With the announcement by Justice Anthony Kennedy that he will retire after serving on the U.S. Supreme Court for thirty years, years of uncertainty on how the nation’s highest court might decide cases involving the Second Amendment may soon become more clear.
Justice Kennedy has long been considered a ‘swing vote’ on the court, having sided on issues favorable to conservatives as well as on issues championed by liberals. That is why some court observers have speculated the Supreme Court has only taken up one gun rights case in the ten years since it issued its landmark decision in D.C. v. Heller in 2008, and that was in 2010 when it ruled in favor of the Second Amendment rights in McDonald v. City of Chicago.
In both of those cases, Kennedy sided with the majority but did not offer a written opinion in either case, leaving in question the depth of his commitment to the Second Amendment. Faced with the uncertainty as to how Kennedy may vote on gun cases, speculation is that neither the liberal nor the conservative side of the Court was eager to take up any of the dozens of cases that were presented for consideration.
Anytime a new judge is appointed to the Court, there is never a guarantee as to how the new judge will come down on any particular issue, including the Second Amendment. We can only hope that during the vetting process and the confirmation hearings that are sure to come in the next several weeks in the selection process to replace Justice Kennedy, we may be able to have at least a better shot at anticipating the new justice’s temperament.
Here are a few of possible nominees and what information we can gather regarding their position on guns and the Second Amendment, where available.
Judge Thomas Hardiman
An early front-runner appears to be United States Circuit Judge Thomas Hardiman, one of President Trump’s finalists for the vacant seat on the Court that went to Neil Gorsuch last year instead. Hardiman has a second chance to be nominated by President Trump.
When it comes to the Second Amendment, Hardiman has a track record of taking an expansive as well as an originalist approach to the Second Amendment. In two cases involving gun rights a few years ago, Hardiman explained:
“. . . the threshold question in a Second Amendment challenge is one of scope: whether the Second Amendment protects the person, the weapon, or the activity in the first place. This requires an inquiry into ‘text and history.”
“. . . the most cogent principle that can be drawn from traditional limitations on the right to keep and bear arms is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment.”
Further, Hardiman staked out a strong position four years ago in favor of a 2nd Amendment right to carry a gun in public. He dissented when the 3rd Circuit upheld a New Jersey law that required people seeking a gun permit to demonstrate a “justifiable need” to be armed in the case of Drake v. Filko, writing a 40-page dissent, arguing the high court and Justice Scalia described the 2nd Amendment as protecting a right to “self-defense.”
Hardiman went on to write that because “the need for self-defense naturally exists outside and inside the home, I would hold the 2nd Amendment applies outside the home,” he wrote in Drake. In passing its law, “New Jersey has decided that fewer handguns legally carried in public means less crime,” he wrote. “It is obvious that the justifiable need requirement functions as a rationing system designed to limit the number of handguns carried in New Jersey,” he said, “but it cannot stand in the face of a 2nd Amendment challenge,” he concluded.
But Hardiman is not the only name high on Trump’s list.
Judge Brett Kavanaugh
Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, 53, is rumored to be at or near the top of Trump’s list of possible nominees.
Following the Supreme Court’s decision in D.C. v. Heller in 2008, the District of Columbia went to work on crafting new gun regulations in light of the Heller decision, including gun registration and the ban of certain semiautomatic rifles and magazines with a capacity greater than ten rounds. Kavanaugh was on the bench in 2011 when the regulations were challenged in Heller v. District of Columbia (referred to as Heller II). In that case, the majority of the appeals court upheld the restrictions. Kavanaugh dissented.
Judge Brett Kavanaugh, would have struck down regulations banning semi-automatic long guns and requiring gun registration, but he would have asked a lower court to conduct more fact-finding on whether a ban on high-capacity ammunition clips passed constitutional muster. The right to keep and bear arms, he argued, should not be subject to the balancing test adopted by the majority. Because semiautomatic weapons and high-capacity magazines have been in common use, he argued, they should presumptively be deemed constitutional.
Kavanaugh was also a law clerk for Justice Anthony Kennedy.
Another former Kennedy law clerk has made the list as well.
Judge Kethledge has been serving on the Sixth U.S. Circuit Court of Appeals since his appointment in 2007. Kethledge was one of five appellate judges who ruled that someone previously forced into a hospital to treat mental health problems should be able to seek to have their gun rights restored, as long as they are no longer considered a threat to themselves or others.
A plus for Kethledge is that he is an avid hunter and understands and appreciates guns.
Canady has been a Florida Supreme Court Judge since his appointment in 2008. He is also a former Republican member of the U.S. House of Representatives, serving from 1993 to 2001. During his congressional tenure, he opposed efforts to strengthen gun regulations, voting against both the Brady bill mandating background checks for firearm purchases transacted through licensed dealers and the 1994 assault weapons ban.
Last year, he dissented when his colleagues ruled that defendants in shooting cases seeking to invoke Florida’s “stand your ground” law had to prove in a pre-trial evidentiary hearing why they shouldn’t be prosecuted. In January, a state lawmaker pointed to Canady’s dissent while arguing in support of a bill that has since passed that shifted that burden of proof to prosecutors. This has been considered a victory for self-defense rights.
Judge Allison Eid was appointed by Trump to the U.S. Court of Appeals for the 10th Circuit to fill the vacancy left by Supreme Court Justice Neil Gorsuch. She previously served on the Colorado Supreme Court. In 2012 she authored a unanimous state Supreme Court opinion that opened the door to concealed firearms on Colorado’s public college and university campuses, overturning a university policy that banned handguns on campus.
Her resume also includes a stint as a law clerk for Supreme Court Justice Clarence Thomas.
William H. Pryor Jr.
Since 2003, Pryor has been a judge on the 11th Circuit Court of Appeals. He also served a stint as the Alabama attorney general from 1997 to 2004.
While the Alabama AG, Pryor denounced lawsuits against gun manufacturers that had been filed by city governments and victims of violence, stating such litigation was being carried out by “leftist bounty hunters” in what amounted to an “assault on fundamental civil rights.”
As Alabama’s AG, Pryor also injected himself into the case of a Texas man who had been charged with violating the federal ban on possessing firearms while under a domestic violence restraining order. Pryor filed a brief in the Fifth Circuit case, claiming the government’s interpretation of the law “a sweeping and arbitrary infringement on the Second Amendment.”
During the nominating process for his appointment to the U.S. Court of Appeals, his positions on gun rights led to questions as to whether he could be impartial on gun cases, being criticized for his opposition to gun restrictions.
Wait and See
We are in the early stages, of course, in our “Supreme Court Watch” and we will continue to monitor the developments as they occur in the wake of Justice Kennedy’s announcement.
President Trump has indicated he will be making his nomination “very quickly.” Whoever is nominated may wind up sitting on the bench for decades. Let’s just hope that our political leaders take their time and get it right, for our generation and generations to come.