Kavanaugh Confirmation May Mean More Second Amendment Cases Before The Supreme Court
Even before President Donald Trump revealed on national TV Monday night that he had selected D.C. Circuit Judge Brett Kavanaugh from among four finalists to be his nominee to succeed the retiring Anthony Kennedy on the Supreme Court, civil rights groups that lobby for gun-owners’ rights had declared “all of them are winners.”
So it is no surprise that Kavanaugh, 53, a Yale Law School graduate who, among other administrative and judicial posts, served as President George W. Bush’s White House Staff Secretary and worked with Ken Starr in impeachment proceedings against President Bill Clinton, is being widely lauded as a Second Amendment stalwart.
In fact, many believe, adding Kavanaugh to the Court will end an almost decade-long reluctance to accept Second Amendment related cases.
The Supreme Court’s last significant Second Amendment rulings were 2008’s Heller v. D.C. and 2010’s McDonald v Chicago. Earlier this year, the Court opted not to hear Peruta v. California, which many hoped would produce a ruling stating that it is unconstitutional for local governments to withhold handgun licenses and permits to otherwise eligible citizens on an arbitrary “may issue” instead of “shall issue” basis.
Senate Majority Leader Mitch McConnell said Monday that confirmation hearings for Kavanaugh will begin no sooner than September but should be finished before November’s midterm elections.
Kavanaugh’s confirmation isn’t a done deal. Republicans hold a 51-49 majority in the Senate. The terminally ill Sen. John McCain is not expected to vote, which means presumed Republican supporters have a one-vote majority strictly along partisan lines.
While adding a relatively young and conservative judge to the Court is significant, Kavanaugh won’t change the make-up on the Supreme Court on the Second Amendment. Kennedy voted for an “honest reading of the U.S. Constitution” and voted with the 5-4 majorities in Heller and McDonald.
According to Jacob Sullum, a senior editor at Reason magazine, Kavanaugh’s defense of gun-owners’ rights since his 2006 appointment to the U.S. Court of Appeals for the D.C. Circuit by Bush has, indeed, been noteworthy.
Kavanaugh wrote the dissent in a 2011 case that followed the 2008’s Heller ruling.
Sullum writes: “Kavanaugh dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia's ban on so-called ‘assault weapons’ and its requirement that all guns be registered. Kavanaugh disagreed with the majority's use of ‘intermediate scrutiny,’ saying an analysis ‘based on text, history, and tradition’ is more consistent with the Supreme Court's Second Amendment precedents.”
“In Heller,” Kavanaugh wrote, “the Supreme Court held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional.”
Here is a roundup of comments regarding Kavanaugh’s nomination:
National Rifle Association Institute for Legislative Action Executive Director Chris Cox: “President Trump has made another outstanding choice in nominating Brett Kavanaugh for the U.S. Supreme Court. He has an impressive record that demonstrates his strong support for the Second Amendment. On behalf of our 6 million members, the NRA strongly supports Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court. We will be activating our members and tens of millions of supporters throughout the country in support of Judge Kavanaugh. He will protect our right to keep and bear arms and is an outstanding choice to fill Justice Kennedy’s seat.”
Volokh Conspiracy David Kopel: “No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh. His 2011 dissenting opinion in the case known as Heller II was consistent with his long-standing adherence to text, history, tradition, and Supreme Court precedent.”
Ammoland’s Tred Law: “Judge Kavanaugh's opening statement began with him making the point that ‘a judge must be independent and must interpret the law, not make the law.’ It is a very reassuring statement to hear when gun owners greatest fear is to get another activist judge on the high court.”
Bearing Arm’s Tom Knighton: “Justice Kavanaugh might just be a good friend to have on the bench.”
Fox News’ Frank Miniter: With Kavanaugh on the Court, it will “take on Second Amendment cases. This is ever more important today, as the Supreme Court has declined to take another gun-rights case since declaring that the Second Amendment also restricts state and local governments in its McDonald decision. The high court even passed on Peruta v. California, a case challenging local restrictions in California that require a person to prove to the local government’s satisfaction that they really need their right to bear arms before the local authorities will allow them to carry a handgun.”
National Shooting Sports Foundation (NSSF) Senior Vice President and General Counsel Lawrence Keane: “We are confident that Judge Kavanaugh will serve our nation with distinction as an associate justice of our nation’s highest court and that he will make decisions that will serve to protect the Second Amendment and other Constitutionally guaranteed rights of law-abiding Americans.”
Second Amendment Foundation (SAF) Executive Vice President Alan M. Gottlieb: “We’re encouraged by this nomination because by adding Judge Kavanaugh, we might see the high court become more willing to accept and rule on important Second Amendment issues, such as right-to-carry. We know that the Court will face enormous challenges on other rights issues, but the right to keep and bear arms is a cornerstone of the Bill of Rights that has set this nation apart as a beacon of freedom and liberty. It is time for the court to examine the constitutionality of various state laws that restrict the right to carry, for example, and make arbitrary decisions about who can exercise that right. Our courts should be the place that we can trust to safeguard our rights and promote freedom.”
Gun Owners of America (GOA) Executive Director Erich Pratt: “Gun Owners of America is optimistic that Judge Brett Kavanaugh will be a huge improvement over the retiring Justice Anthony Kennedy on many constitutional issues, including the Second Amendment. Initial reports suggest that Judge Kavanaugh deeply respects the Second Amendment, even though he was not the strongest of the finalists. Nevertheless, Judge Kavanaugh filed a pro-gun dissent in Heller II, arguing that Washington, DC’s ban on semi-automatic firearms was arbitrary and unlawful. In fact, his dissent was so well argued that GOA’s subsequent legal briefs have repeatedly held up his dissent as the model to follow. In another case, Kavanaugh correctly interpreted the Firearm Owners Protection Act to find that a defendant could not be sentenced to 30 years in prison for use of a fully automatic firearm if he was unaware that the gun fired automatically. Kavanaugh also supported the prevailing opinion in the Citizens United case, which affirmed GOA’s voice in the political arena. GOA hopes that the Senate will confirm Kavanaugh — and that the Supreme Court will take up more Second Amendment cases, thus repealing the onerous and unconstitutional restrictions on the right to keep and bear arms that exist throughout the country.”
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INNOVATION v. REGULATION
Cobalt Kinetics’ Offers '50 State Solution' for the AR-15 Platform
Utah-based Cobalt Kinetics, which introduced the Sentry Model 27 rifle, is now offering the Forged Upper Conversion Kit, in a “strategic pivot in product offering” designed to “connect the universal legality and utility of the 27 to the masses of AR-15 owners living under the shadow of anti-gun legislation.”
“We have always heard the needs of our dealers and clients (in) more restrictive states, especially California, have been looking for a legal solution to a complicated and ever-changing legislative environment,” Cobalt Kinetics Vice President Skylar Stewart writes. “We are proud of the Forged Upper Conversion Kit and we believe it’s the best way to maintain as much functionality as possible with the AR platform. It can be configured to be legal in all 50 states.”
Stewart described California as “a large and rich gun market that just suffered the enactment of the most sweeping anti-gun legislation since their 1999 assault weapon ban.”
He warns the Forged Upper Conversion Kit is “very labor intensive. It’s not an easy thing to produce at Cobalt’s level of quality. This kit is not about supporting our financial bottom line. We want to make this kit accessible to as many people as possible to make a real difference. It’s ridiculous for responsible gun owners to be turned into criminals overnight by misguided laws. At this moment we’re hoping to help support and maintain the shooting culture in our country.”
The kit presents as a stripped lower, including only the assembly hardware for the 13 stock components, buffer retainer, bolt catch screw, trigger guard and a couple of non-typical springs. Cobalt assures a 99 percent cross-brand compatibility as it applies to uppers, triggers, magazine catches and takedown hardware.
In March 2016, Cobalt introduced the Sentry Model 27 as “not your granddaddy's semi-automatic rifle.” The 27 departed from Cobalt’s BAMF (Billet Aluminum Modern Firearm) platform with a lower half designed to feel like a more traditional rifle to be “compliant” — aka featureless — in restrictive markets like California, according to AmmoLand Editor Duncan Johnson in a July 5 AmmoLand analysis.
“The grip and stock interface and even the trigger shelf were altered to meet regulations that define and subsequently prohibit a gun based on the geometry of the grip and stock. The receiver extension bears the cheek rest while the aggressively swept grip organically morphs into a stock,” Johnson writes. “It’s a beautiful thing — evidence of the skill and nuance appreciated by the talented artists, engineers and machinists at Cobalt Kinetics.”
The Forged Upper Conversion Kit is being released in the “stripped” state at an Introductory manufacturer suggested price of $699. It’s promised to be available for looks, feels, and buys at Cobalt’s dealers by mid-July. Standard catalog colors are Black, Stainless, Cobalt Kinetics Green, FDE, Gray and Cobalt (gunmetal gray). Contact Cobalt Kinetics for details, restrictions, and special order options.
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Florida Lawmakers to Examine New Law’s ‘Red Flag” Gun Seizure Measures In 2019
In early March, three weeks after the Valentine’s Day school shooting in Parkland, Florida Gov. Rick Scott signed into law the "Marjory Stoneman Douglas High School Public Safety Act,” an omnibus school safety bill that included several controversial gun control measures.
The act, incorporated under Senate Bill 7026, raises the age to buy all firearms to 21, imposes a three-day waiting period for most gun purchases, allows trained school workers to carry handguns, provides new mental health programs for schools, and restricts access to guns from people who show signs of mental illness or violence.a series of gun-control proposals.
While all gun control components are being debated by state Legislature candidates as a campaign issue, the measure in the 14-page law designed to temporarily prevent people “at high risk of harming themselves or others from accessing firearms” is drawing the most attention as local law enforcement officials try to actually implement this “red flag” law.
Among tests used to determine if guns can be seized from an owner is whether “the person poses a significant danger, including danger as a result of a dangerous mental health crisis or violent behavior.”
“In other words, the vast majority of mentally ill people are free to continue to possess weapons in Florida,” writes Laurence Reisman in TCPalm.com. “That’s OK. Most mentally ill Floridians are not dangerous and should retain their constitutional right to bear arms. To do otherwise would stigmatize mental illness even more.”
But while there are obvious cases when someone in mental distress who is behaving erratically should have access to firearms restricted — like walking down the middle of s street naked while brandishing a firearm — not all cases will be as simple, Reisman notes.
He cites the case of Timothy Sartori, 29, an Iraq War veteran from Sebastian who shot to death a Fort Pierce man while the two were stopped at a traffic signal.
Sartori feared for his life after man pulled up alongside him, threatened to shoot him and reached for something. Sartori, who legally carried a 15-round Glock 9mm semi-automatic pistol on his lap, said he thought he saw a weapon and unloaded his gun.
Satori was not charged under Florida’s “stand your ground” law.
But in their investigation, prosecutors noted comments from Sartori’s girlfriend that he suffered from post-traumatic stress disorder. Among his symptoms, she said: trouble sleeping, over-anxiousness and hyper-vigilance.
Would Sartori be a candidate for a risk protection order? Indian River County Undersheriff Jim Harpring told Reisman probably not.
“If he’s not recklessly displaying (the gun) when he drives, probably not,” Harpring said. “People seek mental health help all the time, but that doesn’t necessarily mean they’re mentally ill.”
State Rep. Erin Grall, R-Vero Beach, told Reisman that the Legislature, which passed the law quickly during the last session, will be clarifying the ‘red flag’ components of the bill.
Reisman offers his how suggestions: 1) definitions of mental illness; 2) whether folks accused of being dangerous should have the right to legal counsel or recover legal fees if they’ve been wrongly accused; and 3) safety issues regarding seizure of weapons.
“Just because we all agree and a law was passed doesn't mean deadly problems will be solved,” he writes. “Potentially dangerous folks with mental illness will continue to access guns even if they’re ordered not to. But the law is a step in the right direction.”
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IN THE COURTS
SAF to Challenge ‘Not Legal’ Washington State Gun Control Ballot Measure
Supporters of Initiative 1639 in Washington State turned in more than 375,000 signatures to the Secretary of State on July 6 to qualify for the November ballot.
It would be the most sweeping gun safety initiative put before Washington voters, by raising the age of purchase of semi-automatic rifles to 21 and requiring enhanced background checks and a waiting period similar to what’s currently required for handguns in the state.
But opponents are promising a legal fight.
The Second Amendment Foundation has filed a challenge to block the initiative, arguing the petition did not appropriately convey the changes the initiative would make to state law.
“When you read it, you’re getting a mix-up of current law, proposed law, subtracted law,” said Alan Gottlieb, founder of the Second Amendment Foundation (SAF), told Natalie Brand of king5.com. “You don’t know what you signed. That’s not legal under our state constitution and our initiative law.”
Gottlieb told Brand that the SAF plans to file another challenge, as early as this week, with Thurston County Superior Court.
“We think there’s a lot of merit to our case,” he said. “It’s not a matter of keeping them off the ballot, it’s a matter of keeping the initiative process legal and lawful.”
Separate from the legal challenge, Gottlieb told Brand that he predicts a contentious election cycle should the initiative qualify for the November ballot. The measure is expected to drive up turnout across both sides of the gun debate.
“I’m really appalled by the fact that it’s denying second amendment constitutional rights to 18 to 20 years old,” Gottlieb told Brand. “These are people in many, many cases who go off and fight in our military, protect our rights and our freedoms, now you’re taking it away from them.”
The initiative backed by the Alliance for Gun Responsibility comes after similar legislation stalled in the state legislature this past session.
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