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.
