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We’re fortunate to have a few attorneys as contributors here at TTAG. Given this week’s announcement that Justice Anthony Kennedy will be retiring from the Supreme Court, I asked them to give us their thoughts on Kennedy and the future of Second Amendment jurisprudence.

Johannes Paulsen:

People concerned about the right to keep and bear arms owe Mr. Justice Kennedy a salute and friendly wave as he walks away from the bench. Sure, to borrow from Goldwater, Kennedy never failed to moderate his pursuit of justice, and tended to shrink away from the extreme in his defense of liberty. But hells, put him next to “unlimited Commerce Clause” Breyer, and the guy looks like a Ron Paul-esque paragon of liberty and virtue.

If I’m disappointed that he (allegedly) was playing hide-the-ball with additional Second Amendment jurisprudence after 2011’s McDonald v. City of Chicago, that is a small thing when you look at the grand scope. Before Kennedy, the Second Amendment wasn’t even on the radar. The NRA itself thought it was a losing proposition before the court. No Kennedy? We would still be living in the U.S. v. Miller world of no individual right to keep and bear arms, no incorporation of the Second Amendment to the several states.

Just think: there are no more “no-issue” zones for concealed carry on the map. That is, in the sweep of history, huge. No, he doesn’t get the hugs and warm tears that I’d give Mr. Justice Thomas when he eventually decides to hang it up, but he helped defend liberty. Let’s not forget that.

The timing of his departure should serve to remind everyone concerned about the right to keep and bear arms just how important this, and every election is. This will be the second Supreme Court justice appointed by Donald Trump. Clarence Thomas is 70. Breyer turns 80 in August. Ginsburg is 85. Life expectancy in the USA is 78.8 years. Go out, support Senate candidates friendly to the Second Amendment. Get them elected. It’s important.

Louis K. Bonham:

The frustration for 2A supporters of late has been “why won’t the Court take any 2A cases to enforce Heller?” The short answer has been that the Court was in a classic Mexican standoff, with four justices (Roberts, Thomas, Alito, Gorsuch) being strongly pro-2A and four (Ginsburg, Breyer, Karen, and Sotomayor) prepared to gut Heller . . . and a notoriously unpredictable Anthony Kennedy with the swing vote. Neither side could be sure which way he’d go, and thus neither side wanted to risk losing. And so lower courts learned that they could defy Heller with impunity.

Assuming that President Trump nominates someone from the existent list of 25, and that the Senate GOP hangs tough (and/or a couple of Dems facing tough reelection fights go wobbly), those days are over. The GOP has been promising a return to a conservative Supreme Court since 1968, but thanks to Blackmun, Powell, Stevens, O’Connor, Kennedy, and especially Souter, our own nominees have prevented that from happening. After almost 50 years of liberal Supreme Court activism, there finally is a likelihood of a solid originalist majority. This is truly a generational event.

On gun rights, I think the first step we’ll see will be to slap down a “may issue” carry license system from a place like Hawaii, NJ, NYC, etc., where “may issue” is in reality “no issue” (except for the politically connected). In so doing, I suspect the Court will explicitly require “strict scrutiny” of laws that affect the RKBA (which means that very, very few laws will survive the challenge). Requiring “strict scrutiny” will then require lower courts to revisit many of their prior decisions (like the 4th Circuit’s approval of the MD “assault weapons” ban).

Another important trend this appointment will cement is the continued gutting of the administrative state.  The Court is already signaling that the days of judicial deference to bureaucratic actions and interpretation are coming to an end. This will radically impact the way government business is done across the board, including how the BATFE operates. For instance, I don’t think a BATFE “reinterpretation” of the 1934 Act to ban bump stocks is going to fly with the new Court (although a law passed by Congress doing so might well).

The biggest thing will be that lower courts will know that the Court stalemate on 2A cases is over, and thus they will no longer be able to thumb their nose at Heller. Sure, there will be some judges barking at the moon (there always are), but once the new Court makes it clear that 2A rights are no longer “second class,” I think the pieces start falling into place.

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    • Didn’t bother to read the article here, eh? Louis addresses your comment starting with his first sentence.

      • As I recall, Roberts is Chief Justice, not Neil Gorsuch. Roberts can run the Court any which way he likes. Roberts, isn’t answerable to Neal Gorsuch, the President or the NRA…

        • ” Roberts can run the Court any which way he likes.”

          That may be, but if it’s Roberts who is doing the refusing of 2A case certs, Thomas would be loudly calling that bullshit out by name, instead of referring to the court in general terms…

        • Chief Justice means that he is the administrator of the court. All justices get to vote on cert petitions, and their votes are all equal. It takes four to grant cert. So the power to accept cert on gun cses has always been there, irrespective of Kennedy’s status.

          Part of the reason that no cases have been accepted is that Kennedy was a swing vote–meaning the pro-gun justices could not reliably determine whether he would join their side, as he did in Heller, or the other side. The anti-gun justices always vote to deny cert in these cases, since they do not want to risk opening the flood gates to further “eroding” of gun control laws after Heller.

          An example of how this all works is the D. C. decision in Palmer v. D. C., which imposed “shall issue” CCW on the District as a Constitutionally guaranteed right. The City was leaned on heavily by New York and California to NOT seek cert. because they were afraid that if the case were accepted and affirmed, it would have meant nationwide “shall issue” CCW. They could not reliably predict that Roberts would join the left wing of the court and reverse the appeals court decision.

          So what we see now are two vocal gun rights proponents, Thomas and Gorsuch, plus two silent but conservative justices who are reliably pro-gun, but those four could never be certain that they would get the needed fifth vote from Kennedy, so voted to refuse cert, either waiting for him to retire or for a case where the outcome was nearly certain (such as the Massachusetts ban on stun guns that was reversed “per curiam.”

          • I never said that the Chief Justice had a Super Vote! Only that’s it’s His Court, because of Him being the “CHIEF” Justice. Also consider that Neil Gorsuch has the Most Junior Member within the US Supreme Court…

        • @slow poke: You’ve changed your tune. First you implied “Chief” gave him veto power over case selection. Now you imply it’s seniority. You are wrong both times.

          What does seniority have to do with anything other than who gets coffee first? Voting for against accepting cases does not depend on seniority, title, or anything else.

    • “Always assuming that the U.S. Supreme Court hears anything at all on Gun Related Issues!/? ( )

      So pretty much everything in that article is now irrelevant and you are citing it.

      We KNOW from clerks who leaked what happened it was Kennedy — not Roberts — that forced the narrow aspects of Heller

      The fact is a few votes in Florida made mincemeat of the gun control/ban lobby which would now have enough votes to overturn Heller totally. Any other GOP candidate would have lost to Hillary and it would be done.

      so sure we may just get shall issue and an overturning of AR-15 ban in terms of current problems, but we will also stop a fkload of future limits the gun ban lobby has been promoting.

      We will also see some serious loss of funding for the gun control lobby as it tires and fails on more legislation.

  1. One can hope the attorneys are correct. N.Y really blows , wind that is. Support , no enforce our 2nd amendment rights. Pick a winner Potus !!

  2. We should see the end of assault weapon bans. The end to “high” cap mag bans. The end of shall issue.

    Hopefully we might see the end of the NFA and the Hughes amendment

    And Chevron deference is finished.

  3. What no Ralph?!? Sorry but good riddence Kennedy. Pushed homosexual “marriage” and baby murder…one down and 3,4 or 5 to go!

  4. At least as pernicious as liberal judges rewriting the Constitution, which they justify with myriad excuses like it allegedly being outdated, it having been written by slave owners, etc., is liberal judges’ eagerness to discredit the Supreme Court. That judges around the country and even on the Court itself would exploit the tenuous 4-4-1 split to ignore Heller is flat out unconscionable. They can get away with breaking the law, so they do it. The Court refuses to reinforce its own recent rulings, which aren’t dressed in 18th century drowning chains.

    You don’t see that happening with 5-4 liberal rulings, with conservatives running around ignoring the high court because they momentarily can. Really, as it takes years for cases the SC eventually does rule on to get to that point, the government could exploit the system for years knowing they can get away with whatever they want before eventually being slapped down. Indeed, civil court judicial persecution is a favorite silencing technique of semi-democracies around the world. Malaysia is notorious for this.

    All of this nonsense and abuse of process persists because liberal judges cannot separate their politics from their jobs.

  5. Assuming the President can get a Pro-gun Justice appointment, it will still take years to get pro-gun cases before the court, but at least there might be a chance of a ruling to strengthen individual rights over regulators’ wishes.
    The focus must be on the quality of the appointment.

  6. Speculation has it that one of the reasons Kennedy decided to go is that he had Roberts’ promise that he’d be the new swing vote on the court.
    Given Roberts’ track record at the Supreme Court, I would anticipate that even if no promise was made.
    Get out the popcorn.

    • “Speculation has it that one of the reasons Kennedy decided to go is that he had Roberts’ promise that he’d be the new swing vote on the court.”

      That has the stink of truth about it.

      Ever since his gymnastics on the ‘Affordable Care Act’ decision, I’ll never trust him.

      I also fully expect the Leftists to apply pressure on the other associate justices to get the vote the want from SCOTUS. And I wouldn’t put anything past them as to what kind of pressure they would use. They are that scared that their ‘Progressive Dream’ is going up in smoke on them. Violence wouldn’t surprise me one bit from them. (You’re granddaughter is pretty little girl. Be a real shame if anything…)

        • As i recall, the US Supreme Court made the “ACA”, a Constitutionally Protected Act in 2012. Which is virtually impossible to Nullify, other than passing a Super Majority Vote by both the US House of Representatives and the US Senate. That’s why the US Congress and the US Justice Department (Jeff Sessions) stopped trying.

        • Did you folks not read Roberts majority opinion on the Muslim immigration case. He, in no uncertain terms, tore the liberals a new ass. Yea, I was as disappointed in the two votes in the cases mentioned. From what I’ve read, he was being blackmailed by obummers intelligence people. He apparently adopted his children ‘under the table’ and didn’t want to take the chance of haven them taken away. He was told if he didn’t vote as directed, that’s what would happen. My guess is those corrupt intelligence folks have been deswamped and Roberts came out swinging against the libs. Read his opinion and comments, I was thrilled. Now, don’t any of you try and tell me you have never done anything in your life that you would want to become public. I know I have let a pretty exemplary life, but I have done a couple of things I was not proud of. Just wait for his future opinions, I think we will be proud. If not, I’ll cop out I was wrong, but give him a chance.

  7. “The GOP has been promising a return to a conservative Supreme Court since 1968, but thanks to Blackmun, Powell, Stevens, O’Connor, Kennedy, and especially Souter, our own nominees have prevented that from happening. ”

    Past is prologue; watch Gorsuch closely. “Conservative” justices have a nasty habit of proving they are not really conservative so as to be acceptable to the lawyer mafia. Something about being on the SC seems to make “conservative” judges believe they must be hyper prudent so as to remove any specter of ideology. Thomas has been stalwart, but “one” is not a majority.

    • sure being a swing vote is seductive, but we ought to take amount to reflect where we could be if a few less Florida Republicans turned out to vote. We would have Grosuch and already losing cases, and with a full on liberal replacing Kennedy, ensuring overturning of Heller and quote possibly all semi auto including handgun bans to look forward to within a few years,. The gun control lobby would have twice the funding since they would be huge winners.

      I also don’t give a flying fk about gay marriage either way or about Roe, al we will see on abortion either way is a few weeks later or a few weeks earlier for non medical necessity abortion no conservative judge will go further than that.

      • Let’s not count our eggs before they are hatched. Just read an article about 5 RINO’s who could stop Trumps picks. Two are big time pro abortion bitches, Merkoski from AK and what’s her name from Maine. Both have said if the nominee is pro life, they’ll vote against. Then you have anti Trump Corker and Flake. The 5th I’m guessing is McLame, but my computer crapped out prior to the 5th. Point is, it ain’t gonna be a done deal.

  8. You can probably count on your two hands or more likely one hand how many 2A cases the U.S. Supreme Court has heard in the last 50 yrs. It takes 4 justices to accept a case to be heard in the Supreme Court. We are just wishing for more 2A cases to be heard before the U.S. Supreme Court and that is all it is right now. We are just wishing and hoping for the many anti-2A laws in California, Illinois, and most of the Northeastern states to be struck down and that is all it is right now. We can not be sure anything will actually happen to move 2A in a positive direction for most of the country. I guess it is hope that will keep us going for now, but we will probably not see a 2A case before the U.S. Supreme Court after we have a new justice on the bench within the next few years. If, we see any 2A case in five years we will be lucky.

    • …depends on how egregious they are with their restrictions…would like to see the court address what defines infringement….

  9. Johannes: Wouldn’t a US v Miller world be a world in which you only have a right to own a gun if you can show with a preponderance of the evidence that your particular gun is useful in military combat?

    In all seriousness, Miller should have been followed by a suit from somebody who didn’t want to pay a $200 tax on his BAR. The only reason it didn’t happen is nobody wanted to risk the prison sentence for standing on his rights and losing.

    • Nobody even stood up in Miller, who was a dead scumbag by the time the case was heard. Nobody gave testimony on the military usefulness of a SBS, so the justices declared it outside their judicial notice. The summary also doesn’t reflect the true ruling.

  10. Wouldn’t it be something if another justice leaves under Trumps watch? I mean how old is Ginsburg? She can’t hang on forever I mean she was 4 years older than Kennedy. Assuming Trumps next pick is confirmed and he then got another one the average leftists’s head might explode. I would definitely be stocking up on the popcorn.

      • I can’t blame her for that last part. I’m 41 years younger and they bore me to sleep too.

    • If Trump wins in 2020 and the Republicans hold the Senate, it’s likely that he’ll make at least one, if not two, more Supreme Court appointments. That means a 6-3 or 7-2 conservative split, with a truly solid majority.

      • The entire country with the exception of Ann Coulter got it wrong so I wont say it is impossible. It usually depends on the economy mainly, but there are a lot of wildcards wit a non professional politican.

        But unlike Hillary, the DNC, and the 95% of the US media that is just an arm of the DNC, the left will NOT underestimate Trump again. The absurd level of daily media attacks on Trump pretty much at this point, “Trump woke up, so he is a racist fascist” and” the economy improved — proving Trump is Satan” will rise to the level of insane volume.

        Seriously expect to see front page stories in the NYT saying Trump is murdering immigrant kids and their kittens in the basement of the white house, is secretly married Kim Jong- Un, or worse yet hurt Justin Trudeaus feelings, again.

  11. ” In so doing, I suspect the Court will explicitly require “strict scrutiny” of laws that affect the RKBA (which means that very, very few laws will survive the challenge).”

    …And here is how the Leftists will respond :

    Vastly increase the number of things that makes a person deemed a ‘prohibited person’.

    Get into a screaming match at work in front of witnesses? You can’t control your temper. No guns for you.

    Threaten to ‘shoot a place up’ online or in front of witnesses? No guns for you.

    Think along those lines as to the kinds of ‘crimes’ they will create out of thin air to make the most possible amount of people a ‘prohibited person’ who can never own a gun…

    • Until the entire “prohibited person” BS is ruled unconstitutional as well. There is no “felon” exception to the 2nd amendment

      • The only thing that worries me is that Dems may use that as an excuse to give felons their voting rights back, and get another huge voting bloc secured.

      • Well, if Kavanaugh’s read of Heller and McDonald (in Heller II) is accurate, what will matter about felon restrictions or any others is whether they’ve been customary in this country’s history and traditions.

        For those who think the Court will apply any balancing tests like heightened scrutiny you should read that dissenting opinion of his in Heller II.

  12. Breyer and Ginsburg are likely to see the writing on the wall. One or the other is likely to retire by next July simply because after the replacement of Kennedy they will just be marking time and writing protest opinions. I suspect it will be Ginsburg since she is somewhat older and in questionable health. She will try to get Breyer to try to outlast Trump and maybe Pence after him.

    • Ginsburg is a widow. She has no one to go home to, noting to do after this. Retirement will kill her; going to work is the one thing keeping her alive. Which means she would rather die first than retire.

      • The Obama administration tried to convince here to retire so Barry could put another liberal judge on the court. She refused because the republicans held a majority in the Senate and she felt the the replacement judge would not be as liberal as her. Ginsberg was betting that Hillary would win the presidency and the Demorats would retake the Senate, then should could retire with a new far left judge on the bench. The opposite happened and now she is stuck in a squeeze play. My bet is she will die on the bench.

        • And if she does, her clerks probably have orders to prop her up like El Cid for as long as possible . . . .

        • “…her clerks probably have orders to prop her up like El Cid for as long as possible . . . .”

          ‘Weekend at Bernie’s : SCOTUS Revenge’…

        • She’s like a sith lord at this point. Wizened and kept alive by nothing except determination and hatred for unenslaved goyim.

  13. you all know Roberts will waffle on “assault weapon” bans and may-issue/no open carry, right? okay, just prepping everyone for the big 5-4 let downs next year.

  14. Kennedy wasn’t bad, just soft. We have no idea who will replace him, but it will be hard to find a more pro-2A justice than Thomas, although Alito is great, too. So Thomas is the model, the standard, by which all others should be judged.

    We need a Thomas II. We won’t get one — ‘memba how hard it was to get Thomas confirmed? — but that’s who we need.

  15. The biggest problem I see for the upcoming mid terms is voter fraud and criminal vote counting. Let’s face it, the demonrats have proved over and over they have no problem violating the law. And, in this case, due to the probable Supreme Court vacancies, they will go all out. Soros and his voting machines, dead people voting, illegals voting can make all the difference. It will only take the loss of 2 senate seats, assuming the RINO’s don’t vote with the demonrats, and we lose the chance to get conservatives on the bench. It has never been so important we get EVERY single Republican voter to the polls this coming November.

    • “The biggest problem I see for the upcoming mid terms is voter fraud and criminal vote counting.”

      Think of the possibilities with a solid Court declaring voter ID laws expressly constitutional…

    • The biggest problem I see for the upcoming mid terms is voter fraud and criminal vote counting

      Respectfully while that will happen to some degree the biggest problem is if we are complacent and every single Republican does not vote and trump does not also take the independent moderates like he did.
      The Dems will NOT make the same mistake of underestimating him again

      • Voter fraud is not as small of a problem as most folks think. Several elections in 2016 were decided by from as few a hundreds to a few thousand. It’s been proved that voter fraud was counted in the millions. That includes all previously mentioned, illegals, voting dead, multiple votes from same person, voting machine fraud etc. But, you are correct, all will depend on Republican turn out.

  16. “Another important trend this appointment will cement is the continued gutting of the administrative state. The Court is already signaling that the days of judicial deference to bureaucratic actions and interpretation are coming to an end.”

    To this I’ll add an intentionally small-care “yeaa . . .”. I do this because of Trump’s realpolitik. His election exposed to the American body politic just how duplicitous our government has becomed—at all levels. In particular, however, my disgust is directed at elected Republicans who pretend to be conservatives at election time but who’s actual loyalties are with the progressive UniPary. Trump has forced those scumbags to reveal their true loyalties. As long as those people are in office, freedom—including 2nd Amendment freedoms—remains in peril. Those guys have been selling us out for decades so a change in the structure of the court, while helpful, won’t mean much until they’re all out of office.

  17. I don’t, and you shouldn’t, trust Roberts one bit. Especially after his diseased-rabbit out of a hat trick with the ACA.

    Roberts is NOT a constitutionalist. He is far more concerned with the reputation of the court than the actual constitution.

    Before we get another firearms rights case before the court, we need Ginsburg to shuffle off this mortal coil.

    • The U.S. isn’t like Braveheart where all the people understand freedom and the government is just in the way. A lot of people here just don’t understand or value freedom and the politicians just reflect that.

      The SC helps protect freedom from meddling politicians. But if the SC strays too far from the people there will be serious problems in this country. Thomas is my favorite justice but we actually may need Roberts more right now. Roberts will maintain the reputation of the court, giving us small wins and precious time to educate more people about freedom.

      We must use this time to encourage more blacks, hispanics, gays, low-income people, women, and urban dwellers to learn about shooting. We must educate people — listen and talk — about the benefits of gun rights even for those who don’t own guns. The image of the 2A must not just be a bunch of white male gun owners.

      We should make “gun inequality” a major political issue. Why do poor inner city people not have good access to guns and CCW permits? Why is the number of gun owners not increasing as fast as the number of guns?

      Then, the people will be ready for freedom (again) and we can let Justice Thomas do what he does best.

  18. @ Felix

    If Justice Thomas is so upset in the way that Chief Justice Roberts is running the Supreme Court. How come he “Hasn’t” complained about it before!/? “Roberts” has been Chief Justice since 2005, and “Thomas” is only complaining about it NOW! Thirteen Years Later…

  19. Paulsen is using the wrong chart from the CDC. For a person who is now turning 75 in the U.S., the average life expectancy is 11 years, so only Ginsburg could be expected to die in office during Trump’s presidency, with the outside possibility of Breyer also failing if Trump wins a second term.

    Actually, a lot of people might fail if Trump wins a second term.

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