SCOTUS Punts Most 2A Cases Again (Updated)

The Supreme Court has their conference on Fridays to examine which cases they wish to take and the ones they don’t. They announce the results on Monday in the Orders of the Court. Not all pending cases are sent to conference but those that are can be denied certiorari (or mandamus), accepted, or passed on to another week’s conference.

The Orders of the Court released this morning indicate that they punted all the major Second Amendment cases to the next week. The exception was Bradley Beers v. Barr which dealt with the denial of Second Amendment rights to those who had been involuntarily committed no matter how long ago.

In that case, the Supreme Court granted certiorari, vacated the judgment, and sent it back to the 3rd Circuit to dismiss as moot.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

Unfortunately, I don’t know enough about the Beers case to say why the Supreme Court said it was moot.

The Polite Society Podcast will have attorney Cody Wisniewski of the Mountain States Legal Foundation as our guest tonight. He will be discussing these potential cases and why he considered the finding of moot in NYSRPA v City of New York was not the end of the world for 2A cases. I will have a link up later where you can watch this on Facebook Live.

Cody was one of the attorneys who brought the case that forced New Mexico Gov. Michelle Lujan Grisham (D-NM) to reopen some gun stores in that state.

UPDATE: Thanks to Rob at 2A Updates I have an answer as to why the Beers case was considered moot. Mr. Beers has been cleared by the State of Pennsylvania, was granted a firearms license, and now has a legally owned firearm.

UPDATE II: The link to the Facebook Live broadcast of the Polite Society Podcast can be found here. It starts at approximately 7:05pm EDT tonight.

2A Cases Still Alive

All 11 Second Amendment cases that are still pending before the Supreme Court have been redistributed for conference on Friday, May 15th.

Scroll through the embedded tweet to see all the cases.

Figuring out what the Supreme Court will do is like reading tea leaves. That said, I still think the SCOTUS will take one or more of these cases and hold the rest for remand based upon their final opinion.

All Existing 2A Cases Before SCOTUS Still Alive

The Supreme Court Order List released this morning denied certiorari to a number of cases. However, they did not deny nor grant certiorari to any of the 11 existing Second Amendment related cases that were sent for consideration at Friday’s conference.

This means that cases dealing with everything from interstate sales to carry to microstamping are still alive. I am keeping my fingers crossed that one or more of them will be granted certiorari. The dissents plus Kavanaugh’s concurrence in NYSRPA v. City of New York indicate at least four votes to hear Second Amendment cases. It only takes four votes but realistically you would need five or more to be assured of a pro-2A ruling.

Technology, The Second Amendment, And Hong Kong

The pro-democracy protests in Hong Kong should be instructive for everyone in this country. You have a territory that was once a colony of Britain and is now essentially a vassal state of Red China. The people there have never been entirely free. While freer as a British colony, they were still ruled by edicts from London. Now as part of China with the “one country, two systems” policy, they are still ruled from afar. What they want is what we take for granted in the US – human rights, freedom, and democracy.

These protesters understand something that all the Democrats running for president, much of the media, and even too many Republicans don’t. That is the real purpose of the Second Amendment.

Anthony Wallace/AFP/Getty Images

They don’t plan to go duck hunting or deer hunting in Hong Kong. They fully understand the Second Amendment is what gives the people the power to change or overthrow a tyrannical government. While former presidential candidate Rep. Eric “Nuke’em” Swalwell is incredulous that people armed with mere small arms could take on a world power, one need only look to Afghanistan or to our former adversaries in Vietnam.

Modern technology gives the pro-democracy protesters a communication advantage that is hard to stop. They have found that Tinder can be used for more than hookups and that Poke’man Go isn’t just for my son-in-law to drive my daughter crazy.

Posting information about protests on Tinder is just one of several creative ways Hongkongers are using technology to mobilize people. For more than eight weeks now, technology has been at the center of organizing demonstrations against a controversial extradition bill.

People primarily communicated through Telegram groups and streamed their actions on gaming platform Twitch. As violence has escalated in recent weeks, though, police have been cracking down harder. So now protesters are resorting to more unorthodox methods of organizing and communicating online.

One of those methods, besides Tinder, is Pokémon Go.

When the Hong Kong police denied protesters permission to march in one of the city’s suburban neighborhoods on safety grounds, the protesters decided to say that they weren’t going for a march — they were just showing up for a game of Pokémon Go.

Rather than sneaking out messages like dissidents did using samizdat in the old Soviet Union, protesters are using Apple’s peer-to-peer AirDrop to pass on information to visitors from the rest of China. These visitors normally would only hear what the government allowed them to hear in China.

What makes AirDrop the ideal communication tool in this case is that it bypasses Chinese censors; news of protests in Hong Kong against the extradition bill have been blocked on popular social media platforms in China such as Weibo, WeChat and Baidu

I don’t know what will eventually happen in Hong Kong. Nonetheless, we in the United States should be paying attention. This is true especially now that you have media and technology giants controlling some much of what we see and hear. When you combine that with the statist nature of most politicians, right or left, it becomes an imperative that alternate voices are heard. You know like ones that ask the hard questions about the efficacy of background checks or red flag laws.

Dave Hardy’s Presentation At Second Amendment Symposium

Lincoln Memorial University’s Duncan School of Law held a Second Amendment Symposium on January 18th in Knoxville, Tennessee. I would have loved to attend this but I was leaving the next day for the SHOT Show. The symposium featured scholars who represented both the standard model and the collective rights model of the Second Amendment. Representing the standard  model were Clayton Cramer, Stephen Halbrook, David Kopel, and Dave Hardy. The representatives of the collective rights model were Carl Bogus and Robert Spitzer.

Dave Hardy’s presentation has been published to YouTube. While the audio isn’t the best, it is still worth listening to if you are interested in the history of the Second Amendment and what the Founding Fathers intended when they added it to the Bill of Rights.

Dave writes of his presentation:

The theme is that Second Amendment had two independent purposes; one does not control the other. The militia phrase is indeed militia-centric, and the right to arms clause is focused on an individual right. James Madison and the First Congress were trying to satisfy two different constituencies, one of which wanted to protect the militia, the other of which wanted to guarantee an individual right to arms. They chose to appeal to both. This means that the individual right guaranteed is not one only for militia use; they were two separate ideas, and one is not a restriction on the other, anymore than the First Amendment’s guarantee of a right to religious exercise means that its freedom of the press only protects books on theology.

 It will be interesting to read the papers that will come out of this symposium. I have an email in to the LMU Law Review asking when they will be published. I’ll update this when I get a response.

US V. Torres – Do “Unlawful Aliens” Have The Right To Possess Firearms?

Does an illegal alien, unlawful alien, undocumented immigrant, or whatever your favorite term for those in this immigration class have the right to possess a firearm under the Second Amendment? Five circuit courts have said no and now the 9th Circuit Court of Appeals in an unanimous decision agrees in a decision released yesterday. They have all found that 18 U.S.C. § 922(g)(5)(A) is constitutional.

Some quick background on Victor Manuel Torres. He was born in Mexico and was brought to the San Jose, California area when he was four years old in 1989. Neither of his parents had legal immigration status. Notwithstanding that, he was enrolled in the San Jose school system until he was expelled in 2000 for gang membership in the Sur Santos Pride gang. A couple of years later he was sent to live with relatives in Mexico to get his act together. In 2005, he made three attempts to illegally enter the United States. The first two times he was caught and allowed to voluntarily return to Mexico. His third attempt was successful and he returned to live in the San Jose area. He married a US citizen in 2012 but made no attempt to apply for legal status. So you have a person who is in the United States unlawfully, did not have a right to legal status due to his parents, and who made no effort to change his status after his marriage to a US citizen.

In 2014, Torres was arrested when attempting to sell a stolen bicycle by the Los Gatos Police Department. When he consented to allow officers to look in his backpack for identification, they found a loaded .22 revolver, bolt cutters, and two homemade suppressors. In addition to state criminal charges, Torres was indicted and convicted on one count of being an unlawful alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). He moved to dismiss this charge on the basis that the Second Amendment protections applied to him and that § 922(g)(5)(A) violated the Second Amendment. The District Court disagreed and after trial sentenced him to 27 months in prison with three years probation. He then appealed to the 9th Circuit.

The 9th Circuit used a two-step inquiry to see if § 922(g)(5)(A) was unconstitutional both facially and as applied to Torres. The inquiry sought to determine whether the law burdened the Second Amendment and then. if so, the proper level of scrutiny. Noting that the 4th, 5th, 7th, 8th, and 10th Circuits had dealt with this question they proceeded to examine those cases. The key issue was whether “the people” in the Second Amendment was meant to apply to those illegally in the United States.

The two cases that all six of the circuits used to determine “the people” were US v Verdugo-Urquidez (1990) and DC v Heller (2008). The first case said “the people” in the Bill of Rights were those in a class of persons who are a) part of a national community and b) who have developed a sufficient connection with this country to be considered part of it. Likewise, the Heller case emphasized the Second Amendment as “protecting the rights of citizens” and “belonging to all Americans”. It went on to use the terms “law-abiding” and “responsible” in reference a citizen’s right to use arms in defense of their home. The five other circuits had all agreed that § 922(g)(5)(A) was constitutional but disagreed on the reasoning.

The 4th, 5th, and 8th Circuits found that unlawful aliens (the preferred term of the 9th Circuit) were not members of the law-abiding community per Heller and thus not entitled to be “the people” under the Second Amendment. Conversely, the 7th and 10th agreed that Heller was not conclusive on who should be considered “the people” as that was only secondary to whether it was an individual or collective right. They thus relied upon Verdugo-Urquidez to determine that those in question were “the people” or assumed to be. However, under intermediate scrutiny their exclusion from Second Amendment rights was allowed because it did not severely burden that right.

The 9th Circuit decided that:

However, we agree with the Tenth Circuit’s approach,
because we believe the state of the law precludes us from
reaching a definite answer on whether unlawful aliens are
included in the scope of the Second Amendment right. The
Tenth Circuit correctly held that this question is “large and
complicated.” Id. at 1169. Therefore, on this record, we find
it imprudent to examine whether Torres (as an unlawful alien)
falls within the scope of the Second Amendment right. As
such, we assume (without deciding) that unlawful aliens, such
as Torres, fall within the scope of the Second Amendment
right
as articulated under
Heller and Vergudo-Urquidez and
proceed to the appropriate scrutiny we should give to
§ 922(g)(5).

The court then had to decide whether § 922(g)(5)(A) imposed a permissible restriction on Torres’ Second Amendment right and what was proper level of scrutiny. Torres argued for strict scrutiny but the court disagreed.

However, intermediate scrutiny is
appropriate “if a challenged law does not implicate a core
Second Amendment right, or does not place a substantial
burden on the Second Amendment right.”
Jackson, 746 F.3d
at 961. Although not dispositive of the question, we note that
there has been “near unanimity in the post-Heller case law
that, when considering regulations that fall within the scope
of the Second Amendment, intermediate scrutiny
is
appropriate.”
Silvester, 843 F.3d at 823.

Here I might say that the “near unanimity” is due more to resistance by the lower courts to Heller and McDonald than to true constitutional jurisprudence.  The court goes on to decide that the severity of the law’s burden on Torres’ right is tempered. That is due to the fact that the prohibition on an unlawful alien’s possession of a firearm does not continue once he or she has left the United States. Moreover, if an unlawful alien was to acquire lawful immigration status the prohibition in § 922(g)(5)(A) would be removed.

The court agreed with the government’s contention that § 922(g)(5)(A) had an important governmental objective and that it was a reasonable fit between the objective and the conduct regulated. The primary objective is crime control and public safety. Armed unlawful aliens are a threat to immigration officers, they purposefully seek to avoid detection by often adopting false identities or staying outside the formal system of identification, and have already shown a willingness to disobey the United States’ law on immigration.

They conclude:

The present state of the law leaves us unable to conclude
with certainty whether aliens unlawfully present in the United
States are part of “the people” to whom Second Amendment
protections extend. Nonetheless, assuming that unlawful
aliens do hold some degree of Second Amendment rights, those rights are not unlimited, and the restriction in
§ 922(g)(5) is a valid exercise of Congress’s authority.

They thus affirm the lower court’s ruling that § 922(g)(5)(A) is constitutional.

The opinion was written by Circuit Judge N. Randy Smith. He was joined in the opinion by Chief Judge Sidney Thomas and US District Judge Sharon Gleason who was sitting by designation.

The full text of the opinion is here.

What Wonderful Dissents In Mance V. Holder (now Sessions)

Mance et al v. Holder et al was a case brought in Texas that sought to overturn the Gun Control Act of 1968’s ban on the sale and immediate transfer by FFLs of handguns to out of state purchasers. It was a win at the District Court level when Judge Reed O’Connor of the Northern District of Texas ruled that part of the Gun Control Act unconstitutional.

Unfortunately, the government appealed their loss to the 5th Circuit Court of Appeals and won in January. The plaintiffs including the Citizens Committee for the Right to Keep and Bear Arms appealed and sought an en banc review.  This was turned down in an 8-7 vote that was released on Friday.

What is most notable about this loss are the dissents from this decision. They make it abundantly clear that there are still some appellate level judges who value the Second Amendment.

Judge Jennifer Walker Elrod, a George W. Bush appointee, had this to say in part:

Simply put, unless the Supreme Court
instructs us otherwise, we should apply a test rooted in the Second
Amendment’s text and history—as required under Heller and McDonald—
rather than a balancing test like strict or intermediate scrutiny.

Judge Elrod then ends her dissent with a quote from Judge Brett Kavanaugh’s dissent in the Heller II case.

Following Judge Elrod’s dissent is one from Judge Don Willett that is, in my opinion, absolutely wonderful. I won’t quote the whole thing but I feel like it.

Constitutional scholars have dubbed the Second Amendment “the
Rodney Dangerfield of the Bill of Rights.” As Judge Ho relates, it is spurned
as peripheral, despite being just as fundamental as the First Amendment. It is
snubbed as anachronistic, despite being just as enduring as the Fourth
Amendment. It is scorned as fringe, despite being just as enumerated as the
other Bill of Rights guarantees.


The Second Amendment is neither second class, nor second rate, nor
second tier. The “right of the people to keep and bear Arms” has no need of
penumbras or emanations. It’s right there, 27 words enshrined for 227 years.

The core issue in this case is undeniably weighty: Does the federal
criminalization of interstate handgun sales offend We the People’s “inherent
right of self-defense?” This merits question turns upon a method question:
What level of judicial scrutiny applies to laws burdening the Second
Amendment? In other words, when the government abridges your individual
gun-ownership rights, how generous is the constitutional strike zone?

Judge Willett goes on to note that this case deals with a matter of exceptional importance and that it adds a significant methodological component in how Second Amendment cases should be decided – tiers of scrutiny vs. “text, history, and tradition”.

Finally, Judge James Ho takes issue with what he calls a prophylactic ban saying it is not narrowly tailored to a compelling government interest. He also states that he would have voted to affirm the District Court’s judgement. His dissent may also be one of the first times the word “hoplophobia” was used in a decision.

No one disputes that the Government has a compelling interest in
preventing dangerous individuals from purchasing handguns. But as the
district court held, and the panel properly assumed, handgun restrictions must
be narrowly tailored to serve that interest. Law-abiding Americans should not
be conflated with dangerous criminals. Constitutional rights must not give
way to hoplophobia.

The ban on interstate handgun sales fails strict scrutiny. After all, a
categorical ban is precisely the opposite of a narrowly tailored regulation. It
applies to all citizens, not just dangerous persons. Instead of requiring citizens
to comply with state law, it forbids them from even trying. Nor has the
Government demonstrated why it needs a categorical ban to ensure compliance
with state handgun laws. Put simply, the way to require compliance with state
handgun laws is to require compliance with state handgun laws.

The Government’s defense of the federal ban—that state handgun laws
are too complex to obey—is not just wrong under established precedent, it is
troubling for a more fundamental reason. If handgun laws are too complex for
law-abiding citizens to follow, the answer is not to impose even more restrictive
rules on the American people. The answer is to make the laws easier for all to
understand and follow.
The Government’s proposed prophylaxis—to protect
against the violations of the few, we must burden the constitutional rights of
the many—turns the Second Amendment on its head. Our Founders crafted a
Constitution to promote the liberty of the individual, not the convenience of
the Government.

I would love to see this case come before the Supreme Court with a Justice Kavanaugh on it. I doubt he would need to recuse himself just because his own words were quoted in the dissents.

President Trump’s SCOTUS List, Part 2

This continues the thumbnails on the potential nominee to succeed Justice Anthony Kennedy on the Supreme Court of the United States. Part 1 had Judge Amy Coney Barrett, GA Justice Keith Blackwell, FL Chief Justice Charles Canady, Judge Steven Colloton, and Judge Allison Eid. As with Part 1, I’m particularly interested in how these potential nominees will impact gun rights and the Second Amendment.

Three of the judges – Hardiman, Kavanaugh, and Kethledge – are considered to be short listed. Hardiman who was widely considered the runner-up to Justice Neil Gorsuch and Kethledge were both on the first short list and virtually all mentions of a current short list include Kavanaugh.

Britt Grant

Personal:
40 y.o., married to Justin Grant who worked for the CIA, and has two sons and a daughter. Baptist.

Current Position: Associate Justice, Georgia Supreme Court. Appointed in 2017 by Gov. Nathan Deal. Currently also a Trump nominee for the 11th Circuit Court of Appeals

Education:
Wake Forest University, BA Summa Cum Laude, 2000
Stanford University Law School, JD, 2007

Clerkships:
Judge Brett M. Kavanaugh, US Court of Appeals for the DC Circuit, 2007-2008

Previous Positions:
Office of Rep. Nathan Deal, 2000-2001
Exec. Asst. to Director, Domestic Policy Council, The White House, 2001-2002
Spec. Asst to Director, USA Freedom Corps, The White House, 2002-2003
Dep. Assoc. Director, Office of Cabinet Affairs, The White House, 2003-2004
Associate – Commercial Litigation, Kirkland and Ellis LLP, Washington, DC, 2008-2012
Counsel for Legal Policy, Georgia Attorney General’s Office, 2012-2014
Solicitor General of Georgia, 2015-2016

Judicial Opinions:
You can find what she considers her most important decisions in the questionnaire that she submitted to the Senate Judiciary Committee when she was nominated for a seat on the 11th Circuit Court of Appeals. More importantly, for our purposes, as Solictor General she joined the amicus brief submitted by 24 states in Friedman v. City of Highland Park asking the US Supreme Court to take the case. This case involved Highland Park’s assault weapons ban. Unfortunately, the Supreme Court did not grant certiorari. She also successfully litigated a water rights case, Florida v. Georgia, that was heard by the Supreme Court under its original jurisdiction which is very, very rare.

Opposition:
The Alliance for Justice asserts that Grant is an “elitist” and is unfit for any Federal judgeship due to being too young and inexperienced. One of the things they objected to was her challenge to ObamaCare. I’m sure they also object to her activities on behalf of The Federalist Society where she has been active since her time in law school. 

Raymond W. Gruender

Personal:
55 y.o. (this week), married to Judy Gruender, no children. Was the victim of an attempted murder-suicide when his father gathered Gruender and his siblings for a group photo. The father than shot Gruender and his teenage sister before killing himself. Catholic.

Current Position:
Judge, 8th Circuit Court of Appeals. Appointed by Pres. George W. Bush and confirmed May 20, 2004

Education:
Washington University in St. Louis, B.A., 1984
Washington University School of Law, J.D., 1987
Washington University in St. Louis, M.B.A., 1987

Previous Positions:
Associate, Lewis, Rice and Fingersh, St. Louis, MO, 1987-1990
Assistant U.S. attorney, Eastern District of Missouri, 1990-1994
Partner, Thompson Coburn, St. Louis, MO, 1994-2000
Assistant U.S. attorney, Eastern District of Missouri,2000-2001
U.S. attorney for the Eastern District of Missouri, 2001-2004

Judicial Opinions:
Given that Judge Gruender has served on the 8th Circuit Court of Appeals for a number of years, he has participated in a number of decisions involving abortion, contraception, voting rights, criminal rights, etc. The SCOTUSBlog covers the major ones here. With regard to the Second Amendment, there were no notable cases. While he served as US Attorney, he did aggressively prosecute gun violations, presumably felons in possession, in Missouri according to former Sen. Kit Bond in Gruender’s confirmation hearing.

Opposition:
It would seem in reading the opposition comments on Gruender that the most significant opposition to him will come from the pro-abortion lobby. In an early decision (2006), he dissented in a case from South Dakota that the 8th Circuit overturned a law requiring the doctor to inform the woman the terminating the pregnancy will end the life of a unique human being. He also wrote the decision that overturned the Missouri law that precluded their DMV from issuing license plates that read “Choose Life” on First Amendment grounds.

Thomas M. Hardiman

Personal:
53 y.o. (next week), married to Lori Zappala Hardiman, and has three children. First in his family to attend college and worked as a taxi driver throughout high school and college. His brother-in-law, Stephen Zappala Jr. is the District Attorney of Allegheny County (Pittsburgh), PA. Catholic.

Current Position
:

Judge, 3rd Circuit Court of Appeals. Nominated by Pres. George W. Bush. Confirmed March 15, 2007.

Education:
University of Notre Dame, B.A., 1987
Georgetown University Law Center, J.D., Editor, Law Review, 1990

Previous Positions:
Associate, Skadden, Arps, Slate, Meagher and Flom, Washington, DC, 1990-92
Associate and Partner, Titus and McConomy, Pittsburgh, PA, 1992-1999
Partner, Reed Smith, Pittsburgh, PA, 1999-2003
Judge, U.S. District Court for the Western District of Pennsylvania, 2003-2007

Judicial Opinions:
Hardiman has the strongest record on the Second Amendment of all the potential nominees. He had a strong dissent in Drake v. Filko which challenged New Jersey’s may-issue carry laws. He said, in essence, “opining that the majority misreads Heller and McDonald, the Second Amendment applies outside the home, and New Jersey’s law conditioning issuance of a permit to carry a handgun in public on a showing of justifiable need contravenes the Second Amendment.” Hardiman also concurred in the Binderup case regarding the denial of the Second Amendment rights to those convicted of non-violent misdemeanors.

He wrote in his concurrence:

By contrast, we would
hold—consistent with Heller—that non-dangerous persons
convicted of offenses unassociated with violence may rebut
the presumed constitutionality of § 922(g)(1) on an as-applied
basis, and that when a law eviscerates the core of the Second Amendment right to keep and bear arms (as § 922(g)(1) does
by criminalizing exercise of the right entirely), it is
categorically unconstitutional.

Opposition:
The Alliance for Justice noted that Hardiman takes an expansive view of the Second Amendment, that he ruled in favor of the Little Sisters of the Poor in a case involving ObamaCare, and that he was a longtime member of the Federalist Society. While bad in their eyes, sounds good to me. That said, there are some on the right (RedState’s Erick Erickson) who think Hardiman will be Souter 2.0 even though he has been reliably conservative.

Brett M. Kavanaugh

Personal:
53 y.o., married to Ashley Estes Kavanaugh (who was Personal Secretary to Pres. George W. Bush), and has two daughters. Catholic.

Current Position:
Judge, US Circuit of Appeals for the District of Columbia. Nominated by Pres. George W. Bush. Confirmed May 26, 2006

Education:
Yale College, B.A., 1987
Yale Law School, J.D., 1990

Clerkships:
Judge Walter K. Stapleton, US Court of Appeals for the 3rd Circuit, 1990-1991
Judge Alex Kosinski, US Court of Appeals for the 9th Circuit, 1991-1992
Justice Anthony M. Kennedy, Supreme Court of the United States, 1993-1994

Previous Positions
:

Attorney, Office of the Solicitor General, U.S. Department of Justice, 1992-1993
Associate independent counsel, Whitewater investigation, 1994-1997, 1998
Partner, Kirkland and Ellis, Washington, DC, 1997-1998 and 1999-2001
Associate Counsel to the President, The White House, 2001-2003
Senior Assoc. Counsel to the President, The White House, 2003
Assistant to the President and Staff Secretary, The White House, 2003-2006

Scholarship:
Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings, 99 Yale L.J. 187 (1989-1990)
The President and the Independent Counsel, 86 Geo. L.J. 2133 (1997-1998)
Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454 (2009)
A Dialogue with Federal Judges on the Role of History in Interpretation, 80 Geo. Wash. L. Rev. 1889 (2011-2012)
Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907 (2014)
The Courts and the Administrative State, 64 Case W. Res. L. Rev. 711 (2014)
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2015)
The Judge as Umpire: Ten Principles, 65 Cath. U. L. Rev. 683 (2015)
Co-Author, Law of Judicial Precedent, 2016
Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions,
92 Notre Dame L. Rev. 1907 (2017)

Judicial Opinions:
It is estimated that Kavanaugh has written well over 275 opinion in his years on the Court of Appeals. He filed a dissent in Heller II which challenged gun registration and the AWB in DC. Because of the nature of the DC Circuit, Kavanaugh has written many opinions that deal with agencies and regulation. The SCOTUSBlog says he tends to take a case-by-case approach to administrative law without resorting to a full frontal challenge on Chevron deference. Nonetheless, he has worked to keep the administrative state in check especially with some of the rules promulgated by the Obama-era EPA. The SCOTUSBlog says, “To Kavanaugh, if Congress has not spoken on a matter of deep economic and political significance, which it had not in this instance, a regulation challenged under the relevant statute is presumed to be invalid.”

Opposition:
The Alliance for Justice in a bit of hyperbole says that a Kavanaugh nomination would “threaten the rights of consumers, workers, and immigrants, as well as women’s reproductive rights and protections for clean air and clean water.” Kavanaugh’s confirmation to the DC Circuit was held up for three years due to his being the principal author of the Starr Report which eventually led to Pres. Bill Clinton’s impeachment (but not conviction). I’m sure the Clinton true believers will continue to hold this against him.



Raymond M. Kethledge

Personal:
52 y.o., married to Jessica Kethledge, and has both a son and daughter. Outdoorsman who hunts and fishes in Michigan’s North Woods. Grandfather, Raymond W. Ketchledge, helped developed the acoustic anti-submarine torpedo during WWII. 

Current Position:
Judge, 6th Circuit Court of Appeals. Nominated by Pres. George W. Bush. Confirmed on June 24, 2008.

Education:
University of Michigan, B.A., 1989
University of Michigan Law School, J.D., 1993 

Clerkships:
Judge Ralph B. Guy, Jr., U.S. Court of Appeals for the Sixth Circuit, 1993-1994
Justice Anthony Kennedy, Supreme Court of the United States, 1997-1998 

Previous Positions:
Judiciary counsel, U.S. Sen. Spencer Abraham, Michigan, 1995-1997
Partner, Honigman, Miller, Schwartz & Cohn, Detroit, MI, 1998-2001
Counsel, Ford Motor Company, 2001-2002
Partner, Feeney, Kellet, Wienner & Bush, Bloomfield, MI, 2002
Co-Founder and Partner, Bush, Seyferth & Paige, Troy, MI, 2003-2008

Scholarship:
U.S. Supreme Court Review: October 1998 Term, 78 Mich. B.J. 1314 (1999)
Co-Author, Lead Yourself First: Inspiring Leadership Through Solitude (2017)
Ambiguities and Agency Cases: Reflections after (Almost) Ten Years on the Bench,
70 Vand. L. Rev. En Banc 315 (2017)

Judicial Opinions:
With regard to the Second Amendment, the major case Kethledge participated in was an en banc hearing of Tyler v. Hillsdale County Sheriffs Department which found that person who had been committed years earlier had the right to have their gun rights restored. Kethledge joined in a concurring opinion supporting the decision. Other notable decisions by Kethledge include EEOC v. Kaplan in which he wrote the unanimous decision affirming the lower court’s decision throwing out an expert’s testimony in a disparate impact case. The Wall Street Journal called it the Opinion of the Year. Another notable decision, US v. NorCal Tea Party Patriots, in which he wrote, “Among the most serious allegations a federal court can address are that an Executive agency has targeted citizens for mistreatment based on their political views. No citizen—Republican or Democrat, socialist or libertarian—should be targeted or even have to fear being targeted on those grounds.” He concluded by noting the IRS’s attorney were engaged in a selective manner and he expected them to do better.

Opposition:
The Alliance for Justice certainly doesn’t like Raymond Kethledge. They accuse him of wanting to “threaten the rights of consumers, workers, and immigrants, as well as women’s reproductive rights and the rights of the accused. He fights for the wealthy and powerful over the rights of all, attacking critical federal agencies that protect workers, consumers and the environment.” I presume they are angry because Kethledge jacked up the IRS over their treatment of a Tea Party group.

District Of Columbia v. Heller At 10

10 years ago today the opinion written by the late Justice Antonin Scalia in DC v Heller confirmed what we had known in our hearts was the intent of the Founding Fathers. To wit, that the Second Amendment affirms an individual right to keep and bear arms for self-defense and other purposes. Since that time, many inferior courts have tried to parse Justice Scalia’s language in such a way as to negate the impact of the Heller decision. It is as if district and appeals court judges were treating Heller and the Second Amendment as Southern legislators treated Brown v. Board of Education and desegregation. In other words, they have tried to ignore it and continue on their unconstitutional ways. The sad thing is that the Supreme Court since the death of Justice Scalia seems inclined to be treated like a door mat on the issue.

There have been some wins such as the essential McDonald v. Chicago case which used the 14th Amendment to apply the Second Amendment to the states, Bateman v. Perdue in North Carolina which said said people needed to be able to defend themselves during times of emergency, Ezell v. Chicago which held that training was an essential part of the right to keep and bear arms, and the twin cases of Moore v. Madigan and Shepard v. Madigan which forced Illinois to adopt shall-issue concealed carry.

Used with permission. Dick Heller and Amanda Suffecool with THE revolver.

There are still more cases in the pipeline that will eventually make it to the Supreme Court. Whether the Court will decide to accept them depends upon when and if another vacancy occurs. If a Ginsberg or a Breyer die or retire, then I think you’d have the solid 4th vote to accept a case and probably would get a 6-3 or 5-4 win on the merits.

There are people we need to thank for working hard to obtain the win in Heller. First of all, Dick Heller who, of the all the plaintiffs in the original case, actually tried to register his .22 LR revolver with the District and was turned down. Then the legal team of Alan Gura, Clark Neely, and others at the Institute of Justice which assembled the plaintiffs and shepherded the case from start to finish. Special thanks needs to go to Robert Levy of the Cato Institute who personally funded the case. Of course, thanks to Justices Scalia, Kennedy, Thomas, Roberts, and Alito for their good sense in forming the majority in the case. Finally, and this may seem odd, but thanks needs to go to former DC Mayor Adrian Fenty whose hubris led him to appeal the Circuit Court of Appeals win for Dick Heller. Without that appeal, Heller would not have gone to the Supreme Court and all the subsequent cases probably would never have been heard. Sometimes your opponents create your luck.

We’ve won some and we’ve lost some. However, we still have a long way to go in our efforts make this enumerated civil right as respected by the courts as the First Amendment. I really believe as we broaden the gun culture we will achieve those goals.