Through all the rhetoric and gnashing of teeth by those on the Left following the announcement of Justice Anthony Kennedy’s retirement from the Supreme Court, something critical is getting lost in the discussion.
Is anyone anywhere taking a closer look at what Kennedy’s retirement might mean for any modicum of gun reform?
It isn’t totally absent, but it’s certainly a much less talked about topic when it comes to the tendencies of whoever Trump might nominate to replace Kennedy.
Where does gun reform ‘fit’ into this discussion?
We know we have a gun violence epidemic going on in this country.
We know gun reform ideologies and methodologies, both pro and con, are polarizing.
So, it’s only logical to ask whether gun reform efforts will take on a more pro-gun bent when a new Justice is seated. Odds are they will – especially given Trump’s rhetoric on guns.
Perhaps the first thing we should be asking, though, is where the Supreme Court stands on guns right now with Kennedy on that Bench? You might be a bit surprised.
Lower Federal courts, at a rate of around 90%, have historically upheld gun restrictions since the landmark Supreme Court rulings of District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010.
Since the McDonald v. Chicago ruling, the Supreme Court has consistently declined to review or hear challenges to gun law appeals from those lower courts. That means the NRA and pro-gun hoplophiliacs have been stymied in the judicial arena for the most part when it comes to their guns everywhere agenda – this despite the rhetoric to the contrary.
According to Wikipedia, Kennedy’s record, with the exception of the two landmark rulings that legitimized an individual right to keep and bear arms, is unclear with regard to gun control.
There’s a reason for that, actually.
Back in December, 2015 The Atlantic published an article with the headline Have the Justices Gone Gun-Shy?
The Court does not identify how justices vote when granting or denying certiorari petitions, but four votes are required to grant a case. We can therefore logically conclude that at least two justices from the Heller/McDonald majority have refused to take a single Second Amendment case in the last five years.
Given the lack of transparency regarding granting or denying certiorari petitions, we’ll never know with 100% certainty if Kennedy was one of those two justices who refused Second Amendment cases. It’s likely he was, though.
That’s important because the Supreme Court Justice in waiting, whoever that might be, will probably not go that same route when presented with a certiorari petition challenging a gun law.
The NRA and their hoplophiliac ilk must be foaming at the mouth in anticipation of things to come. After all, the NRA has arguably already been successful in rewriting the Second Amendment in the ‘court of public opinion’. All that remains now is to do so in the Judiciary – a likely scenario with a more gun friendly Supreme Court majority.
Now fast forward to Justice Ruth Bader-Ginsburg or ‘Notorious RBG’ as some refer to her. This venerable Justice is 85 years young.
If ‘Notorious RBG’ decides to retire, or, heaven forbid, she passes away, Trump will have a third Supreme Court Justice Appointment given to him. That’ll cement an even more conservative and gun friendly Supreme Court for at least a generation or more.
Might that also result in an ‘unfettered’ Second Amendment? The NRA and their hoplophiliac ilk are certainly hoping it will.
Truth is, an ‘unfettered’ Second Amendment may just become Justice Kennedy’s ‘legacy’ even though he won’t be on the Bench if, or when, it happens.
I wonder if he’s even thought about that – or if he even cares.
My two cents.
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