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Title: Judge Raymond Kethledge and the Second Amendment
Source:
National Review
URL Source: https://www.nationalreview.com/benc ... edge-and-the-second-amendment/
Published: Jul 6, 2018
Author: Donald Burke
Post Date: 2018-07-07 09:49:34 by Tooconservative
Keywords: None
Views: 3260
Comments: 53
Perhaps the most important Second Amendment case to come before the Sixth Circuit in the last few years — so important that the court took it en banc — is Tyler v. Hillsdale County Sheriff’s Department. The case dealt with a federal statute that barred anyone who had ever been involuntarily committed from owning a gun. Although Clifford Tyler had enjoyed decades of good mental health, the statute barred him from owning a gun because he had been involuntary committed — one time — 28 years earlier. In a divided vote, the court held that Tyler had plausibly alleged that the statute violated his Second Amendment rights. Judge Kethledge went further still. Joining an opinion by Judge Sutton, he concluded that the statute, as applied to Tyler, did violate the Second Amendment because Tyler had not received an individual adjudication before he lost his rights. Kethledge thus eschewed the debate between strict and intermediate scrutiny that occupied most of the court. These so-called tiers of scrutiny require the government to show that statutes infringing on a constitutional right serve an important interest and relate closely to that interest; under strict scrutiny, the interest must be compelling and the statute narrowly tailored. In too many cases, these flexible tests empower judges to substitute their own policy preferences for the law — first by selecting the applicable standard (seemingly at random in many cases) and then by decreeing which governmental interests count as compelling and which do not. Thus, in his dissenting opinion in a case involving the Virginia Military Institute’s all-male admission policy, Antonin Scalia warned that judges’ abstract legal tests can never supersede our “constant and unbroken national traditions.” Judge Kethledge understands that lesson, which is why his position in the Tyler case faithfully applied Justice Scalia’s opinion in Heller. There, the Supreme Court recognized two narrow exceptions to the general rule that citizens have the right to keep and bear arms for self-defense — for felons and for the mentally ill. Kethledge recognized that, under Heller, the government was required to show that Tyler fell into one of these historically recognized categories before it could strip him of his Second Amendment rights. Specifically, he concluded that the government must not merely argue about interests and tailoring, but provide gun owners like Tyleran individual adjudication as to their mental health. In this way, Judge Kethledge honored the principles set out in Heller and showed that he sided with Justices Thomas and Scalia in concluding that Second Amendment rights must be protected to the full extent of their historical scope. Kethledge’s commitment to the Second Amendment extends beyond the bench. In his public speeches, he has taught students and lawyers about originalism — the methodology that Justice Scalia used in Heller to confirm that the Second Amendment protects an individual right to possess firearms for self-defense, not just the militia. According to Judge Kethledge, judges must answer constitutional questions not by consulting their own policy preferences or the evolving consensus in elite law schools, but rather by ascertaining “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.” That is precisely the approach taken by Scalia’s majority opinion in Heller, which devoted more than 30 pages to analyzing the meaning of the Second Amendment at the time it was adopted. Likewise, in moderating a Federalist Society panel on the Second Amendment, Kethledge suggested — as Justice Thomas has recently — “that the lower courts have not been faithfully applying Heller, as to methodology and also as to sort of the rigor of their scrutiny.” And in response to the misconception that the Second Amendment applies only to muskets and bayonets, he explained that, today, the Second Amendment protects modern weaponry just like “the First Amendment protects the Internet.” In his personal life, Judge Kethledge exemplifies the kind of robust and responsible gun ownership that the Heller Court recognized to be at the core of the Second Amendment since the founding era. Kethledge has hunted in northern Michigan every year for over two decades, usually in the Huron-Manistee National Forest. And when his son, Ray, Jr., came of age, the two Rays started hunting together, just like generations of Americans before them. The same goes for self-defense: In addition to many years owning rifles and shotguns, Judge Kethledge has for over a decade carried a .40 Glock 27 for personal protection (with an active conceal-carry permit). It is thus no surprise that Judge Kethledge has likened hunting to judging — a comparison that may make him unique among federal judges. In a recent speech to the Federalist Society chapter at the University of Michigan law school, Judge Kethledge used his experience hunting for partridge to illustrate his concern that the Chevron doctrine has made courts defer too readily to federal agencies’ interpretations of the law: As one of Judge Kethledge’s former law clerks, it should go without saying that I would be very pleased to see him selected to fill the upcoming Supreme Court vacancy. To be sure, he is one among a number of impeccably well-qualified candidates, each of whom can be expected to discharge that responsibility ably. What is absolutely clear to me is that all Americans would find in Judge Kethledge a justice who is as committed to originalism and textualism as he is to the Second Amendment and the American way of life. Poster Comment: A nice photo of the judge teaching his young son to shoot is at NR. I'll try to link it (from NR's WP.com site), not sure it will work here at LF. Judge Raymond Kethledge vigorously defends — and exercises — individual rights under the Second Amendment. On the bench, he has faithfully applied the Supreme Court’s decision in District of Columbia v. Heller, and ruled that Second Amendment rights deserve at least as much protection as any others. Off the bench, he is an avid hunter and a lecturer on originalism, textualism, and the Second Amendment. Around this time of year I like to hunt for grouse (or partridge, as we call them in Michigan) with my son in the forests Up North. Sometimes the birds are in cedar swamps that are full of alder bushes and dense secondary growth. More than once I’ve decided that, even if the birds are in there, it’s not worth pushing through all those branches to get to them. Interpreting statutes like the Clean Air Act is often similar. The statute presents a dense undergrowth of sections and subsections and subsections within those. The answer to the specific question in the case might lie somewhere in those sections and subsections, but working through them is hard. And meanwhile the agency is there to offer a path already cleared. Down that path might lie a woodcock rather than a partridge, but both are game birds, and the judge might be tempted to conclude that under the circumstances a woodcock is good enough. And so in agency cases it often seems that the court pauses only briefly at step one, without much effort to hack through the undergrowth, before proceeding straightaway down the cleared path of step two. Donald Burke clerked for Judge Raymond Kethledge from 2009 to 2010 and for Justice Antonin Scalia from 2011 to 2012. He practices trial and appellate litigation in Washington, D.C.
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Begin Trace Mode for Comment # 28.
#1. To: Tooconservative (#0)
So The National Review likes Kethledge? Is that an endorsement anyone would want?
And the establishment hacks that are pushing Kavanagh? You think that is a more desirable group to listen to? I don't. Kethledge is hardcore on the Second, just like Scalia. Exactly like Scalia. Except he has had his own CCW and a Glock handgun for self-defense for 10 years. You think Kavanagh is that connected to the Second Amendment? And Kethledge repudiates Scalia's weakness on Chevron deference explicitly, exactly as Gorsuch does. It is a vital area of judicial doctrine that must be addressed, along with the district courts running wild with nationwide injunctions against legitimate executive authority. This former clerk of Scalia's and Kethledge's does have some personal interest in seeing Kethledge elevated because then his resume could read "clerked for two notable Supreme Court justices". I think his emphasis on Kethledge being very strong on the Second and just as strongly against Chevron deference are very persuasive and hit the two most salient reasons why conservatives should want him on the Court.
That doesn't make me feel better. If Scalia is an originalist and pro-gun, why did he support Heller? An individual right? So that means he'd have to impose limits. Which is why he wrote that the Constitution protects weapons that could be carried and were in common use. WHAT?? Where does the second amendment say that? Over even imply it? Just the opposite -- it refers to a militia. Well, there's some circular reasoning for you. Every AR-15 owner I know (and many I don't) would love to have a full-auto switch option on their rifle. You can bet your ass that full-auto AR-15's would be "in common use". But the government bans full auto, so how can they ever BE in common use?
Your line of argument is foolish. You diminish the Second Amendment as an inherent right to self-defense by individuals, not by bodies of citizens called out for service by the local or federal government. The original militias in this country were those of men carrying guns to protect themselves and enforce order against bandits or robbers or hostile Indians or Brits trying to stir up trouble. They owned their own weapons and were almost entirely volunteers. This establishes the "militia" as a voluntaryist group exercising their right to self-defense by knife/sword/firearm for their own personal defense and for the defense of their communities and their nation. Maybe you need to give what Kethledge is saying about the meaning of the Constitution and fundamental federal laws and what they meant to the people of the era when they were enacted. If the laws are outdated, it is up to Congress, not the Court, to fix them. This sort of thing is the very essence of originalism.
You're describing the original "posse" -- a group of men conscripted by the sheriff under the authority of posse comitatus. A state militia was well-regulated, had officers appointed by the state, and were under the command of the Governor. "If the laws are outdated, it is up to Congress, not the Court, to fix them." I agree. Which is why the Heller court should have refused to hear the case, given that Mr. Heller was a D.C. resident and had no state constitution protecting his individual right to keep and bear arms. But no. The U.S. Supreme Court just had to weigh in with their awkward and embarrassing opinion.
It is a key, probably a vital, element that the ownership and availability of firearms was just as important for personal defense and defense of property and of neighbors as any obligation to protect the state or federal government. Would you similarly assert that residents of the District have no other constitutional protections in the Bill of Rights? Why stop with just the Second? Damn, I am glad no one on the Court (except Ruth Buzzi Ginsberg and her coven) thinks like you do.
I agree. Which is why most state constitutions read: "That every citizen has a right to bear arms in defense of himself and the state." The second amendment says nothing about self-defense. State constitutions do. Don't ignore that fact.
#30. To: misterwhite (#28)
(Edited)
That is the import of Heller. Heller clearly recognizes a larger inherent right to the protection of firearms outside the militia context. But it seems clear you don't understand that decision by Scalia beyond some general idea of its results.
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#2. To: misterwhite (#1)
So The National Review likes Kethledge? Is that an endorsement anyone would want?
#3. To: Tooconservative (#2)
Kethledge is hardcore on the Second, just like Scalia.
#7. To: misterwhite (#3)
WHAT?? Where does the second amendment say that? Over even imply it? Just the opposite -- it refers to a militia.
#23. To: Tooconservative (#7)
The original militias in this country were those of men carrying guns to protect themselves and enforce order against bandits or robbers or hostile Indians or Brits trying to stir up trouble.
#24. To: misterwhite (#23)
You're describing the original "posse" -- a group of men conscripted by the sheriff under the authority of posse comitatus. A state militia was well-regulated, had officers appointed by the state, and were under the command of the Governor.
I agree. Which is why the Heller court should have refused to hear the case, given that Mr. Heller was a D.C. resident and had no state constitution protecting his individual right to keep and bear arms. But no. The U.S. Supreme Court just had to weigh in with their awkward and embarrassing opinion.
#28. To: Tooconservative (#24)
It is a key, probably a vital, element that the ownership and availability of firearms was just as important for personal defense and defense of property and of neighbors as any obligation to protect the state or federal government.
Replies to Comment # 28. The second amendment says nothing about self-defense. State constitutions do. Don't ignore that fact.
End Trace Mode for Comment # 28.
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