Will Brett Kavanaugh’s Appointment be a Pyrrhic Victory?

Second Amendment

Will Brett Kavanaugh’s Appointment be a Pyrrhic Victory?

Fayetteville, AR –-( The confirmation of Brett Kavanaugh as an associate justice of the United States Supreme Court is being celebrated by the right wing and by supporters of gun rights—those are not necessarily identical—but before passing out the bottles of beer, pause a moment. Will Kavanaugh an unmitigated blessing for the country?

First, let’s review his stance on gun rights. In a case that challenged the striking down of the District of Columbia’s good reason standard for the issuance of carry licenses, Kavanaugh was one of the judges to decline to give the appeal a hearing, thereby leaving the lower court’s ruling in effect. And in the second case brought by Dick Heller against the city’s gun laws, a suit against the restrictions on semiautomatic firearms and against the registration system, Kavanaugh dissented from the majority ruling, arguing that the previous Heller decision and the subsequent McDonald case mean that guns in common use cannot be banned and that registries, by contrast, are outside the norm. That latter point is at the heart of his thinking on gun laws. In his view, “text, history, and tradition” all have to be taken into account. History and tradition can allow restrictions like the National Firearms Act of 1934 to remain on the books, while a strict scrutiny test, or taking the text of the Second Amendment at its word, would leave a lot less room for burdening people who are trying to comply with the law.

But his philosophy on the subject is an addition and promises much progress in rolling back the excesses in states like New York and California. What about other aspects of law that touch on the basic rights of the American people?

The suspicion on the left regarding Kavanaugh—beyond the allegations of sexual assault—has focused on two areas, abortion, and presidential power. Abortion isn’t a topic to be addressed here, but the extent and limitations of what a president is able to do certainly does have an effect on gun rights, along with much else in the life of this nation.

Kavanaugh’s involvement in the George W. Bush era policy on the treatment of detainees remains murky, and a lack of clarity on the question of due process from a justice on the highest court is not something that inspires confidence. And that is not the end of concerns over how Kavanaugh understands the boundaries of presidential power and the checks that the law imposes on the same. In a 2009 article for the Minnesota Law Review, he wrote that given the pressures on presidents, they should be immune from civil or criminal procedures during their time in office. He claimed that this does not put the president above the law, which raises doubts about either his thinking or his veracity. He offers impeachment as a sufficient means of restraining presidents, but given the two-thirds vote required for conviction, along with the problems that arise when the party in control of the House of Representatives is the same as the president’s.

This goes beyond concerns over any individual president. When the executive branch is not balanced by the other branches of government and more generally by the law, rights become playthings in a political game, rather than the inviolable possession of each of us. Brett Kavanaugh may go through the same growth that his now colleagues have experienced over the years, but in the future, nominees should be questioned on their positions regarding how rights and government power are to be treated. That litmus test will tell us a lot about how they would rule in any number of particular cases.


About Greg CampGreg Camp

Greg Camp has taught English composition and literature since 1998 and is the author of six books, including a western, The Willing Spirit, and Each One, Teach One, with Ranjit Singh on gun politics in America. His books can be found on Amazon. He tweets @gregcampnc.

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