“Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia's ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority's use of "intermediate scrutiny," saying an analysis "based on text, history, and tradition" is more consistent with the Supreme Court's Second Amendment precedents.
The D.C. "assault weapon" ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. "The list appears to be haphazard," Kavanaugh noted. "It bans certain semi-automatic rifles but not others —with no particular explanation or rationale for why some made the list and some did not." In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.”
If he ruthlessly defends the 2nd amendment, for 25 more years, I’ll be pleased
The D.C. "assault weapon" ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. "The list appears to be haphazard," Kavanaugh noted. "It bans certain semi-automatic rifles but not others —with no particular explanation or rationale for why some made the list and some did not." In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.”
If he ruthlessly defends the 2nd amendment, for 25 more years, I’ll be pleased
That doesn't "Read" like a 2nd Amendment defense to me. To ME,it reads like a bitch they didn't dot their "i's" and cross their "t's".
He was NOT complaining about their desire to limit American Constitutional Freedoms,he was bitching because it was a poorly-done job.
That doesn't "Read" like a 2nd Amendment defense to me. To ME,it reads like a bitch they didn't dot their "i's" and cross their "t's".
He was NOT complaining about their desire to limit American Constitutional Freedoms,he was bitching because it was a poorly-done job.
Kavanaugh DISSENT at 2-3, Heller II, 670 F.3d 1244 (DC Cir 10-7036, 2011)
In my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.
In Heller, the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller’s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.’s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)
D.C.’s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, “longstanding” gun regulations in the United States. Registration of all lawfully possessed guns – as distinct from licensing of gun owners or mandatory record-keeping by gun sellers – has not traditionally been required in the United States and even today remains highly unusual. Under Heller’s history- and tradition-based test, D.C.’s registration requirement is therefore unconstitutional.
I did not offer an opinion. I quoted Kavanaugh verbatim from Heller II at the D.C. Circuit Court. Here is the full Opinion of the Court and dissents. The Kavanaugh dissent starts at page 46 of the pdf.
For clarity, by hoping you were "right" I hoped the letter of constitutional intent will be THE criteria for all future decisions (instead of emotional whims, a squishy Anthony Kennedy "moderate" clone, or intimidation/influence by Leftist thought.)
For clarity, by hoping you were "right" I hoped the letter of constitutional intent will be THE criteria for all future decisions (instead of emotional whims, a squishy Anthony Kennedy "moderate" clone, or intimidation/influence by Leftist thought.)
Just for the record, I am not a grand supporter of original intent, but rather original meaning (Scalia was a proponent of this predominant branch of originalism).
What “originalism” is—and is not — Originalism, explains Scalia, is a “manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.” He clarifies that this is not synonymous with “strict constructionism”: “I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.”
Scalia also rejected the notion of “original intent.” As he explained,
You will sometimes hear [originalism] described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
I do the same with statutes, by the way, which is why I don't use legislative history. The words are the law. I think that's what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.
What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it’s hard to talk people out of it — the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.
This is the equivalent of, an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.
My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility.
As the Constitution says not a word about abortion, I believe five originalists on SCOTUS might overturn Roe finding a lack of federal jurisdiction, and return the issue to the states. Many here would not be happy with that result. They not only want the court to find that abortion is not constitutionally protected by an emanation from a penumbra, but they want the Court to find that abortion is prohibited by some constitutional provision emanating from a penumbra.
It is of no particular use to go back and find a 200 year old quote as to what some Framer may have intended. Nobody voted to ratify his intent. They voted to ratify the words themselves and the ordinary understanding of the words.
An example might be the 14th Amendment citizenship clause, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The words are clear enough to include anchor babies. The baby (regardless of the parents) is born in the U.S. and subject to the jurisdiction (laws) of the U.S. Whether the framer did, or did not, consider the question of anchor babies has no effect on the meaning of the words that were adopted. If it had an unintended consequence, amend it.
