Bench Memos

Law & the Courts

Judge Raymond Kethledge and the Second Amendment

Judge Raymond Kethledge teaches his son, Ray, Jr., how to shoot.

Judge Raymond Kethledge vigorously defends — and exercises — individual rights under the Second Amendment. On the bench, he has faithfully applied the Supreme Court’s decision in District of Columbia v. Heller, and ruled that Second Amendment rights deserve at least as much protection as any others. Off the bench, he is an avid hunter and a lecturer on originalism, textualism, and the Second Amendment.

Perhaps the most important Second Amendment case to come before the Sixth Circuit in the last few years — so important that the court took it en banc — is Tyler v. Hillsdale County Sheriff’s Department. The case dealt with a federal statute that barred anyone who had ever been involuntarily committed from owning a gun. Although Clifford Tyler had enjoyed decades of good mental health, the statute barred him from owning a gun because he had been involuntary committed — one time — 28 years earlier.

In a divided vote, the court held that Tyler had plausibly alleged that the statute violated his Second Amendment rights. Judge Kethledge went further still. Joining an opinion by Judge Sutton, he concluded that the statute, as applied to Tyler, did violate the Second Amendment because Tyler had not received an individual adjudication before he lost his rights.

Kethledge thus eschewed the debate between strict and intermediate scrutiny that occupied most of the court. These so-called tiers of scrutiny require the government to show that statutes infringing on a constitutional right serve an important interest and relate closely to that interest; under strict scrutiny, the interest must be compelling and the statute narrowly tailored. In too many cases, these flexible tests empower judges to substitute their own policy preferences for the law — first by selecting the applicable standard (seemingly at random in many cases) and then by decreeing which governmental interests count as compelling and which do not. Thus, in his dissenting opinion in a case involving the Virginia Military Institute’s all-male admission policy, Antonin Scalia warned that judges’ abstract legal tests can never supersede our “constant and unbroken national traditions.”

Judge Kethledge understands that lesson, which is why his position in the Tyler case faithfully applied Justice Scalia’s opinion in Heller. There, the Supreme Court recognized two narrow exceptions to the general rule that citizens have the right to keep and bear arms for self-defense — for felons and for the mentally ill. Kethledge recognized that, under Heller, the government was required to show that Tyler fell into one of these historically recognized categories before it could strip him of his Second Amendment rights. Specifically, he concluded that the government must not merely argue about interests and tailoring, but provide gun owners like Tyleran individual adjudication as to their mental health. In this way, Judge Kethledge honored the principles set out in Heller and showed that he sided with Justices Thomas and Scalia in concluding that Second Amendment rights must be protected to the full extent of their historical scope.

Kethledge’s commitment to the Second Amendment extends beyond the bench. In his public speeches, he has taught students and lawyers about originalism — the methodology that Justice Scalia used in Heller to confirm that the Second Amendment protects an individual right to possess firearms for self-defense, not just the militia. According to Judge Kethledge, judges must answer constitutional questions not by consulting their own policy preferences or the evolving consensus in elite law schools, but rather by ascertaining “the meaning that the citizens bound by the law would have ascribed to it at the time it was approved.” That is precisely the approach taken by Scalia’s majority opinion in Heller, which devoted more than 30 pages to analyzing the meaning of the Second Amendment at the time it was adopted.

Likewise, in moderating a Federalist Society panel on the Second Amendment, Kethledge suggested — as Justice Thomas has recently — “that the lower courts have not been faithfully applying Heller, as to methodology and also as to sort of the rigor of their scrutiny.” And in response to the misconception that the Second Amendment applies only to muskets and bayonets, he explained that, today, the Second Amendment protects modern weaponry just like “the First Amendment protects the Internet.”

In his personal life, Judge Kethledge exemplifies the kind of robust and responsible gun ownership that the Heller Court recognized to be at the core of the Second Amendment since the founding era. Kethledge has hunted in northern Michigan every year for over two decades, usually in the Huron-Manistee National Forest.  And when his son, Ray, Jr., came of age, the two Rays started hunting together, just like generations of Americans before them. The same goes for self-defense: In addition to many years owning rifles and shotguns, Judge Kethledge has for over a decade carried a .40 Glock 27 for personal protection (with an active conceal-carry permit).

It is thus no surprise that Judge Kethledge has likened hunting to judging — a comparison that may make him unique among federal judges. In a recent speech to the Federalist Society chapter at the University of Michigan law school, Judge Kethledge used his experience hunting for partridge to illustrate his concern that the Chevron doctrine has made courts defer too readily to federal agencies’ interpretations of the law:

Around this time of year I like to hunt for grouse (or partridge, as we call them in Michigan) with my son in the forests Up North. Sometimes the birds are in cedar swamps that are full of alder bushes and dense secondary growth. More than once I’ve decided that, even if the birds are in there, it’s not worth pushing through all those branches to get to them. Interpreting statutes like the Clean Air Act is often similar. The statute presents a dense undergrowth of sections and subsections and subsections within those. The answer to the specific question in the case might lie somewhere in those sections and subsections, but working through them is hard. And meanwhile the agency is there to offer a path already cleared. Down that path might lie a woodcock rather than a partridge, but both are game birds, and the judge might be tempted to conclude that under the circumstances a woodcock is good enough. And so in agency cases it often seems that the court pauses only briefly at step one, without much effort to hack through the undergrowth, before proceeding straightaway down the cleared path of step two.

As one of Judge Kethledge’s former law clerks, it should go without saying that I would be very pleased to see him selected to fill the upcoming Supreme Court vacancy. To be sure, he is one among a number of impeccably well-qualified candidates, each of whom can be expected to discharge that responsibility ably. What is absolutely clear to me is that all Americans would find in Judge Kethledge a justice who is as committed to originalism and textualism as he is to the Second Amendment and the American way of life.

Donald Burke — Donald Burke clerked for Judge Raymond Kethledge from 2009 to 2010 and for Justice Antonin Scalia from 2011 to 2012. He practices trial and appellate litigation in Washington, D.C.

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