It’s Justice Kavanaugh

BY Herschel Smith
4 years, 8 months ago

So tonight Trump made his selection known.  It’s Judge Brett Kavanaugh.  I’m sure there will be much more to come on this, but here are some initial thoughts.

Jacob Sullum at Reason did a very good expose on him, and finds that he is supportive of second amendment rights, but not so much for the fourth amendment.

Kavanaugh seems to take a narrower view of Fourth Amendment rights. In 2010 he dissented from the D.C. Circuit’s decision not to rehear a case in which a three-judge panel had ruled that police violated a suspected drug dealer’s Fourth Amendment rights when they tracked his movements for a month by attaching a GPS device to his car without a warrant. Kavanaugh rejected the idea that the tracking constituted a search because of the quality and quantity of information it collected, although he anticipated the argument that ultimately persuaded a majority of the Supreme Court: that the physical intrusion required to plant the tracking device amounted to a search.

That rationale would not support invoking the Fourth Amendment in cases where information is collected without trespassing on someone’s physical property, as when police use cellphone location records to figure out where a suspect was at particular times on particular dates. Last month the Supreme Court ruled that looking at such data is a search, meaning it generally requires a warrant.

Kavanaugh also dissented in a 2008 case involving a man named Paul Askew, who was stopped by D.C. police because his clothing was similar to an armed robber’s. The cops patted Askew down for weapons, as permitted under the 1968 Supreme Court ruling in Terry v. Ohio, but found nothing. Later they unzipped his coat, supposedly to facilitate an eyewitness identification, and found a gun.

The D.C. Circuit concluded that police went too far when they unzipped Askew’s coat and that the gun, which became the basis for a weapons charge, should not have been admitted as evidence against him because it was the product of an illegal search. Kavanaugh disagreed, saying unzipping the coat could be justified as “an objectively reasonable protective step to ensure officer safety” after Askew “actively resisted” the pat-down or because “police may reasonably maneuver a suspect’s outer clothing—such as unzipping a suspect’s outer jacket—when, as here, doing so could help facilitate a witness’s identification at a show-up during a Terry stop.”

So we shouldn’t expect him to side against a SWAT team, for instance, and in favor of a victim of home invasion by a SWAT team, as long as a judge signed a warrant and officer safety was paramount.

Frankly, it sounds as if he is in the same mold as Alito, who never saw a police action he didn’t approve.

Also, while this may sound odd, regardless of the second amendment cases currently percolating through the lower courts, I am hopeful that the SCOTUS doesn’t hear one until there is another reliable 2A Justice on the Supreme Court.  Raymond Kethledge is just such a judge (although it could certainly be the case that he never makes it on to the SCOTUS).

A bad decision by the SCOTUS on gun rights is worse than no decision, and I trust neither Roberts nor Alito.  As for the NFA (and class 3 weapons), the GCA and the Hughes Amendment, that will have to be handled legislatively.  Don’t look to the courts to undo that those abominations.

In the mean time, remember that the Supreme Court cannot confer or remove rights.  Only God can remove what God has granted, and in the case of RKBA, it is based on His immutable nature and will, inasmuch as it involves the protection of that which is made in His own image.  It will never change.

Always look to the fountain and spring of your rights, never to the vicissitudes of man’s feelings or the machinations of the state.

UPDATE: Dave Kopel has a very incisive and lengthy article on Kavanaugh up at Reason.  Here is his summary paragraph.

Judge Kavanaugh’s text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right.

I believe that all gun control is constitutionally impermissible.  And this doesn’t make me happy.  On the other hand, he won’t make the gun controllers happy either.  If you ponder for a moment on the kind of judge Trump is likely to nominate, it would be someone just like this.  Trump believes that it is within the purview of the ATF to unilaterally ban bump stocks with no legislative action, as well as sundry other infringements.

Repeal of the NFA, GCA and Hughes Amendment will require legislative remedy.  The judiciary won’t do it.  Yet Kavanaugh won’t be a reliable gun control vote on the Supreme Court, so this is a partial victory in that he won’t be in the camp with Ginsburg and Breyer.

UPDATE #2: The thought occurs to me that if you believe in the so-called “war on drugs,” or a war on anything on American soil, you either [a] have never been to war and know nothing about what it’s like (my son has been to war) and are still willing to weigh in on something completely beyond your comprehension, or [b] you have been to war and are perfectly fine with this sort of thing being perpetrated on the American people.

In the first case, you’re an imbecile whose views are worthless.  In the second case, you are a sociopath.

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  1. On July 10, 2018 at 7:49 am, H said:

    This nomination is unique in that in theory it will result in the first “conservative” Supreme Court since 1937 and the “switch in time that saved nine” from FDR’s court packing proposal (and of course the Left is now proposing to pack the court when they get back in power). So one theory is that Trump is playing it safe with another Catholic who attended Yale (they are all, and have so been such for some time, Catholics or Jews (not good in a majority Protestant nation) who went to either the Harvard or Yale law schools). While I share your concern about other pre-Tump “conservative” judges and the 2nd Amendment, Kavanaugh at least is pro-semi-automatic rifle, which makes him a radical in the Federal judiciary on the 2nd.

  2. On July 10, 2018 at 9:23 am, DAN III said:


    So, Kavanaugh is pro-firearm ? So what.

    The SCOTUS has refused to hear firearm related cases for years. The black-robed scoundrels pick & choose which, of 5,000 cases sent them yearly, to hear. Thus, they play politics with our rights time after time after time. Should a firearm-related case be appealed to them that challenges an anti-2A lower court decision, SCOTUS has reliably allowed the Freedom damaging ruling to stand. All they do is nod their collectivist heads in unison and chant “So sorry, next.”

    Kavanaugh is just another low-life lawyer. Or to put it nicely, just another weasel.

  3. On July 10, 2018 at 10:01 am, Michael said:

    Far as I’m concerned, a “loss” on a fourth-amendment case is a loss for the second amendment as well. This is not who I would have wanted chosen.

    I was rooting to see Amy Coney Barrett nominated.

  4. On July 10, 2018 at 10:20 am, Herschel Smith said:

    @Michael, I don’t disagree. Barrett would have been better (I think), and Kethledge would have been far better.

  5. On July 10, 2018 at 11:09 am, Fred said:

    How exactly is; ‘you can keep your semi auto firearms under some circumstances’ pro 2A?

    He’s a career Statist.

  6. On July 10, 2018 at 11:16 am, H said:

    DAN III: You don’t think the replacement of “in the middle” Kennedy with a “radical 2nd Amendment” supporter (even if he’s not enough for many of us) can’t change the Supremes’ policy of denying cert on all firearms appeals after McDonald? Or if you for example distrust Roberts as much as I do, him + the next Trump Supreme Court justice?

  7. On July 10, 2018 at 11:26 am, BRVTVS said:

    @ Dan III

    I think you’ll see the Supreme Court hear more 2nd amendment cases now that the recognition of our rights won’t be subject to the whims of (in)justice Kennedy.

  8. On July 10, 2018 at 12:44 pm, JoeFour said:

    By my rather quick google search count, seven “conservative” judges were appointed to the Court during the terms of Reagan, G.H. Bush, and G. W. Bush. I wouldn’t expect too much good (if any) to come of Trump’s appointments.

  9. On July 10, 2018 at 2:25 pm, Curtis said:

    Well, at least our constitutional republic, and all those traditional freedoms and liberties of our founding rebels won’t be restored to us.

    So, that’s good news.

    #MAGA-Swoon! Puppy eyes for Trump!

  10. On July 10, 2018 at 2:32 pm, Bram said:

    I believe a couple things will happen.

    1. The Democrats are cracking up and are going to lose big in November. Several Senate seats will flip Republican. When McCain croaks, hopefully the Governor will appoint a conservative and not his widow.

    2. When RGB croaks and somebody actually notices, Trump will nominate a stronger conservative like Coney Barrett or Kethledge when he has a more comfortable majority in the Senate.

  11. On July 10, 2018 at 2:47 pm, H said:

    JoeFour: you can go way back further, Eisenhower realized that appointing Warren was a big mistake, reputedly his biggest, Nixon was bad as well, and Ford’s only appointment was John Paul Stevens. Normal Republican Presidents have perhaps a 50/50 record in Supreme Court appointments … but Trump is anything but a normal Republican President.

  12. On July 10, 2018 at 6:48 pm, BRVTVS said:

    H: I don’t think Warren’s appointment can be considered just an innocent mistake. IKE was not a friend of liberty. See “The Politician” by Robert Welch to fully understand how wicked he was.

  13. On July 10, 2018 at 7:13 pm, H said:

    BRVTVS: Very good point, but I don’t need the full book length treatment, I’ve long ago realized that. Still, Ike didn’t like the blowback he got from that particular appointment.

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This article is filed under the category(s) Second Amendment and was published July 9th, 2018 by Herschel Smith.

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