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.
