Justice Kavanaugh… Sure Sounds Good!Steven Lieberman
Finally, after three weeks, I now get to write about Judge Kavanaugh!
President Trump has officially nominated DC Circuit Court Judge Brett Kavanaugh as Justice Kennedy’s replacement on the Supreme Court. Many of us in the Second Amendment Bar have been waiting with baited breath on a replacement for Kennedy, specifically. While putatively a conservative, Justice Kennedy had a far more checkered view on Second Amendment jurisprudence.
The lack of predictability of Justice Kennedy caused many gun cases, cases that could have further clarified the scope and application of the Second Amendment, to not be heard by the Supremes.
In order for a case to be granted certiorari (permissible to be heard by the Supremes), four of the nine justices must agree that the case is worthy of merit. While it only takes four to hear a case, it requires five justices to win a case. Thus, with the bona fides of Justice Kennedy in question, many cases were torpedoed by pro-Second Amendment justices for fear of establishing generations of bad 2A jurisprudence.
Collectivists, who cringe at the possibility of citizens not having a forced reliance on public policy and governmental agents for their safety, rightly have been concerned about a President Trump replacement for Kennedy.
Trump’s pick of brilliant jurist Brett Kavanaugh is unlikely to assuage their concerns.
Judge Kavanaugh has written extensively about many issues, and has proven to be a both a Constitutionalist, as well as a textualist. Essentially, this means that Kavanaugh has little interest in legislating from the judiciary. He is far more concerned with the actual language of the Constitution and the textual history surrounding ratification.
His feelings on the Second Amendment are not vague predictions… his extremely well-reasoned opinions from the DC Circuit give us a glimpse, not just as to his views on the Second Amendment, but how he interprets precedent as well.
One of the most interesting writings was his dissent in Heller II. This case ultimately made its way to the Supremes, where he was essentially vindicated… but the reasoning he made bears a thoughtful analysis… especially because there is a high probability it might make its way into a future decision.
The area I would like to focus on is the concept of “intermediate scrutiny” as a balancing test for whether a challenged law violates the Second Amendment.
In the seminal case of Heller v. DC, Justice Scalia wrote that that “rational basis” was not an appropriate test for balancing the Second Amendment.
Ok… so, what does this mean?
Typically, when we look at First Amendment cases, the court has articulated a balancing test to determine whether the challenged law should be upheld. There are essentially three tests used. Strict scrutiny is one when a core aspect of the First Amendment is at issue. The test for strict scrutiny is, “Is there a compelling state interest, and are there no less restrictive alternatives?” If the answer to this question is yes, then the law will be upheld… even though there is an obvious abridgment of the First Amendment. Assuming that the law does not touch upon a core principle of the First, but the First is implicated, we use an “intermediate test.” Namely, is there “a substantial state interest, and is the challenged legislation reasonably related to achieving that interest?” The least volitive test is the “rational basis test.” When there is a minimal connection to the First Amendment, or the Amendment is not impacted at all, the court will use a “rational basis test.” Here, the court looks to see if there is a “state interest, and the challenged legislation is rationally related to achieving that interest.” Typically, laws tested against strict scrutiny fail… and those tested against rational basis survive.
Justice Scalia never expanded on the proper test since in Heller the core principle of the Second Amendment was completely abrogated by the District of Columbia. He never really got into the balancing test because there was nothing to balance.
Appellate courts have jumped on his specific language, though. Being foreclosed the least restrictive test of rational basis, they have elected to adjudicate statutes that limit the exercise of the Second Amendment to an “intermediate level of scrutiny”… and surprise, surprise… the challenged statutes are upheld.
Justice Kavanaugh disagreed with the entire concept.
Rather than using a First Amendment test, he argued, in his dissent, for a textual approach. The “test” to be used in determining whether the challenged statute violates the core principle of the Second Amendment is to first determine what the Framers were intending the Second Amendment to protect in the first place.
His historical analysis lands squarely on protection of individual liberty, protection against tyranny, and the individual’s inherent right of self-defense.
Balancing tests that were developed for other amendments serve no purpose in determining whether a challenged law violates the Second.
His approach, in my opinion, is spot on.
In identifying the core principles of the Second, Judge Kavanaugh puts his thumb on the scale clearly in favor of individual liberty, exactly as our Founders intended it to be. While his confirmation is by no means a foregone conclusion, there is a high probability he will be confirmed by the Senate. For this we can thank former Majority Leader, Harry Reed, the Democrat who altered the rules of the Senate to allow for a simple majority for confirmation of judges. (Reed was frustrated that President Obama’s picks were being held up by recalcitrant Republican Senators.) Evidently, it never occurred to him that a Republican may one day sit in the White House, charged with nominating a new justice to the Supreme Court.
We welcome the confirmation hearings, and look forward to Justice Kavanaugh fleshing out more of his judicial and political philosophy. One thing is certain… his stance on the Second Amendment makes me very, very happy.