The first questions about gun rights during Elena Kagan’s confirmation hearings today came not from Republicans — who always attempt to make the Second Amendment an issue — but from Democrats. Kagan quickly ended the line of inquiry by declaring citizens’ rights to own guns as “settled law.”
Although a variety of groups tried in recent days to portray Kagan as hostile to gun rights, Kagan attempted to put those fears to rest during questioning by Chairman Sen. Pat Leahy (D-VT) this morning.
“Is there any doubt after the court’s decision in Heller and McDonald that the Second Amendment to the Constitution secures a fundamental right for an individual to own a firearm, use it for self- defense in their home?” Leahy asked.
“There is no doubt, Senator Leahy, that is binding precedent entitled to all the respect of binding precedent in — in — in any case. So that is settled law,” Kagan responded.
Gun rights were expected to be a major issue headed into the confirmation hearings, since conservative groups were pushing notes found in Kagan’s Clinton White House documents that labeled the Ku Klux Klan and the National Rifle Association as “bad.” Today, Kagan said under questioning by Sen. Jon Kyl (R-AZ) that the notes were of someone else’s comments from a phone conversation and that any attempt to link the NRA with the KKK would be “ludicrous.” (We wrote a bit about Kagan lauding the NRA recently, too.)
When those comments are coupled with the Chicago guns decision yesterday stating citizens have the right to gun ownership anywhere they live, it’s looking like a good week for the gun rights community.
That might be one reason that the NRA isn’t going all-out to block Kagan’s nomination According to RedState, which unearthed some internal NRA emails, the NRA’s management team “has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings.”
“That’s right: the foremost gun rights lobby in the nation is prohibiting its board from testifying in the Elena Kagan confirmation hearings about the second amendment,” Erick Erickson wrote Sunday. He adds:
The NRA did issue a statement on Friday after the internal Senate email began leaking out informing people of the gag order. The statement noted Kagan’s problematic record on guns, but that’s just smoke and mirrors. Don’t believe them when they say they are working with Senators to investigate her record. If they were really working with Senators, they would have accepted an invitation to testify on the Kagan nomination when they were invited. The gag order on board members is not limited to providing testimony, but it prohibits board members from coming out against Kagan in their individual capacity.
That riled up some gun rights advocates even further, given they already were irritated that the NRA cut a deal with Speaker Nancy Pelosi on a campaign finance bill.
However today’s hearing didn’t show much in the way of right-wing fireworks. Sen. Russ Feingold (D-WI) went down the gun route, however, asking about the McDonald decision issued yesterday. Kagan said she is sure the court will hear much more on the issue. “I suspect that going forward the Supreme Court will need to decide what level of constitutional scrutiny to apply to gun regulations,” Kagan said.
Sen. Dianne Feinstein (D-CA) took an emotional approach, reminding the hearing room that she found Harvey Milk’s body when he and Mayor George Moscone were shot and killed in San Francisco and she served as a supervisor.
Feinstein seemed worried that Kagan declared the right to own a gun for self-defense “settled law.”
The exchange:
Feinstein: This is a 5-4 closely decided decision in both cases. California is not Vermont. California’s a big state with roiling cities. It’s the gang capital of America. The state has tried to legislate in the arena.
As I understand McDonald, it’s going to subject virtually every law that a state passes in this regard to a legal test. And that causes me concern, because states are different. Rural states have different problems than large metropolitan states do.
I mean, we probably have as many as 30 million people living in cities where the issue of gangs is a huge question.
So here’s my question to you: Why is a 5-4 decision — in two quick cases, why does it throw out literally decades of precedent in the Heller case in your mind? Why does it — why do these two cases become settled law?
Kagan: Senator Feinstein, because the court decided them as they did. And once the court has decided a case, it is binding precedent.
Now there are various reasons for why you might overturn a precedent. If the precedent has proved — proves unworkable over time or if the doctrinal foundations of the precedent are eroded, or if the factual circumstances that are — were critical to why the precedent — to the original decision, if those change.
But — but unless one can sort of point to one of those reasons for reversing a precedent, the operating presumption of our legal system is that a judge respects precedent. And I think that that’s an enormously important principle of the legal system, that — that one defers to prior justices or prior judges who have decided something. And — and that it’s not enough, even if you think something is wrong, to say, “Oh, well that decision was wrong. They got it wrong.”
That the whole idea of precedent is — is that’s not enough to say that a precedent is wrong. You just — you assume that it’s — that it’s right and that it’s valid going forward.
Now, Kagan foes are likely to say that she’s just talking the talk to hide a liberal, anti-gun agenda. Sen. Charles Grassley (R-IA) suggested as much when he asked her if her personal opinion was that the Second Amendment protected only collective rights rather than individual rights, based on her recommendation while clerking for Justice Thurgood Marshall, that she “wasn’t sympathetic” to agreeing to hear a case on that topic during her clerkship. Kagan noted that the Heller wasn’t yet settled, and thus the individual right to bear arms wasn’t yet recognized by the court. That degenerated into an argument by Grassley that the right to bear arms predated the decision and the constitution itself, something that garnered a puzzled look from Kagan and a reiteration of her commitment to the principle of stare decisis when it comes to Heller and McDonald.
Of course, as we’ve noted, these hearings do often become a dance where nominees don’t explain their original intentions. Kagan seems likely to be confirmed, and the only way we’ll know for sure is how she votes when, if it’s as she predicted, another similar case comes before the high court.
Transcripts courtesy of CQ-Roll Call’s legislative tracking services.
