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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: 3281
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 # 36.
#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?
Full-auto is a ridiculous goal. Go get your tax stamp if you want it so damned bad. I know you spent plenty more than the permit fee on your gun, just apply for the permit and establish your trust. I think Kethledge, a CCW guy, could be a vital voice in expanding CCW nationally so CCW permit holders could travel from state to state.
No,it isn't. The typical solder of today carries a rifle with both semi and auto fire capabilities,so the typical citizen of today has a Constitutional RIGHT to also own one,even if they are practically useless for anything but shooting up the countryside.
I'm a lot more interested in interstate CCW than I am in full-auto guns for all buyers. If we could get interstate CCW and unlicensed suppressors, those would be far greater victories than some futile quest to give every gun buyer even more lethal capabilities than Stephen Paddock used to shoot up that Las Vegas concert with 851 injured and 58 dead. If you want to sell the idea that we want every gun in America to be a full-auto, good luck with that. You and misterwhite are isolated radicals on this.
Well,since I have zero interest in owning any full-auto weapon that isn't a BAR,MP38/40, or M3 grease gun for historical purposes,I'd have to agree with you on that. Especially since thanks to Clinton ordering remaining stocks still in inventory taken out to sea and dumped in very deer water means there is no way I would ever be able to justify spending enough money to buy a nice example. The days of 400 dollar M3's or 2500 dollar BAR's is OVER and never coming back. I wouldn't have the modern stuff like a Uzi if you gave it to me unless I could sell it right away and put the money to good use. If you want to sell the idea that we want every gun in America to be a full-auto, good luck with that. WHERE have *I* ever stated any such thing? I don't even like the damn things. My preference is for bolt action rifles.
Guns with the hardened quality of those kinds of battle rifles are not cheap. You really don't want to do full-auto with $500 AR-15 Frankenguns. National CCW and permitless suppressors offer a lot more advance in the fight for gun rights than full-auto ever will. I don't think you could get NRA to endorse a goal of universal access to full-auto guns. I don't think that even GOA or JPFO or JBS would go quite that far on full-auto. No one is really suffering a lack of full-auto. There are plenty of them around. Get the $300 tax stamp and stop bitching about it. Back in the Thirties when they passed that $300 permit fee, a dollar was worth at least 10 times as much. So if they had adjusted for inflation, it would be at least a $3,000 fee for a federal full-auto permit today. But they have kept it the same because that is what the law authorizes. And Congress has never revisited it to raise the fee. The $300 was so high that it virtually outlawed legal full-auto back in the Thirties. Only very rich people could afford the permit fee. And that was by design. But since the law authorizes only a $300 permit fee with no provision to increase it due to inflation, today you can get the permit at a price even most working joes can afford if they really want it. If we legalize full-auto, the libs will finally be correct that machine guns are legal for all. All their hysteria over "assault guns" would suddenly be a lot more accurate. And when the first big full-auto massacre occurs, they'll be ready. Universal full-auto is a bad goal for American gunowners.
Dollar wise, I don't think the price of the permit is what prevents many from acquiring full auto. I think it is primarily two factors: 1. The dollar cost of the weapons themselves. Since the legislation was passed preventing newly manufactured full auto's, the supply has shrunk, and consequently the price of limited supply has gone up. 2. Many people that can afford it, simply do not want the hassle of the paper work; being on a "registered list "; and last I heard, once on that list, the Feds have the right to come to your home and do an inspection anytime they want! I had a cop friend that thought about getting a Thompson .45 for fun, then changed his mind. He said for fun, it just was not worth the expense and hassle. He said that if the SHTF, there would be plenty full suto's laying around to pick up for free. Made sense.
There are no replies to Comment # 36. End Trace Mode for Comment # 36.
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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.
#5. To: misterwhite (#3)
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".
#6. To: Tooconservative (#5)
Full-auto is a ridiculous goal.
#9. To: sneakypete (#6)
No,it isn't. The typical solder of today carries a rifle with both semi and auto fire capabilities,so the typical citizen of today has a Constitutional RIGHT to also own one,even if they are practically useless for anything but shooting up the countryside.
#11. To: Tooconservative (#9)
I'm a lot more interested in interstate CCW than I am in full-auto guns for all buyers.
#13. To: sneakypete (#11)
Well,since I have zero interest in owning any full-auto weapon that isn't a BAR,MP38/40, or M3 grease gun for historical purposes,I'd have to agree with you on that.
#36. To: Tooconservative, sneakypete (#13)
" Back in the Thirties when they passed that $300 permit fee, a dollar was worth at least 10 times as much. So if they had adjusted for inflation, it would be at least a $3,000 fee for a federal full-auto permit today. "
Replies to Comment # 36.
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