President Trump's pick for the U.S. Supreme Court, Judge Brett Kavanaugh, will be assailed by gun-control advocates as a likely judicial tyrant bent on arming children with machine guns. How does Kavanaugh look from our Montana perspective?
Unfortunately, the expected opposition to Kavanaugh by gun control extremists is not as comforting as it could be. From an East Coast or D.C. perspective Kavanaugh may look like a Second Amendment supporter, but from our more liberty-oriented Montana perspective he is a mixed bag.
Kavanaugh does believe that Second Amendment infringements should be subject to a strict scrutiny level of judicial review, a relatively high barrier. He thinks that semi-auto rifles deserve the same protection as the Supreme Court afforded semi-auto pistols in its Heller decision. But, he also thinks that much of the gun control currently applied across the U.S. may be tolerable notwithstanding the Second Amendment.
Kavanaugh's written history with the Second Amendment is in the context of D.C. As a longtime D.C. denizen, Kavanaugh thought that the effective D.C. gun ban laws were inconsistent with the Second Amendment. That's good, but that's not so impressive from our Montana perspective.
From our more liberty-oriented Montana perspective, recognizing constitutional prohibition to an outright and effectively total gun ban is not something to cheer about. Here, we're more concerned about less direct infringements such as a universal background checks (a euphemism for requiring that all private firearm transfers be recorded on federal computers), waiting periods to purchase firearms, making a visit to a psychologist grounds for an indefinite firearms possession disability, gun confiscation orders and more.
It appears as if Kavanaugh would see such infringements through the lens of a D.C. insider, and maybe think them tolerable in fly-over country like Montana. That's not consistent with our Big Sky perspective.
Second Amendment scholar Dave Kopel writes about Kavanaugh in more detail at: http://reason.com/volokh/2018/07/09/judge-kavanaugh-and-the-second-amendment.
He concludes: "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."
The best that can be said about Kavanaugh is that he would likely interpret and enforce the Constitution and laws as written, and not seek or invent unwritten and hidden meaning between the lines. And, he will probably hold government accountable to a narrow reading of authority granted by the Constitution or Congress.
Those positives are enough to warrant support for Kavanaugh's confirmation. However, Montana gun owners should not view Kavanaugh as a champion for the individual liberty that our founders intended to preserve and protect.