By Larry Keane
Gun control proponents are in a frenzy over Judge Brett Kavanaugh’s nomination to become an Associate Justice of the United States Supreme Court. Even before President Trump made his announcement, U.S. senators were lining up to denounce the pick. Never mind they didn’t know who it would be. They do not even want to entertain discussion about the merits of an originalist joining the High Court.
U.S. Sen. Bob Casey (D-Penn.) sent out a press release more than nine hours ahead of the announcement that he wouldn’t consider the President’s nomination, regardless of who it might be. This was despite Sen. Casey tweeting that he was elected to represent all Pennsylvanians. By the way, President Trump won Pennsylvania, gaining the confidence of 2,970,733 of the state’s voters.
Not to be outdone, U.S. Sen. Richard Blumenthal (D-Conn.) said a full day prior to the announcement that any nominee coming from President Trump would be coming from “a group of right-wing fringe ideologues…” It might be important to note here that Judge Kavanaugh has been on the D.C. Circuit Court of Appeals for 12 years and in that time, the U.S. Supreme Court has adopted his opinions 11 times. That’s far from the fringe.
Fellow Democratic Connecticut U.S. Sen. Chris Murphy joined Sen. Blumenthal for a mid-day press conference hours before the announcement to let media know that any nominee would be “unacceptable.”
Objectionable Originalism?
So, what makes Judge Kavanaugh such an unacceptable choice? It turns out that he interprets the law at it was written. He argued in a dissent to a decision that followed the original 2008 landmark Heller ruling affirming the individual right to keep and bear arms that Washington, D.C.’s ban on certain models of semiautomatic firearms, such as modern sporting rifles, was unconstitutional.
“My judicial philosophy is straightforward. A judge must be independent, and must interpret the law, not make the law,” he said from the White House East Room at the televised announcement of his nomination. “A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
In other words, he won’t make policy from the bench or uphold other lower-court judges that have done so. This approach stalls, or potentially could reverse, many of the court decisions that liberal Senators such as Casey, Blumenthal and Murphy have strongly supported as substitutes for legislation that they could not get passed on Capitol Hill.
The Real Issue: Rights
Sen. Murphy says he could not support a “Second Amendment radical.” Murphy believes Judge Kavanaugh’s opinion that semiautomatic rifles are commonly-owned and therefore Constitutionally protected is beyond the judicial mainstream and what the late Justice Antonin intended in his writing for the majority in the Heller decision. Sen. Murphy conveniently ignores that Justice Scalia joined Justice Clarence Thomas in 2015 in dissenting to the Supreme Court’s refusal to hear a challenge to Highland Park, Illinois band on so-called “assault weapons.”
Several senators held court of their own on the Supreme Court steps to shout their opposition to Judge Kavanaugh, just moments after the announcement. Sens. Cory Booker (D-N.J.), Bernie Sanders (I-Vt.), and Elizabeth Warren (D-Mass.), excoriating Judge Kavanaugh for a laundry list of liberal-offending infractions, including not agreeing with them on gun control.
But leading the shouting is Senate Minority Leader Chuck Schumer (D-N.Y.). He is trumpeting a plan to attempt to reject the nomination for a litany of issues, including gun rights. Stay tuned.
Larry Keane is Senior Vice President and General Counsel for the National Shooting Sports Foundation.