping and handling). Thus, challenge the legitimacy of 1934 law against machine guns, it has never been questioned before SCOTUS!

      • Well concerning that effective light and sub machine guns had be around for less than 20 years, it did not take very long to get them regulated.

  9. Wonder if he has a sister? Sorry, l know that’s OT, but I cannot stop laughing when I think of the great leveling about to come. Begging pardon of the group, Judge K and his sister. I mean no disrespect, I’m just so happy to be here for the turning of the tide. 30

  10. Watching the Left’s reaction to this news is like watching the Wicked Witch get water dumped on her head.

  11. Oh yeah, Francis. “She’s in a bad mood, somebody dropped a house on her sister”, I love living in interesting times, got to go cut wire and sort out some Tangos . Foreign or domestic, I don’t discriminate. Foxtrot, Kilo, Alpha. 30

  12. Obviously, I’m a single issue voter and believe the 2A is the most consequential issue in America today. But…..if there’s ever such a question, I wonder how the court would rule now, or perhaps with a conservative replacement of Ginsberg, on classifying registered democrats as domestic terrorists? Hmmmm. Perhaps it’s time…

  13. Nanashi, must you always be the Negative Nancy in every positive event. Good lord man, chill and see what an important move this is. Please read Ralph’s post and others who see the bigger picture! You can’t expect to make gigantic moves all at once; Hitler tried that in Russia with bad results, remember? Incremental gains win the war. Ruth and Soto can’t last forever and then we go all out 2A.

    • Somebody needs to see the big picture, I’m not going to bag on him for pointing out other facts about Kavanaugh.

      I’m just to remain cautiously optimistic. I’m far more worried about Roberts.

      • “I’m just to remain cautiously optimistic. I’m far more worried about Roberts.”

        We’ll know if a case is declined or granted cert.

        I seriously doubt Thomas will will vote to grant cert. if he isn’t confident we’ll like how it’s decided…

    • He’s holding out for absolute purity while refusing to play the game. Don’t you know the best players in football win the game from the bench because going out on the field and getting dirty is beneath them?

      He would be complaining if the registry were re-opened. He would be complaining if the NFA were repealed. Not even allowing him his own nukes and chemical weapons would be enough. There’s a dark lining in every silver cloud and by golly he’s going to find it and try to get the rest of us to agree with him.

    • Because it’s not a positive event?

      “see what an important move this is.”
      He’s going to legislate from the bench. This is an improvement over Kennedy how?

      ” You can’t expect to make gigantic moves all at once”

      Why not? Gun rights were taken in a handful of big bills.

      • I agree with you on his machine gun statements. I don’t like it either. But the “gun community” is against Bump stocks. So only the rich and civilian police, will have machine guns, or any rapid fire weapon.

  14. Nice pick. Kudos to our president for this one.
    Think it calls for a martini.
    TTAG, thanks for the piece from Reason.

  15. I was really hoping for the woman, forgive me for not remembering her name. Would’ve given him a little stance on the “he hates women!” Groups, (not that he gives a shit, let alone two of them), but I think overall despite her relatively small tenure, she’s a solid constitutionalist.

  16. Fuck the 9 black robed assholes.

    We (all) don’t say it enough, and it’s too much fun for the assholes to sit on the court. We haven’t had one, in our entire history, that hasn’t taken their appointment like crossing the [a] finish line with both middle fingers in the air.

    They have to be given much less respect and more FU.

  17. Past is prologue: Kavanaugh opinion declared NSA massive surveillance of phone data. To wit: “Even if the bulk collection of telephony meta data constitutes a search, the Fourth Amendment…bars only unreasonable searches and seizures. And the Government’s meta data collection readily qualifies under Supreme Courts/s case law….The Fourth Amendment allows governmental searches without individualized suspicion when the Government demonstrates a sufficient “special need” – that is a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.”


    Whenever “the Government” has a “compelling interest” (“special need”), constitutionally protected rights are waived. In the specific case, the ruling dismissed lack of search warrants to conduct “special need” surveillance…for our own good. Are we trading imagined 2A support for real disregard of 4A (and others)? Does it matter what we think?





  18. The swamp prevailed in convincing Trump to appoint a SwampThing to the SC. Kavanaugh supports “common sense gun control”. He does not see an enumerated right (2A) as requiring the most rigorous review (strict scrutiny) before government is permitted to infringe. Indeed, Kavanaugh wrote* that referral to and reference for tradition and history should be the sufficient standard (this is the “compelling government interest” theory).

    * “Heller(2)” Heller v. District of Columbia, regarding semi-auto rifle ban, Kavanaugh wrote that Heller(1) was significant, but not much of a change, and that Heller(1) preserved the status quo of gun regulation in the US. “Heller(1) established that traditional and common gun laws in the United States remain constitutionally permissible….the D.C. handgun ban…went far beyond the traditional line of gun regulation.”….”Gun bans and gun regulations that are longstanding – or, put anotherway, sufficiently rooted in text, history, and tradition – are consistent with the Second amendment individual right.”

    In short, Kavanaugh did not express an interest in reversing the infringements created by gun laws bedded in history, tradition and text (the specific items infringed, and the manner of infringement. This is not a jurist likely to be supportive of any review of NFA and GCA. Kavanaugh is quite comfortable with “common sense gun control”.


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