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Fact: Kagan is Anti-Second Amendment

President Obama’s nominee to the U.S. Supreme Court is hostile to the 2nd Amendment.  That is a fact.  Clear and convincing evidence in the public domain proves that fact.  If you hear the left argue that Elena Kagan is not hostile to the 2nd Amendment, know that those claims are proven incorrect by Kagan’s testimony before the Senate Judiciary Committee and her lifetime of anti-gun activism.

Media Matters for America has put out a propaganda sheet claiming that it is a myth that President Obama’s nominee to the Supreme Court, Elena Kagan, is anti-Second Amendment.  Kagan has spent her professional career implementing anti-gun initiatives as a clerk to Justice Thurgood Marshall, as counsel for the Clinton Administration and as President Obama’s Solicitor General.  Furthermore, Kagan’s testimony before the Senate Judiciary Committee confirms a hostility to the idea that the 2nd Amendment is an individual right of all Americans incorporated against state action restricting that right.  The fact of the matter is that Elena Kagan will vote to uphold every local, state and federal restriction of the right of Americans to “keep and bear Arms.”

Kagan wrote the following in a memorandum dated August 27, 1987 from her to Justice Thurgood Marshall in the Sandidge v. U.S. case.

A jury convicted petr of carrying a pistol without a license possession of an unregistered firearm, and unlawful possession of ammunition The CA affirmed. Petr’s sole contention is that the District of Columbia’s firearm statutes violate his constitutional right to ‘keep and bear Arms.’ I’m not sympathetic.

Media Matters claimed out with the claimed that the Drudge Report highlighted Kagan’s quote “I’m not sympathetic” out of context.  MM claims “the Drudge Report highlighted the following out-of-context Kagan quotes to falsely suggest that Kagan’s statements indicate her views on gun rights are outside the mainstream – ‘I’m not sympathetic’ to the claim of a defendant who argued that his Constitutional rights were violated in a case.”  The full Kagan memo is devoid of any legal analysis nor any case citations for the assertion that she is not “sympathetic” to the petitioner’s Second Amendment claim.  Kagan expressed her personal view that she is not “sympathetic.”  Kagan did not write that the law was not sympathetic to the petitioner’s claim.  She did not write that she was not sympathetic because of Supreme Court precedent.  Kagan expressed a personal hostility to the Constitutional claim without a written legal basis for the claim.  This is merely one piece of evidence that Kagan is hostile to the 2nd Amendment – there is more.

The supporters of Kagan ignore another piece of evidence that Kagan is hostile to the Second Amendment.  When Kagan served the Clinton Administration, she showed a strong hostility to gun rights.  The L.A. Times reported on may 11th of this year that Kagan “drafted an executive order restricting the importation of certain semiautomatic assault rifles.”  Kagan’s political activism in implementing a gun control agenda was a political act, yet this nominee has yet to explain her constitutional justification for that executive order.  The L.A. Times further reported that “gun-control efforts were a hallmark of the Clinton Administration.”  Many conservatives would argue that an individual who works diligently on gun control efforts evidences a hostility to the right of all Americans to defendthemselves with a firearm.  Another gun control initiative by Kagan was her drafting of “an executive order that required all federal law enforcement officers to install locks on their weapons.”  This is further evidence of an individual who has no sympathy for Second Amendment rights.  But there is more.

Elena Kagan has shown hostility to Second Amendment rights in her duties as President Obama’s Solicitor General.  General Kagan failed to find a federal interest in the McDonald v. Chicago case decided this week and failed to file a brief in the case.  The McDonald case held that the Second Amendment applies to the states.

Hans Von Spakovsky and Todd Gaziano wrote for National Review Online the following before the McDonald case was decided:

The Supreme Court is in the process of deciding a landmark Second Amendment issue in McDonald v. Chicago that also raises an even more profound question related to the meaning of the Fourteenth Amendment. As all appellate lawyers know, the Court took the case and heard oral argument to decide whether state and local governments are bound by the Second Amendment, and if so, whether Chicago’s restrictive gun ban is constitutional. Even if the first question is of no interest to Kagan — despite the fact that the Fourteenth Amendment theory advanced by the main party and being considered by the Court has every constitutional law professor in America engaged — the second question implicates many federal firearms laws. Yet in her capacity as solicitor general, Elena Kagan decided not to file a brief or participate in what may be the most important Second Amendment case in our nation’s history — and potentially the most important constitutional law case of any type this decade.

If Elena Kagan does believe that the constitution protects 2nd Amendment rights, then why did she not file a brief in the McDonald case?  This is evidence that Kagan was seeking to hide her views on the Second Amendment in anticipation of a potential nomination for the next opening on the Supreme Court.  The holding in the McDonald case opens up judicial attacks on many federal and state gun laws as applied to the residents of the different states, yet Kagan found no federal interest compelling the federal government to file a brief.  Kagan’s inaction on that case is further evidence of a hostility to the right to “keep and bear Arms.”  In three jobs where Kagan had a responsibility to respect the 2nd Amendment rights of all Americans, Kagan chose to work against those constitutional protections.

Yesterday, Kagan provided further evidence during her testimony before the Senate Judiciary Committee.  This exchange between Senator Chuck Grassley (R-IA) and General Kagan is telling:

Grassley: So whether you personally believe that Heller’s — or the right to bear arms is a collective or an individual right will have no bearing in the future, but you — you don’t want to tell us what your own personal belief is. That’s kind of what I’m asking.

Kagan: Well, my approach in these hearings has been not to grade cases, even if I thought I had the wherewithal to grade them, which I am not sure I do in Heller, just because the case is based so much on history which I’ve never had an occasion to look at. I know that the — the scholarship in this area has suggested that there’s a very strong view that — that there is an individual right under the Second Amendment. And certainly, Justice Scalia’s opinion, which is a very thorough opinion for the court, is entitled to all the weight that any precedent has going forward.

The Heller Precedent did not bind Justice Sonia Sotomayor.  Sotomayor joined Justices Breyer and Justice Ginsburg in arguing that “the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.”  More from the opinion signed by Sotomayor:

I can findnothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as “fundamental” insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.  Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government.  I therefore conclude that the Fourteenth Amendment does not “incorporate” the Second Amendment’s right “to keep and bear Arms.”

In this opinion, Justice Breyer argued that Heller was a wrongly decided case.  Sotomayor claimed at her hearing that she would respect Supreme Court precedent and the holding in Heller and that Heller was “settled law.”  Yet Sotomayor signed onto an opinion that argued for repeal of “settled law.”

David Kopel wrote in the Washington Times this week:

Perhaps the most startling aspect of the Supreme Court opinions in McDonald v. Chicago was the dissenters’ assault on District of Columbia v. Heller. Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. Ominously, Justice Sonia Sotomayor joined the Breyer dissent – contradicting what she told the U.S. Senate and the American people last summer.

Is the same happening right now when Kagan assures the Senate Judiciary Committee that McDonald and Heller are binding precedent and settled?

Kopel argues that “the Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, ‘In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.’ Contrast that withher Senate testimony: ‘I understand the individual right fully that the Supreme Court recognized in Heller.’ And, ‘I understand how important the right to bear arms is to many, many Americans.'”

More from the hearing yesterday:

Grassley: The court said in Heller, quote, “It has always been” — and I guess I would put emphasis upon the word “always” — “It’s always been widely understood that the Second Amendment, like the First and Fourth, codified a pre-existing right.” Do you believe that the Second Amendment codified a pre-existing right? Or was it a right created by the Constitution

Kagan: Senator Grassley, I’ve — I’ve never really considered that question, as to whether the Second Amendment right…

Grassley: Well, it’s basic to our Declaration of Independence that says we’re endowed by our creator with certain — certain individual rights, among them, you know, what it says, and we aren’t endowed by our government. So the question here is, are we endowed by our Constitution with this right or did it exist before the Constitution existed?

Kagan: Well, Senator Grassley, I do think that my responsibility would be to apply the Constitution as understood and previously applied by the court, and that means as understood and — and interpreted by the court in Heller, and that’s what I would do. So I think that the — the fundamental legal question would be whether — that a case would present would be whether the Constitution guarantees an individual right to bear arms, and Heller held that it did, and that’s good precedent going forward.

Kagan argues that Heller is “good precedent going forward,” yet Sotomayor made a similar promise to member of the Senate Judiciary Committee.  We can’t hold the offenses of Sotomayor against Kagan, but a close reading of Kagan’s testimony evidences a parsing of words.  Grassley asked if the right of self-defense existed before the Constitution recognize the right — Kagan dodged.  Sound familiar?

As I wrote for Townhall.com during the Sotomayor confirmation hearings:

Senator Tom Coburn (R-OK) finished an excellent line of questioning this morning and Sotomayor’s answers were telling.  Obama’s nominee to the Supreme Court could not answer a simple question as to “do you have a personal opinion, or can you give me your opinion, of whether or not in this county I personally, as an individual citizen, have a right to self defense?”  Sotomayor answered, “I — as I said, I don’t know.”

Back to Elena Kagan in her own words:

Grassley: I know the Declaration of Independence is not the law of the land, but it does express a philosophy of why we went to war and why our country exists. Andyou understand, I hope, that if we’re endowed by our government with certain rights, the government can take them away from us, whereas if we possess them ourselves andgive them up from time to time to the government to exercise in our stead, then the government can’t take away something that’s inherently ours. Do you believe that the Second Amendment right to bear arms is a fundamental right?

Kagan: Senator Grassley, I think that that’s what the court held in McDonald.

Kagan was asked if she believes that the 2nd Amendment right to keep and bear arms is a fundamental right and Kagan recited that Grassley’s opinion was the opinion in the majority of McDonald.  She refused to answer a direct and simple question. Grassleyfollowed up with the question “andyou agree with it?”  Kagan responded that the McDonald case is “good precedent going forward.”  That is a great example of a nominee violating her own standard as stated in a book review of “The Confirmation Mess” by Stephen L. Carter in the Spring of 1995, Elena Kagan wrote:

When the Senate ceases to engage nominees in a meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.

This nominee is stonewalling the Senate Judiciary Committee on her views of the Second Amendment when she relies on reciting precedent without explaining her view on the issue.  Is there any reasonable doubt that Elena Kagan would join Sotomayor in throwing out Heller and McDonald?  I don’t think so.  Elena Kagan’s lifetime of work to restrict the 2nd Amendment may be rewarded with a lifetime appointment to the Supreme Court.  Expect Kagan, if confirmed, to lead the charge against your individual right to “keep and bear Arms.”

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