The inclusion of Judge Raymond Kethledge
on President Donald Trump’s shortlist to replace Supreme Court Justice Anthony Kennedy has some in conservative circles worried history may be repeating itself, Breitbart News has learned.
Despite his generally conservative record of decisions on the bench, three sources familiar with Kethledge’s reasoning and judicial philosophy have raised concerns with Breitbart News over his tendency, not unlike his one-time boss Justice Kennedy, to resort to sweeping moral judgment, rather than constitutionally-mandated restraint, in reaching his opinions.
An opinion Kethledge joined in 2016 similarly raised questions as to the centrality of originalism in Kethledge’s approach to the Second Amendment.
In Tyler v. Hillsdale County Sheriff’s Dept., all 15 judges of Kethledge’s court reheard an earlier panel decision and ruled 9-6 in favor of Clifford Tyler, a Michigan man a magistrate sent for a brief stay at a mental health facility after his children found him distraught on learning his wife of 23 years had run off with another man — and his life savings — and called the police, fearing their father might harm himself. Thirty years later, Tyler sought to have his right to purchase a gun, lost forever as a result having been in a mental hospital for 30 days in the 1980s, restored. Kethledge sided with the majority, joining Judge Jeffrey Sutton’s concurring opinion, one of several siding with the man who, under Michigan law, had no mechanism to petition to dispute his status as “mentally ill” and who was unable to own firearms, despite having led an exemplary life without signs of mental illness for decades.
Kethledge had the option of joining one of several pro-gun opinions, including a heavily “original meaning” focused one which criticized the controlling opinion in the case for “giving little more than a nod to the originalist inquiry.”
But Kethledge instead joined the Sutton opinion, which focuses largely on the injustices endured by the mentally ill, criticizing the government for tacking too close to “the unfair generalizations that once applied to individuals with mental health challenges” in its arguments. Sutton, for example, made reference to the infamous 1927 Supreme Court case Buck v. Bell, that upheld Virginia’s eugenic sterilization laws for the mentally ill.
“The key insight,” Sutton concluded, “is that no government may permanently deny rights based on generalizations stemming from classifications about any individual who once was institutionalized.”
The implications of Kethledge’s decision to join Sutton’s Tyler concurrence are uncertain, but may suggest a judicial philosophy on the Second Amendment that stands at odds with the originalist direction paved by Justice Antonin Scalia when he crafted the Heller decision.
When Judge Kavanaugh, for example, addressed the very first major post-Heller Second Amendment case at the appellate level, he delivered a blistering, original meaning-driven dissent to the D.C. Circuit’s decision to uphold Washington, D.C.’s attempts to preserve as much of the very gun regulations at issue in the original Heller case as possible.
“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition,” Kavanaugh writes, adding later:
The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown to the Constitution’s Framers.
“Our role as a lower court is simply to apply the test announced by Heller to the challenged provisions of D.C.’s new gun laws,” Kavanaugh concludes, emphasizing judicial restraint.
When another judge reportedly under close consideration for Kennedy’s post, Thomas Hardiman of the Third Circuit, wrote a concurring opinion in a post-Heller case on the application of laws prohibiting felons from possessing guns, he writes, “[A] common thread running through the words and actions of the Founders gives us a distinct principle to inform our understanding of the original public meaning of the text of the Second Amendment,” and engaged in an extensive historical analysis of the application of laws banning dangerous people from owning guns throughout the history of the United States, pre-constitutional America, and England.
This Hardiman opinion, in Binderup v. Attorney General, became an instant classic of Second Amendment originalism, thrilling the National Rifle Association and pro-gun rights legal scholars.