Quote of the day—Judge Brett Kavanaugh

It is especially inappropriate for the majority opinion here to apply intermediate scrutiny rather than strict scrutiny to D.C.’s ban on semi-automatic rifles. No court of appeals decision since Heller has applied intermediate scrutiny to a ban on a class of arms that have not traditionally been banned an “incidental” regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.

Gun bans and gun regulations that are longstanding—or, put another way, sufficiently rooted intext, history, and tradition—are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history,and tradition are not consistent with the Second Amendment individual right.

Judge Brett Kavanaugh
October 4, 2011
HELLER, et al., Appellants v.DISTRICT OF COLUMBIA, et al., Appellees.No. 10–7036.
[Sounds solid to me. I just want to hear that in a majority opinion from SCOTUS.—Joe]

11 thoughts on “Quote of the day—Judge Brett Kavanaugh

  1. It sounds like he’s saying that the Sullivan Act is constitutional — it certainly is “long standing”.

    As far as “scrutiny”, strict or otherwise, the whole concept is a Constitutional farce. The plain English translation of “intermediate scrutiny” is “you’re allowed to infringe the Constitution if you can construct any old excuse that isn’t complete nonsense” while “strict scrutiny” translates to “you’re allowed to infringe the Constitution if you can construct a pretty good excuse”. Neither of them are valid, given the plain words of the Constitution. In a conflict between “shall not be infringed” and “strict scrutiny”, the former clearly must win.

    • I’d have to go read the dissent again (I just don’t have time right now) but my impression was that he would require it be very long standing (early 1800s) and widespread throughout the nation. The AWB in California is rather long standing and he didn’t give that any weight in his dissent.

    • Yup. Thus fundamental principle is replaced with “tradition”.

      Where have we heard that before? It comes from Rome and it’s embraced by Jesuits, Masons and the Confederacy. In essence it replaces God’s law with man’s law because, well, this-is-the-way-we’ve-always-done-it-so-therefore-it-is-great-so-shut-up. That’s how the slave economy was defended, for example. They’ll elevate “tradition” as having a value all it’s own, greater than whatever fundamental principle of liberty they don’t like.

      We’ve all had the “tradition card” pulled on us at some point. It’s the argument the Confederacy uses when they have no argument.

      I’ll assume he’s talking about the NFA there, with the words “traditionally banned”. Of course, what are expected to uplift as “traditional” was at one time newly fabricated bullcrap.

      There’s also a reference to the Overton Window, and Progressivism; infringe a little bit, let it sink in and become established, then infringe a little bit more, ad infinitum.

      The guy is establishment all the way. Swamp educated, swamp indoctrinated, swamp trained. Such a one is not your friend, but of course he will do everything he can do to make you think he is your friend.

      • And do you have a better candidate that could get confirmed? Or a feasible way to “drain the swamp”?

        • I don’t.
          The progressive nature of incremental elimination of a right has to be fought just as relentlessly. Plessey v Ferguson wasn’t completely overturned for 57 years of careful, incremental action, culminating in Brown v Board of Education, and even then, the implementation took another generation.
          Incrementalism is slow and frustrating, but it involves better law than someone who comes along and decides to break completely with tradition and precedent and institutes a completely new legal system. The Leftists do that and we call it judicial activism.

  2. Certainly much better than anyone HRH would nominate (Justice Obama?). I am somewhat concerned about giving “long standing” infringements (i.e the NFA) a constitutional pass. However, in this era it’s the best we can hope for. Anyone foolish enough to publicly endorse rehearing the NFA by the Supreme Court would never make it out of committee, even in a Republican controlled Senate.

    • The way to chip away at NFA is to invalidate the Hugh’s Amendment (not long standing, and not widespread among the states). Then attack the tax and registration of a specific enumerated right.

  3. “Gun bans and gun regulations that are longstanding—or, put another way, sufficiently rooted intext, history, and tradition—are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history,and tradition are not consistent with the Second Amendment individual right.”

    This is the most statist thing I’ve ever heard a lawyer say. What it tells you is that the 2A was the supreme law of the land until case law became the supreme law of the land but the rulings I don’t like and especially rulings that are recent are neither case law nor constitutional. What a flippin traitor to the constitution.

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