Trump's Supreme Court Appointments on the Second Amendment

Implications for Property Rights and Public Policy

Copyright Lucas J. Mather, November 2020
All Rights Reserved

Introduction

President Trump has appointed the three newest members of the Supreme Court [as of the time of this writing, November 2020], each of whom has a judicial record on the Second Amendment. Justice Gorsuch has joined both strongly worded Second Amendment statements and opinions. And Justices Kavanaugh and Barrett have each written a significant Second Amendment opinion when they were judges on the lower courts. I argue here that taken together, the Trump justices form a coherent whole on the Second Amendment that likely has public policy implications for property rights of gun owners and would-be gun owners, including possibly felons, who face possible criminal penalties for the property they own, possess, carry, or travel with in many jurisdictions. This paper proceeds according to the seniority of each Trump Justice.¹ It provides a précis of each Justice’s approach to the Second Amendment in their judicial record. The implications for property rights will be fleshed out as we go, and summarized at the end. The result is that Trump’s appointments on the Second Amendment form a likely bulwark against state action regulating private property of firearm owners and would-be owners, including felons, as they possess, own, carry, and travel with their firearm property in many jurisdictions.

The Supreme Court’s twin rulings in District of Columbia v. Heller² and McDonald v. Chicago³ created quite a splash in terms of the individual right to keep and bear arms for self-defense. Each case upheld that individual right to keep and bear firearm property against government regulation to the contrary, against the states’ regulation to the contrary in McDonald and against the federal government regulation to the contrary in Heller. In terms of the plethora of public policy questions regarding the ownership, possession, and use of firearm property, the ripples from that splash have reverberated for the past decade in the lower federal courts, with very little correction or guidance from the Supreme Court on how the Constitution ought to resolve those public policy questions.⁴ The placement of the last three justices on the Court opens the likelihood that that situation will change.

Justice Gorsuch on the Second Amendment

Of the three Trump justices, Justice Gorsuch is the only one of the three who came to the Supreme Court without a substantial and clear record specifically on the Second Amendment. He still has never authored a Second Amendment opinion. Nevertheless, since he has come to the Court, he has indicated fairly clearly how he likely understands and approaches a Second Amendment case through the statements or opinions that he has joined.

For example, during the past decade since the Court decided McDonald, Justice Thomas has written dissents to denials of certiorari of Second Amendment cases, urging the Court to get back into the Second Amendment action by providing Constitutional guidance for some of these property regulation disputes involving state regulation of firearm property owners. These dissenting statements are substantial judicial pieces in their own right.⁵ Justice Gorsuch joined one of most recent of those in 2018.⁶ (Kavanaugh joined another in 2020). In addition, Justice Gorsuch joined a significant Second Amendment dissenting opinion authored by Justice Alito, the plurality writer in one of the major Second Amendment opinions in American history. Each of these should be discussed. We proceed chronologically to explore what each piece likely means in terms of how Justice Gorsuch approaches the Second Amendment. Public policy issues regarding firearm property regulation will be broached as we proceed.

In 2018, a Second Amendment lawsuit regarding California firearm property regulation was turned away from the Supreme Court, and Justice Thomas was not happy about that. Justice Gorsuch joined him in his unhappiness, signing his name to Thomas’s strongly worded statement that the Supreme Court made an error in rejecting the case. The case the Court rejected was Peruta v. California.

Peruta v. California (denial of certiorari)

A man in San Diego county had applied for a conceal carry license. The state of California has what’s called a “may issue” conceal carry regime as opposed to what most states have, a “shall issue” conceal carry regime.⁷ The similarity between the two types of regimes is that the state mandates a license before one can lawfully conceal their firearm property upon their person for self defense in public. Application is made to the chief law enforcement officer of the applicant’s jurisdiction: the chief of police or county sheriff. The difference between the two is that “shall issue” states treat such application in a perfunctory manner much the same as the state issues a driver’s license: there is no practical room for discrimination in the regime. If the applicant meets certain criteria set ahead of time by law, the licensing official must issue the license. In a “may issue” state like California, however, the licensing official has enormous discretion not dictated ahead of time by law. The official can use that discretion to discriminate against applicants he doesn’t like under the color of law, and there’s not much, practically, that an applicant can do about it. He may issue. He may not, if he doesn’t want to. “May issue” states require a “good cause,” but what counts as a “good” cause is not objectively defined ahead of time by law—it’s up to the personal proclivities of each different issuing official at the time, or even after, each application. The issuing official could decide he personally didn’t like the applicant’s tie or haircut, as long as the way he vaguely put the denial was that the applicant did not have “good” cause.

Self-defense from immoral crime⁸ is important to many Americans who are denied application in “may issue” jurisdictions. There is nothing such an applicant can do, practically, to protect herself in public with a firearm while remaining a law-abiding citizen or resident. Let’s say such a person really is in danger, absent the police, in public, and such a person is well-trained in firearms for effective self-defense. Without that license, she could not lawfully avail herself of her firearm property to defend her life or her body from serious physical harm. Instead, if she did so avail herself of that property, even if she was effective, well-trained, and safe with the firearm property, she would be a felon, in the same class of criminal element as the person trying to rob, murder, or rape her. Effective, safe, trained self-defense with a firearm—paradigmatic morally innocent conduct—in this case would be a felony in California, on par with rape and murder in so far as a felony is concerned.

Mr. Peruta and others challenged the constitutionality of that “may issue” regime as applied to him when he applied for and was denied a conceal carry permit for his firearm property in public for self-defense. He won initially at the Ninth Circuit,⁹ which briefly ushered in a period of “shall issue” law in San Diego before that panel decision was overturned en banc. The en banc panel returned California to the prior “may issue” status quo which criminalized self-defense in public unless the chief law enforcement officer of the jurisdiction happened to like you enough to grant you the right of self defense with firearm property in public.

This is what Justice Thomas said, joined by Gorsuch. He intimated that it was curious that the state of California’s penal code prohibited any kind of carry of arms for self-defense even though the federal constitution seemed, on its face, to protect “the right of the people,” understood by the Supreme Court precedent as an individual’s right, “to bear arms” for self-defense. Peruta sued under 42 U.S.C. § 1983 which allows suits in federal court against governments for redress of civil rights violations. Thomas, joined by Gorsuch, noted that the original Ninth Circuit panel, using a history and tradition approach gleaned from the Supreme Court’s Second Amendment precedent, struck down the California discretionary “may issue” “good cause” requirement when combined with an otherwise prohibition on open carry (not concealed carry). Thomas chafed at the en banc’s reversal of that ruling, calling their approach to the heart of the issue “indefensible.”¹⁰

“The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole…nor was the Ninth Circuit’s approach justified by the history of this litigation. The District Court emphasized that ‘the heart of the parties’ dispute’ is whether the Second Amendment protects ‘the right to carry a loaded handgun in public, either openly or in a concealed manner…As the Ninth Circuit panel pointed out, ‘[petitioners] argue that the San Diego County policy in light of the California licensing scheme as a whole violates the Second Amendment because it precludes a responsible, law-abiding citizen from carrying a weapon in public for the purpose of lawful self-defense in any manner…Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result.”¹¹

In a particularly memorable line, Justice Gorsuch joined Justice Thomas in his skepticism about Constitutional pedigree of the apparent anti-self-defense bias exhibited by the en banc Ninth Circuit in this case. “I find it extremely improbable that the Framers understood the Second Amendment to protect little more that carrying a gun from the bedroom to the kitchen,”¹² Gorsuch joined Thomas in saying. Quoting the late Justice Ginsburg’s dissent in Muscarello v. United States,¹³ Gorsuch joined Thomas in noting that the term “bear” when used of “a firearm” most naturally implied “carries the weapon on or about his person ‘for the purpose of being armed and ready for offensive or defensive action in case of a conflict.”¹⁴ Of course, the lawful use here in this context would be restricted to self-defense, which Gorsuch joined Thomas in stating was the “core purpose” and “‘the central component of the [Second Amendment] right itself.’”¹⁵ The upshot of this dissent was the judgment of Gorsuch and Thomas that “[t]he Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right…The Constitution does not rank certain rights above others,” Gorsuch joined Thomas in saying, “and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights.” What the Justices meant there was that the jurisprudence of the Second Amendment was much less developed than other constitutional rights.

“The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U.S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.”¹⁶

The dissent ended on an equity issue. Justice Thomas, joined by Gorsuch, appeared to offer an explanation for the discrepancy just in terms of the human condition—the tendency of better off humans to become inured and ill-tuned to the expressed needs of those less fortunate. Gorsuch joined Thomas in saying,

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”¹⁷

New York Rifle & Pistol Case

This past year, the Court issued only the fourth opinion on a Second Amendment case this century. The case was New York State Rifle & Pistol Association, Inc. v. City of New York.¹⁸ That case involved a challenge by New York City residents to New York City’s onerous and unconstitutional (the City acknowledged) property regulations of firearms. Particularly at issue were the regulations on the lawful transportation of firearm property not only within the City but to property owned by the resident outside of the City or for otherwise lawful purposes outside of the City,¹⁹ such as a shooting range in Pennsylvania or Connecticut. In fact, only seven gun ranges within the five boroughs were lawful destinations for firearm property transport and six of the seven were open only to private membership, not to the public. The only public range was closed for the duration of the appellate proceedings, and that one was located in north Bronx.²⁰

In order to win the case on mootness, the City, after defending the constitutionality of their draconian regulatory scheme up through the circuit appellate review (which they won), all of a sudden changed the challenged laws after the Supreme Court granted certiorari. Tellingly, the City admitted that their prior law that they had defended all the way through the Circuit Court of Appeals as necessary for “public safety,” admitted that the City was no less safe without the challenged law.²¹

There is some speculation, felt by at least some of the Justices, that the result—a short, per curiam opinion holding that the case was moot—may have appeared to the public to be the result of bullying of the Supreme Court by Democratic senators.²² In a stinging 31-page dissenting opinion by Justice Alito, joined by Justice Gorsuch, they would have held that the case was wrongly decided as moot because a case is moot only if there is no further relief possible. Gorsuch joined Justice Alito in identifying two issues where the plaintiffs still stood in need of relief from the harm inflicted upon them by the City: prospective relief against abuses of the vague language in the new regulatory firearm property transport scheme,²³ in doing so clarifying the standard of review for future Second Amendment cases, and allowing attorney’s fees and other damages to the plaintiffs as the prevailing party.²⁴

In terms of the abuses of the vague language in the new ordinances that rendered the case moot, Justice Gorsuch joined Alito in stating that these new regulations were ripe for enforcement irregularities and abuse due to the unclarity of the words. The new regulations allowed transporting the firearm property outside the City to a range or second home, but only if the transportation occurred “directly” and in a manner “continuously and uninterrupted.” Justice Alito wondered aloud whether bathroom breaks would be a criminal offense in such a situation, or stopping for lunch, gas, or coffee. It was up to the discretion of the enforcing officer. Given that an arrest, not even a conviction, just an arrest, could be grounds for losing a New York City “premises license”²⁵ which was the sole legal instrument by which one could have the firearm in New York City in the first place, knowing whether you could stop to pee on the way to the range was a matter of knowing whether you could continue to exercise the fundamental right to self-defense in the home as secured by the Supreme Court’s precedent on the matter, if stopping to pee could get you arrested under vague language of the new regulatory scheme. This was absurd on Justice Alito’s view, and for Justice Gorsuch, who joined Alito’s opinion. It chilled the right to travel unimpeded, “unrestricted” with one’s lawful property. This was otherwise moral and lawful transport of firearm property criminalized for reasons the City acknowledged made no significant difference to public safety.

In terms of clarifying or reiterating the standard of review for Second Amendment cases from Supreme Court precedent, Justice Gorsuch joined Justice Alito that the standard of review was a history and tradition test of government regulation. Those longstanding regulations from history were presumptively Constitutional, whereas those that did not have historical pedigree were suspect. A part of the “core” of the right to keep and bears for self-defense would be anything “concomitant”²⁶ to that right, such as the right to travel with the firearm property for repair, maintenance, or training in how to safely and effectively operate the firearm for its moral and lawful intended purposes.²⁷ No history and tradition supported New York’s regulatory scheme that chilled these rights to travel with the firearm property to these other locations for lawful purposes unrestricted by concerns about bathroom breaks and coffee stops. “[The City] points to no evidence of laws in force around the time of the adoption of the Second Amendment that prevented gun owners from practicing outside city limits,”²⁸ Alito said, joined by Gorsuch.

“History provides no support for a restriction of this type. The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted…with no serious probing. And once we granted review…the City’s public safety concerns evaporated.”²⁹

In other words, Justice Gorsuch’s view is that history and tradition is the proper standard of review of challenged government regulations of firearms. Something far more substantial than a de facto rational basis test or more objective and determinate than weak intermediate scrutiny is appropriate for the resolution of Second Amendment claims against the government regulations. Self-defense tools in the form of firearm property rights—including concomitant rights like the right to travel unrestricted with those tools, that property—enjoy Constitutional protection against any regulations that are themselves not rooted in history and tradition.

Justice Kavanaugh on the Second Amendment

In contrast with Justice Gorsuch, Justice Kavanaugh has a more direct record on the Second Amendment because he has himself written two significant Second Amendment opinions. Additionally, like Justice Gorsuch has, he has as well joined one of the famous Thomas dissents to the denial of certiorari of a Second Amendment lower court decision.

We proceed chronologically with his judicial record. The first, most lengthy and telling Second Amendment opinion that Kavanaugh wrote was a dissent while he was a Circuit Court judge in the second appellate iteration of Heller v. District of Columbia (Heller II).³⁰

Heller v. District of Columbia (Heller II)

This Circuit Court decision upheld some of the newest challenged D.C. ordinances that came in the wake of the Supreme Court’s Heller I. Among these were a so-called “assault” rifle ban, a mandatory universal gun registration scheme, mandatory gun law (not gun safety) literacy tests for gun owners, and a so-called “high capacity” magazine ban on those ammunition feeding accessories that can hold 11 bullets or more in them. All but one of these ordinances was upheld. The Circuit Court used so-called “intermediate scrutiny” in the two-judge majority panel opinion, while then-Judge Kavanaugh (at the time a judge, not a justice) would have struck down all but one of them under a different legal test than the majority used. Only the magazine ban would Kavanaugh have remanded back for further factual development.

The point of disagreement between Kavanaugh and the majority was the legal test used for Second Amendment cases, according to Kavanaugh. The majority had used an “interest balancing” test that turned the judge into a quasi-legislator, inviting the judge to inject her own subjective policy preferences into the law. For Kavanaugh, that test was utterly repulsive to the separation of powers.³¹ By contrast, Kavanaugh tried to be faithful to his model of a judge as “umpire,” one who calls balls and strikes based on objective criteria set beforehand. The appropriate legal test for Second Amendment cases is history and tradition, from Supreme Court precedent. The Heller I Supreme Court precedent rejected an interest-balancing approach by analogy to a set of 1997 and 1994 Supreme Court First Amendment cases called Turner Broadcasting. Rather, the Heller I majority

“emphasized the role of history and tradition; it rejected not only balancing but also examination of costs and benefits; it disclaimed the need for difficult empirical judgments; it specifically rejected Justice Breyer’s approach, which was a form of intermediate scrutiny as applied in Turner Broadcasting; and it prospectively blessed certain laws for reasons that could be (and were) explained only by history and tradition, not by analysis under a heightened scrutiny test. It is ironic…that Justice Breyer’s dissent explicitly advocated an approach based on Turner Broadcasting; that the Heller majority flatly rejected that Turner Broadcasting approach; and that the majority opinion here nonetheless turns around and relies expressly, and repeatedly on Turner Broadcasting…Strict and intermediate scrutiny are balancing tests and thus are necessarily encompassed by Heller’s more general rejection of balancing.”³²

A couple of pages later, Judge Kavanaugh said that though

“strict scrutiny [in some First Amendment cases] in particular places a heavy thumb on the scale in favor of the individual right in question, meaning the balance is often struck against the government…Heller and McDonald rejected the use of balancing tests—including, therefore, strict or intermediate scrutiny—in fleshing out the scope of the Second Amendment right.”³³

So Kavanaugh rejected the analogy between the legal test for determining Second Amendment rights on the one hand and substantive due process, equal protection, and some First Amendment jurisprudence that use heightened scrutiny on the other hand. These heightened scrutiny legal tests are what Kavanaugh calls “interest balancing.” Second Amendment Supreme Court precedent instead mandates or favors a test of the challenged government regulation of firearm property by a test of history and tradition. In this way, determining the Second Amendment right, for Kavanaugh, is more akin to determining the rights guaranteed by “the Jury Trial Clause, the Establishment Clause, the Self- Incrimination Clause, the Cruel and Unusual Punishments Clause, or the Habeas Corpus Clause, to name a few.”³⁴ The Court typically does not use interest balancing or heightened scrutiny in those types of cases. “The Supreme Court struck down D.C.’s handgun ban [in Heller I] because handguns have not traditionally been banned and are in common use by law-abiding citizens, not because the ban failed to serve an important government interest and thus failed the intermediate scrutiny test.”³⁵

This is why both D.C.’s universal gun registration scheme and its “assault” rifle ban are deflated by the pin of the Second Amendment. Neither has the historical and traditional pedigree that would allow them to survive challenge under the Second Amendment. Under Heller I, D.C.’s challenged ordinance was a ban on ownership, even for police officers like the plaintiff Dick Heller in that case, of a class of commonly used firearms that were not traditionally banned in the United States.

“As to the ban on handguns, for example, the Supreme Court in Heller [I] never asked whether the law was narrowly tailored to serve a compelling government interest (strict scrutiny) or substantially related to an important government interest (intermediate scrutiny). If the Supreme Court had meant to adopt one of those tests, it could have said so in Heller and measured D.C.’s handgun ban against the relevant standard. But the Court did not do so; it instead determined that handguns had not been traditionally banned and were in common use—and thus D.C.’s handgun ban was unconstitutional.”³⁶

So applied to the “assault” rifle ban, that same reasoning mandated the same result, for Kavanaugh. “Assault” rifles were defined cosmetically, that is, by how they look, referring to features of those semi-automatic rifles that either had a certain looking pistol grip that protruded conspicuously beneath the action, or a flash-hider muzzle device, or a stock that could be adjusted a few centimeters in either direction to accommodate different sized shoulders. Of course, semi-automatic firearms did not exist at the time of the founding. But then again, the First Amendment protects free speech that uses “modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a ‘search,’” so too “the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol.”³⁷

Here, semi-automatic rifles are distinguished from fully automatic machine guns. “Gun bans and gun regulations that are longstanding,” according to Kavanaugh, as he read precedent, “or…are sufficiently rooted in text, history, and tradition—are consistent with the Second Amendment individual right.”³⁸ Machine guns fall outside the Second Amendment right because they have been traditionally banned or regulated and are not in common use. D.C. tried to ban semi-automatics, however, which have been commercially available since 1903 and have been ever since then and continue to be in common use. “By contrast,” according to Kavanaugh, “full automatics were developed for the battlefield and were never in widespread civilian use in the United States” because they were almost immediately heavily regulated.³⁹ But the kicker, for Kavanaugh, is that

“[t]he vast majority of handguns today are semi-automatic. In Heller [I], the Supreme Court ruled that D.C.’s law banning handguns was unconstitutional…D.C. asks this Court to find that the Second Amendment protects semi-automatic handguns but not semi-automatic rifles. There is no basis in Heller for drawing a constitutional distinction between semi-automatic handguns and semi-automatic rifles.”⁴⁰

Kavanaugh noted an especially awkward fact for the majority was the fact that the so called “AR-15” semiautomatic rifle was the “precise weapon at issue in” Staples v. United States in 1994, where the Court noted then that that type of rifle “is in common use by law-abiding citizens and has traditionally been lawful to possess” and, in the language of Staples, “‘have been widely accepted as lawful possessions.’”⁴¹ For Judge Kavanaugh, then, “[t]he fundamental flaw in the majority opinion is that it cannot persuasively explain why semi-automatic handguns are constitutionally protected (as Heller [I] held) but semi-automatic rifles are not.”⁴² The public safety rationale fell flat, for Kavanaugh, because the protected category of handguns are used in 87% of violent crime, and thus would be the quintessential “assault weapon,”⁴³ yet remain protected as firearm property available to individuals. The rate of fire argument also didn’t pass muster, for Kavanaugh.

“Putting aside that the majority opinion’s data indicate that semiautomatics actually fire two-and-a-half times slower than automatics…the problem with the comparison is that semi-automatic rifles fire at the same general rate as semi-automatic handguns. And semi-automatic handguns are constitutionally protected under the Supreme Court’s decision in Heller [I]. So, the majority opinion cannot legitimately distinguish Heller on that basis.”⁴⁴

Similarly, the claimed offensive use of the rifles, as opposed to merely defensive use of the guns, didn’t impress Kavanaugh for the same reasons. Kavanaugh noted a logical point that the majority seemed to be missing in their apparent anti-self-defense bias. That point is this. Not everyone is equally physically strong. That’s the reason self-defense tools, or firearm property, are valued for self-preservation purposes by law-abiding, good citizens. Not everyone is as physically strong as their actual or would-be attacker. Weapons level the playing field in a self-defense scenario. An old lady can all of a sudden become equal to a group of men with the right self-defense tool. Quoting from the dissent of Heller I, Kavanaugh noted that “the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.”⁴⁵ What good would they do if they weren’t dangerous to the one attacking you? They’d be pretty useless as property, as a tool.

For all the same reasons of history and tradition, the universal gun registration regulation also failed under the Second Amendment. It has no basis in the history and tradition of firearm property regulation. Sure, sellers were required to be licensed, but not owners. Further, the militia registration requirements during the founding era are disanalogous to D.C.’s regulatory regime, according to Kavanaugh, because such regulations were in order to encourage not only gun ownership, but skill, among a certain class of men (18-45 years of age), the exact opposite goal D.C. had with its scheme, and not everyone, and not every gun was to be registered under the militia example. Those registration requirements are thus disanalogous and did not support D.C.’s universal gun registry, then, for Kavanaugh.⁴⁶

Rogers v. Grewal (denial of certiorari)

Rogers v. Grewal was another conceal carry firearms property rights case. Justice Kavanaugh joined another of Justice Thomas’s—the only one on the Court raised black in the segregated South—jeremiads against what he believed were the judicial abdications of the Second Amendment right to self-defense from violent crime absent police. Kavanaugh joined all but Part II of Thomas’s dissent from the denial of certiorari in this case. Part II was a historical analysis supporting Thomas’s contention that the right to public carry has historical pedigree rooted in the natural law tradition and should be enforced against state regulation to the contrary.

Similar to Peruta, at issue here were the inherently discriminatory “may issue”conceal carry regimes that were taken by plaintiffs to give inappropriate law-making authority to licensing officials who alone were empowered to find whether a law-abiding citizen had “good” enough cause to exercise a right to effective self-defense. Home defense is one thing. The home stays where the home is. But the self doesn’t always stay home. The self goes out in public. And if the right to keep and bear arms is at its core a right to self-defense, not merely home defense, it seems the right must somehow someway follow the self into the public sphere as a matter of Constitutional law.

What good is the right to self-defense when you have to leave it at home? Many victims of violent crime are attacked in public, not in the home.⁴⁷ Under these “may issue” conceal carry regimes, such selves are criminalized merely for being prepared with self-defense tools—their firearms property—to effectively repel violent crime. Law-abiding citizens are criminalized for paradigmatically morally innocent conduct: self-defense. There’s something off, here, for Justice Thomas, who was not joined by Kavanaugh here. The Court should be enforcing the rights that are in the Constitution against places like, for instance, New Jersey in this case. It’s not clear what exact reservations that Kavanaugh had with Thomas’s analysis, here. It’s likely that he thinks it is inappropriate to pull the trigger on the law-office history without hearing arguments from both sides.⁴⁸

Justice Thomas’ complaint was again that by not taking this case, the Second Amendment was rendered illegitimately unenforced against the will of popular majorities and factions that control legislative bodies hostile to the right to self-defense. “This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights,” Justice Kavanaugh joined Thomas in saying. “And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide justifiable need before seeking an abortion.”⁴⁹

The plaintiff in this case was a law-abiding citizen who services cash-dispensing machines in high crime areas. The official in charge of dispensing conceal carry licenses for his jurisdiction thought that the applicant/plaintiff should be criminally liable for innocent conduct: having his self-defense tools available for the moral purpose for which they were designed and that he was trained safely to handle, his firearm property, property properly designed for effectively repelling immorally violent crime. The official in charge of approving applications for these licenses decided that this man should be regarded as a criminal—the same category as an immorally violent criminal that would be trying to murder or rob him.⁵⁰ “With no ability to obtain a permit,” Justice Thomas lamented (joined by Kavanaugh), “petitioner is forced to operate his business in high-risk neighborhoods with no firearm for self-defense.”⁵¹

Again, the issue was the same as the one that had surfaced in Peruta regarding the apparent conflict between the plain text of the Second Amendment right to “bear” arms for self-defense and “New Jersey’s near total prohibition on carrying a firearm in public.”⁵² Such a matrix of laws inappropriately conflate the two aspects of the right to self-defense, “keeping” and “bearing” in the text of the Second Amendment. Quoting a lower court’s dissenting language, Thomas on his own said that “‘[t]o speak of “bearing” arms solely within one’s home…would conflate “bearing” with “keeping,” in derogation of [Heller’s] holding that the verbs codified distinct rights.’”⁵³

Kavanaugh joined Thomas in excoriating the use of interest balancing tests and heightened scrutiny as methods to determine the outcome of Second Amendment cases. “This approach raises numerous concerns. For one, the court of appeals’ test appears to be entirely made up.”⁵⁴ It would have been slightly awkward for Kavanaugh not to have joined Thomas on this point because Thomas here cites Kavanaugh’s analysis in Heller II as an example that got the legal test right.

The most damning evidence that this interest balancing legal standard is incorrect, for the Justices here, is that it is used by lower courts to yield results inconsistent with those found by Supreme Court precedent in Heller I.⁵⁵ And Kavanaugh again joined the dissent in Thomas’s Part III, at the end, where Thomas expressed confidence that the right to public carry firearm property for lawful purposes (effective self-defense) was protected by the Constitution, but that “States can impose restrictions on an individual’s right to bear arms consistent with historical limitations. ‘Some laws, however, broadly divest an individual of his Second Amendment rights’ altogether,”⁵⁶ an inappropriate outcome in Constitutional law. The public policy implication for firearm property rights is enormous: Kavanaugh joins Thomas in the view that “[t]he majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a [“good” cause discriminatory] restriction, which amounts to a ‘[b]an on the ability of most citizens to exercise an enumerated right.’”⁵⁷

New York Rifle and Pistol Case Concurring Opinion

While Kavanaugh did not join Justice Alito’s dissenting opinion in New York State Rifle & Pistol Association, Inc. v. City of New York, his short two paragraph concurring opinion took the opportunity to express solidarity with one of the most important aspects of it: the standard of review that Justice Alito identified as flowing out of the Heller I and McDonald precedents. In his second paragraph, Justice Kavanaugh said that he shares “Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald” because he agrees “with Justice Alito’s general analysis of Heller and McDonald,”⁵⁸ by which he probably meant the history and tradition standard of review in lieu of interest balancing tests. He went so far as to identify himself with a likely four member panel necessary for granting certiorari in future Second Amendment challenges. His first paragraph expressed his agreement with the per curiam opinion, which for all we know he may have actually written, that the plaintiff’s claims were moot in light of the City’s change to the challenged firearm property transportation regulatory scheme. He thought that the new claims should be addressed in the first instance by the lower courts. Contrary to Alito (joined by Gorsuch, recall), he said nothing about the issue of recovering attorney’s fees for the plaintiffs.

Justice Barrett on the Second Amendment

Justice Amy Barrett is of course the newest member of the Supreme Court [as of this writing, November 2020]. She served for a much shorter time on the Circuit Court of Appeals than either of Trump’s first two Supreme Court appointments. However, even in her short time as a federal circuit judge, she happened to be assigned to a Second Amendment case, and so she had an opportunity to weigh in on the standard of review and how the Constitution impacted that particular government regulation of firearm property.

Kanter v. Barr

The case was Kanter v. Barr.⁵⁹ It involved a felon who wanted a gun for self-defense. The moral question presented was whether non-violent felons have experienced what then-Judge Barrett called “civil death,”⁶⁰ a civil non-existence, such that they don’t have a right to self-preservation or self-defense. The legal question was whether the government laws regulating firearm property ownership failed under Second Amendment challenge as those laws applied to this particular person, Ricky Kanter.

Kanter was convicted of mail fraud, a felony, many years ago for defrauding Medicare. It was a non-violent but serious felony involving hundreds of thousands of dollars that he pilfered from government coffers using the mail. It involved misrepresenting shoe inserts as approved by Medicare when they weren’t. By statute, he is falls into a category of prohibited persons, persons who cannot lawfully possess or own a firearm for any reason. Unlike non-prohibited persons who have not experienced “civil death,” Kanter is prohibited for life from defending his life from murder or defending his body from serious bodily injury with a firearm. He is dispossessed of property designed for self-defense.

Barrett found herself in a situation where, although there had been precedent on this question in other circuits, it was a fresh issue in hers at the time. Additionally, the Supreme Court did not have precedent on this exact issue. So, though she would ordinarily feel bound by precedent, there was none that directly applied to this case. She was free to consider a major Constitutional Amendment with fresh eyes. And this is what she would have found (she was in dissent).

The majority upheld the government prohibition on felons possessing arms, whether dangerous or not, with little elbow grease. The panel majority there applied interest balancing and a form of heightened scrutiny they claimed was intermediate,⁶¹ and found that the important government interest in protecting public safety (“keeping firearms away from those convicted of serious crimes”⁶² because “such individuals are more likely to abuse firearms” and because “this ‘bright line categorical approach…allows for uniform application and ease of administration.’”⁶³) was substantially related to this law.

Justice Barrett had a very different take on how to approach and to resolve this case. Her take on Supreme Court precedent was that the standard of review, the legal test for whether the regulation survives challenge, is not interest balancing but a history and traditions test. All three of Trump’s appointments to the Supreme Court seem to believe that this is the correct standard of review, the correct legal test for how to resolve a Second Amendment challenge to government regulation of firearm property.

This legal test begins her first sentence: “History is consistent with common sense,” she began. “It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.”⁶⁴ That finding right there was enough to strike down the law as applied to Kanter, who was not dangerous.

“[These statutes] would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and nonviolent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly…Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”⁶⁵

The equity issue she pointed out with regard to standing did some heavy lifting.

“It is one thing to say that certain weapons or activities fall outside the scope of the right….It is another thing to say that certain people fall outside the Amendment’s scope. Arms and activities would always be in or out. But a person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status. No state action would be required. To be sure, such a person could possess a gun as a matter of legislative grace. But he would lack standing to assert constitutional claims that other citizens could assert…That is an unusual way of thinking about rights. In other contexts that involve loss of a right,the deprivation occurs because of state action…”⁶⁶

But she didn’t think this “scope of the right” approach was the correct application of Supreme Court precedent. “In addition to being analytically awkward, the ‘scope of the right’ approach is at odds with Heller itself,”⁶⁷ Barrett said. “There, the Court interpreted the word ‘people’ as referring to ‘all Americans.’…Neither felons nor the mentally ill are categorically excluded from our national community.”⁶⁸

As a result of this methodological move, she began by treating Kanter as if he had not experienced civil death—he was long out of prison—and therefore had standing to sue as someone who was part of the national community who has Second Amendment rights. The question for Barrett then became whether history and tradition justified dispossessing Kanter of his own firearm property. She found that it did not, because history only showed that regulations preventing violent people from being armed had the historical pedigree necessary for consistency with the Second Amendment. “The upshot of this history for present purposes is that the consequences of a felony conviction were not as categorically severe as the governments suggest…civil death applied exclusively to life sentences…Felons serving a term of years,” Barrett argued, “did not suffer civil death; their rights were suspended but not destroyed.” She continued:

“Those who ratified the Second Amendment would not have assumed that a free man, previously convicted, lived in a society without any rights and without the protection of law…Heller, however, expressly rejects the argument that the Second Amendment protects a purely civic right…It squarely holds that ‘the Second Amendment confer[s] an individual right to keep and bear arms’…and it emphasizes that the Second Amendment is rooted in the individual’s right to defend himself—not in his right to serve in a well-regulated militia.”⁶⁹

And so in this way, President Trump’s last appointment to the Supreme Court addressed the Second Amendment from an equity standpoint, consistent with what she took to be the true history and traditions test. She would have found that non-violent felons who have served their sentences and returned to society are full-members of the class of bearers of Constitutional (not merely civic) rights. Such people have a right to defend themselves with firearm property designed for the purpose, to pursue training in safety and effectiveness toward that end, and to acquire the necessary firearm property.

Conclusion: Public Policy Implication for Property Rights

The presidency of Donald Trump has been tumultuous, to say the least. But his appointments to the Supreme Court point to a brighter future for those concerned about morally incoherent, historically unjustified, and judicially unchecked governmental regulation of firearm property ownership, transportation, acquisition, use, and possession for lawful purposes in public. At the very least, there seems to be a likelihood that there will be the judicial will to enforce a history and traditions test back onto the recalcitrant lower courts, which might serve to resolve many circuit splits on these important public policy issues. Hopefully, the result is that more American people can enjoy and develop their right to effective self-defense from immoral violent crime. From a property rights perspective, it would be progress if more Americans could do so both in public and in private without the current fear that so many have that they themselves will be regarded as criminals for doing so. Such a principled push-back against the anti-self-defense-biased regulatory status quo in many jurisdictions might very well turn out to serve public safety even more effectively than before.

1. I refer to the three as the “Trump Justices” purely for ease of reference. Nothing else is implied by that reference.

2. District of Columbia v. Heller, 554 U.S. 570 (2008). I will sometimes refer to this case as Heller I to distinguish it from a later case with the same plaintiff involving different government regulations of firearm property.

3. McDonald v. City of Chicago, 561 U.S. 742 (2010).

4. Seth Smitherman, “Supreme Silence: A Decade of Second Amendment Litigation in the Circuits,” Federalist Society FedSoc Blog, 28 Oct. 2020, available here: https://fedsoc.org/commentary/fedsoc-blog/supreme-silence-a-decade-ofsecond-amendment-litigation-in-the-circuits .

5. See Jackson v. City & County of San Fransisco, 576 U.S. ___ (2015) (Thomas, J., dissenting from denial of certiorari, joined by Scalia, J.) regarding a local ordinance regulating firearm storage. The regulation was essentially the same type that was struck down in Heller, requiring that the property be inoperable for its intended, lawful purpose of self-defense in the home, regardless of whether children were present in the home. Available here: https://www.supremecourt.gov/opinions/14pdf/14-704_jiel.pdf . Also see Friedman v. City of Highland Park, Illinois, 577 U.S.___ (2015) (Thomas, J., dissenting from denial of certiorari, joined by Scalia, J.) regarding a taking of firearm property by a local ordinance which criminalized residents who owned property in the form of “firearms that millions of people commonly own for lawful purposes.” Available here: https://www.supremecourt.gov/opinions/15pdf/15-133_7l48.pdf .

6. Peruta v. California, 582 U.S. ___(2017) (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

7. See, for instance, Matt Valentine, “The Second Amendment Issue the Supreme Court Can’t Avoid,” (Politico: July 3, 2017), available at: https://www.politico.com/magazine/story/2017/07/03/the-second-amendment-issue-the-supremecourt-cant-avoid-215331 .

8. Immoral crime is immoral conduct that the law all across the United States regards as criminal, such as murder, armed robbery, rape (or the attempts, conspiracies, to engage in such conduct), etc., as opposed to crime that is not immoral in itself, such as possession of a magazine that can physically fit, due to the position of the spring, 11 bullets in it for otherwise lawful purposes such as recreation or self-defense, as opposed to only 10 bullets for those same purposes. Across the river in Arizona, law enforcement has no statutory or regulatory basis for inquiring how many bullets are in an individual’s pistol. It’s a non-issue from an Arizona law enforcement perspective because if one has a lawful use of 10 bullets, one more bullet makes no difference to the lawfulness of the conduct engaged in. But in California, at present, receiving such a magazine would be a crime, but not what I call an “immoral crime,” because such conduct would not be immoral in itself, like those classic violent crimes mentioned above. This California magazine law is pending en banc review (as of the writing of this, November 2020) in the Ninth Circuit at present in a case called Duncan v. Becerra, 970 F.3d 1133 (9th Cir, 2020), the three judge panel decision written by another Trump appointment to the federal appellate bench, Judge Kenneth Lee.

9. Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014).

10. Peruta v. California, 582 U.S. ___(2017) at 3 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

11. Peruta v. California, 582 U.S. ___(2017) at 3-4 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch,J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

12. Peruta v. California, 582 U.S. ___(2017) at 5 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

13. Peruta v. California, 582 U.S. ___(2017) at 5 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf , citing Muscarello v. United States, 524 U.S. 125 (1998) at 139-140 (Ginsburg, J, dissenting, joined by Rehnquist, CJ, Scalia and Souter, JJ).

14. Peruta v. California, 582 U.S. ___(2017) at 5 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

15. Peruta v. California, 582 U.S. ___(2017) at 5 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf , quoting District of Columbia v. Heller, 554 U.S. 570 (2008) at 599. Emphasis original to Heller and Thomas’ quote.

16. Peruta v. California, 582 U.S. ___(2017) at 7 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch,J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

17. Peruta v. California, 582 U.S. ___(2017) at 8 (Thomas, J., dissenting from denial of certiorari, joined by Gorsuch, J.). Available here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf .

18. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op). Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

19. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 1. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

20. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 7, 29, n. 12 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

21. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 11 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

22. Justice Alito, for instance. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 2-3 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf . Also see Jacob Sullum, “Alito Rightly Slams Five Democratic Senators for ‘Bullying’ the Supreme Court,” Reason Magazine, November 13, 2020. Available here : https://reason.com/2020/11/13/alito-rightly-slams-five-democratic-senators-for-bullying-the-supremecourt/?fbclid=IwAR1DU3MWIWgnFnH4ByqGrPHTsHKBqrMnYiJJDGlKZIMTk46oqgJMs5-v6V8 .

23. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 13 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

24. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 3-4, 15-22 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf

25. New York State Rifle & Pistol Assn v. City of New York, 140 S. Ct. 1525 (2020) at 1527 (Alito, J., dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B).

26. New York State Rifle & Pistol Assn v. City of New York, 140 S. Ct. 1525 (2020) at 1541 (Alito, J., dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B).

27. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 26 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

28. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 26 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

29. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 31 (Alito, J, dissenting, joined by Gorsuch, J, and by Thomas, J., except as to Part IV-B. Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

30. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1269 (Kavanaugh, J., dissenting).

31. See Lucas J. Mather, Individual Liberty and Separation of Powers in the Constitutional Statesmanship of Judge Brett Kavanaugh, Ph.D dissertation in Public Law & American Politics, Claremont Colleges, (Claremont, California: Proquest: 2020), pp. 308 – 330 for further development of the separation of powers concern in the context of Second Amendment jurisprudence.

32. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1280 (Kavanaugh, J., dissenting).

33. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1282 (Kavanaugh, J., dissenting).

34. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1283 (Kavanaugh, J., dissenting).

35. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1284 (Kavanaugh, J., dissenting).

36. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1273 (Kavanaugh, J., dissenting).

37. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1275 (Kavanaugh, J., dissenting).

38. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1285 (Kavanaugh, J., dissenting).

39. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1287 (Kavanaugh, J., dissenting).

40. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1286 (Kavanaugh, J., dissenting).

41. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1288 (Kavanaugh, J., dissenting) quoting Staples v. United States, 511 U.S. 600 (1994) at 611-612.

42. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1289 (Kavanaugh, J., dissenting).

43. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1290 (Kavanaugh, J., dissenting).

44. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1289 (Kavanaugh, J., dissenting).

45. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1289 (Kavanaugh, J., dissenting).

46. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) at 1291-1294 (Kavanaugh, J., dissenting). Kavanaugh was sure to say that “registration requirements of the kind enacted by D.C.” failed under the Second Amendment, not that any possible registration requirement would, at 1294.

47. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 7 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Kavanaugh did not join this part of Thomas’s dissent. Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

48. See for instance Lucas J. Mather, Individual Liberty and Separation of Powers in the Constitutional Statesmanship of Judge Brett Kavanaugh, Ph.D dissertation in Public Law & American Politics, Claremont Colleges, (Claremont, California: Proquest: 2020), chapter 5: Judge Kavanaugh on the power and duty of Judging in Article III at 200-246.

49. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 1 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

50. See footnote 8 for a brief discussion of the definition of “immoral” violent crime. Given that morally innocent self-defense sometimes has to be violent in order to effectively meet and repel the threat which is itself immorally violent, such a distinction is necessary in the context of newly created “crimes” that encompass such morally justifiable conduct simply because of the type of property that is used. As Justice Thomas said here on page 3 joined by Justice Kavanaugh, he reminded the reader that the Supreme Court’s Heller I precedent recognized that the positive law of the Constitution isn’t the first authority on the right to self-defense with a gun. Rather, the Amendment “‘codified a preexisting right,’” Kavanaugh joined Thomas in saying (quoting Heller I at 592). On page 8, Justice Kavanaugh does not join Thomas in apparently endorsing the particular law-office history account that Thomas provided in Part II arguing that this pre-existing right, while protected by the positive law, was not ultimately rooted in the positive law, but in the natural law, which justified the positive law. It was a moral right humans had by nature, by virtue of being human. That doesn’t mean that Kavanaugh doesn’t agree with it—he joined Thomas in saying that the Second Amendment codified a pre-existing right. It likely means that based on his view of the constraints Article III puts on the duty and power of judging, he probably would want to hear the arguments from both sides before signing on to any law-office historical account of the right. Of course, there was no oral argument in this case since cert was denied. See footnote 45.

51. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 2 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

52. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 2 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

53. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 7 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

54. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 4 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

55. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 4 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

56. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 17 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II). Available here: https://www.supremecourt.gov/opinions/19pdf/18-824_2cp3.pdf .

57. Rogers v. Grewal, 590 U.S. ___(2020) (slip op) at 18 (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J., except as to Part II), quoting Wrenn v. District of Columbia., 864 F.3d 650 (D.C. Cir. 2017) at 666, the appellate decision written by a George W. Bush appointee that struck down D.C.’s “may issue” regime and replaced it with a “shall issue” regime, effectively moving D.C. from a system akin to New Jersey, New York, and California to a system more like Texas or North Dakota. For a discussion of this case, see Lucas J. Mather, Individual Liberty and Separation of Powers in the Constitutional Statesmanship of Judge Brett Kavanaugh, Ph.D dissertation in Public Law & American Politics, Claremont Colleges, (Claremont, California: Proquest: 2020), pp. 325-328.

58. New York State Rifle & Pistol Association, Inc. v. City of New York, 590 U.S.___(2020) (slip op) at 1 (Kavanaugh, J., concurring). Available here: https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf .

59. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).

60. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 459 (Barrett, J., dissenting).

61. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 442, 447-448.

62. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 451.

63. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 440.

64. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 451 (Barrett, J., dissenting). Emphasis original.

65. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 451 (Barrett, J., dissenting).

66. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 452 (Barrett, J., dissenting).

67. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 453 (Barrett, J., dissenting).

68. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 453 (Barrett, J., dissenting).

69. Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) at 461, 463 (Barrett, J., dissenting).