Kennedy May Have Been the Weak Link

Dave Hardy noticed something in John Paul Stevens’ piece on writing his memoirs:

He said he had taken an extraordinary step in trying to head off the decision. Five weeks before Justice Antonin Scalia circulated his draft opinion for the majority, Justice Stevens sent around a draft of what he called his probable dissent. He said he could not recall ever having done anything like that.

“I thought I should give it every effort to switch the case before it was too late,” he said.

The effort failed. But Justice Stevens wrote that he helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for “some important changes” to Justice Scalia’s opinion. A passage in the opinion, which Justice Scalia had plainly added to secure a fifth vote, said the decision “should not be taken to cast doubt” on many kinds of gun control laws.

As Dave notes, this is pretty strong evidence that Kennedy was the weak member of the coalition, and his replacement by Justice Kavanaugh may tip the balance. Of course, that assumes there was only one weak link, not two. But this is very encouraging. It’s clear that Stevens targeted Kennedy to flip, and when he wouldn’t he at least convinced him to water down the ruling. Indeed, those passages have been latched on by lower courts and gun control advocates to render Heller and McDonald largely meaningless.

This is very good news, because at some point the Republicans will be out and the Dems in, and Dems are still competitive in dozens of states with currently reasonable gun laws. We really do need strong court protections for the Second Amendment, and we’re not going to get them through Congress.

18 thoughts on “Kennedy May Have Been the Weak Link”

  1. This was pretty much guessed at by pretty much everyone who watched the court for gun issues. We all knew that it was a delicate balance, with 4 pro-gun, 4 anti-gun, and Kennedy.

    That’s why no one wanted to grant cert on gun cases: The pro-gun side was afraid Kennedy would side with the anti-gun side, and the anti-gun side was afraid Kennedy would side with the pro-gun side.

    It only takes 4 justices to grant cert, but no one wanted to risk it all on a roll of the dice.

    Hopefully, now with what is presumably a solid 5 justice pro-gun majority, we can start looking forward to gun cases being taken up again by the Supreme Court.

  2. I think the most dangerous compromise-aspect of the Heller Ruling is upholding prohibitions on “Dangerous and Unusual” Weapons. Very Orwellian phrase that can be defined as losely as the winds of politics themselves. A true shame that Kennedy allowed for that.

    Everyone here has noticed how dramatically California has continuously, since 2014 in particular, tightened up and expanded it’s AWB. Massachusetts and New York have done the same, and NJ is soon to follow. Combine that with the 2018 Election Results, and we will be seeing at minimum, 6 to 8 more States with AWB’s that mirror the 2018 Feinstein Ban, making the current California AWB look tame.

    If the Left is continued to be allowed to get away with calling Semiautomatic Firearms Technology as “Assault Weapons”, they will soon start declaring the need for bans on “High-Powered, Military Grade, Sniper Rifles”, aka………yer huntin’ rahful,… the leftist will soon happily mock us.

    The “Dangerous and Unsual Weapons” phrase is the first thing that needs to be removed from the legal lexicon of firearms. It is THE element of the Heller Ruling that has given the green light to the lower liberal courts, carte-blanche to undermine and write Heller out of existence. Hind-Sight is 20/20, but Scalia should’ve put his foot down to Kennedy and told Stevens to F*** Off.

    1. Unfortunately, it’s not as though Scalia had any leverage over Kennedy, and he needed Kennedy’s vote. Scalia “putting his foot down” would have meant precisely nothing, except maybe a 5-4 the other way.

      So what we get is a a ruling that has some language that the lower courts have abused shamelessly, and an area that the new (hopefully) pro-gun majority will address some day. It’s better than an outright anti-Second Amendment ruling, which would be much harder to overturn.

    2. Carlos is absolutely correct. Those would have been added at Kennedy’s request to keep Kennedy’s vote, which we needed to do.

      1. The memo leaves the aura that Scalia could’ve convinced Kennedy to ignore Stevens, but that is just my opinion. Stevens admits that Kennedy was easy to sway, and for Scalia to cede that ground to Stevens is why the lower courts have gotten away with hollowing away Heller.

        I will however say that Roberts can not be trusted on gun issues. Obamacare is the reason for it, and because of that, we need Breyer and/or Ginsburg to croak.

        1. You beat me to the point.
          IMO, Roberts just may be the new ‘squish’ to take the place of Kennedy.

  3. As I recall, the NRA was reluctant to sign onto Heller because of worries about Kennedy. A position for which they have been much derided in these precincts. Especially after it proved not to be an issue after Heller was decided. So now are we saying they were right to be worried?

    I remain concerned about Roberts. The ducking of the issue and letting the circuits run wild is typical of his behavior on other issues. I guess we will see someday soon.

    1. Alan Gura have very candid comments about the lead up to Heller. He and Bob Levy were almost torpedoed twice by NRA-ILA until it made it to the appeals court. There’s not much need to rehash it but suffice it to say the relationship didn’t start out well.

      There were apparently more concerns than just Kennedy and in fact, if you listed to the Heller arguments, Kennedy telegraphed his ruling fairly well.

      1. Yeah, in hindsight Gura was right about Kennedy on Heller. But now this post is saying that the problem with enforcing Heller was Kennedy which would imply that the NRA was right. so which is it.

        1. That’s the NRA preferred narrative For sure but there were other reasons why they would not come on board. They were heavily resentful of CATO / Levy and there was a not altogether unrealistic prospect of seeing membership and funding Plummer if the case was won. Wayne and Chris aren’t accustomed to driving beat up Honda civics.

          Again there were other reasons given some real so I’m probably made up but their documented from that time And most of them had nothing to do with Justice Kennedy

            1. True and god only knows what would have happened if Bush had gone ahead and nominated Harriet Meirs instead of Alito. but that is neither here nor there. The question is about Kennedy. If the Stevens comment isn’t just disinformation, then the NRA was correct to be worried about Kennedy and the bashing about their reluctance to push things is wrong-headed. The theory held by Cato and Gura was that Kennedy was solid which is why they went ahead instead of NRA misgivings. There was lots of Kennedy stuff cited at the time to demonstrate why they did this. The Stevens story appears to cast doubt on this narrative.

              With the Trump appointees, I would think we are about to find out whether the problem was Kennedy or Roberts (or both). The experiment will be spoiled if Trump gets another appointment before a case reaches the Supremes but I can definitely live with that.

  4. And now that NYSRPA v. City of New York has been distributed for the 1/4/19 conference, we’re going to find out very soon if they’re willing to take more 2nd Amendment cases.

    Also, now that Judge Vanaskie took senior status, the balance of the 3rd Circuit Court will be switching.

    1. Well said on the 3rd Circuit Court. Also, Trump has 5 vacancies to fill on the US Federal District Court for the District of New Jersey. New Jersey is likely going to expand it’s AWB, and Delaware could be one of the first “Pro-Gun Blue States” to turn sour.

      But then again, maybe none of those things happen with the 3rd Circuit Court about to flip when Trump fills the 2 vacancies there.

  5. In any future Supreme Court gun decisions, I fully expect Roberts to fuck us.

    1. We shall soon see. Illinois is gonna be the 1st new domino to fall in the AWB and High Capacity Magazine Ban fight. The 7th Circuit Court has been reshaped by Trump to the Right. The 2 &7th Circuit Judges that upheld the Chicago AWB and HCM bans in that 2014 3-Judge Panel Hearing have been replaced by Trump appointments including 1 of them being……Amy Coney Barrett.

      We also have a case with Delaware, which is under the jurisdiction of the 3rd Circuit. The 3rd Circuit Court is also going to be flipping to the Right next year, and past gun-issue rulings, looking at the current make-up and obama regime make-up of that court were all partisan rulings over gun cases. GOP appointees voted to strike down gun laws, while of course, the Democrat appointees utilized their filthy anit-gun activism to uphold and even expand them.

      The 8th circuit Court may be having to deal with Minnesota, as their new Democrat Governor and Democrat Controlled State House of Representatives are looking to pass an AWB and HCM Ban, and with a 1-seat majority GOP State Senate, Minnesota could be another court case

      There is going to be splits among the Appeals Courts soon on these flash-point gun issues, and indeed, SCOTUS will be making a ruling sooner rather than later.

  6. It still worries me that Thomas has signaled multiple times that he’d be content to retire now. I can’t imagine him risking being replaced by another Kennedy, so even with the current court makeup, it’s a fragile thing long term. I won’t feel good about the balance until it’s 6-3.

  7. My mid term concern is that if we don’t get a case before the court in the next decade or so, bans will be “longtanding.” I can see a squishy Roberts, concerned about the perception of the institution, acknowledging that AWBs in place since 1991 are “longstanding ” and presumptively justified in 2031… that be 40 years of ban. The clock is ticking.

    I am also concerned that trump’s nominees will be peak SCOTUS for us. The GOP judiary cmte has indicated they won’t consider nominees in an election year.
    Even if reelected in 2020, the Senate map gets very tough for us. And I am not optimistic about winning in 2024. I think we will know where we sit for the foreseeable future WRT SCOTUS this time next year.

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