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Kagan Takes Gun Off Table, Calls Recent SCOTUS Cases 'Good Precedent'

First Posted: 06/29/10 04:36 PM ET Updated: 05/25/11 05:55 PM ET

Kagan Supreme Court

Supreme Court nominee Elena Kagan seems determined -- if not poised -- to take another Republican argument against her candidacy off the table, as she testified on Tuesday that she considers recent cases upholding Second Amendment rights to be "good precedent going forward."

Kagan said that there was now "no doubt" that the right to bear arms as established by District of Columbia v. Heller was "binding precedent." If she were to make it to the bench and hear a gun-related cases in the future, she added, her "responsibility would be to apply to the Constitution as understood and previously applied by the court and that means as understood and interpreted by the court in Heller."

"I do think that Heller is the law going forward," she said. "I have not had, myself, the occasion to delve into the history that the courts dealt with in Heller. But I have absolutely no reason to think that the court's analysis was incorrect in any way. I accept the court's analysis and will apply it going forward."

The comments are the clearest yet that Kagan would do little to change the current legal constructs of gun-rights laws should she be confirmed. That isn't to dismiss the ability of Congress to try and pass additional legislation on the matter. But if such legislation were passed and subsequently challenged in the courts, the nominee would likely strike it down if it violated the legal premises put forth in Heller.

The same held true, Kagan said, with respect to the decision handed down by the court on Monday in the case of Chicago v. McDonald, which held that the city's nearly 30-year ban on handguns is illegal.

"I do think that those decisions [Heller and McDonald] are settled law and are entitled to all of the weight that any precedent of the Supreme Court has," said Kagan.

Prior to her confirmation hearings, there were clear indications that Republicans planned to make hay of Kagan's supposed hostility to Second Amendment rights. As a clerk for Supreme Court Justice Thurgood Marshall, she had said she was "not sympathetic" to a man who had claimed his rights were disregarded after being arrested for carrying an unlicensed firearm. Republicans had pledged to hammer her on this memo during the confirmation hearings. But by not challenging the court's most recent Second Amendment cases, Kagan has effectively made the topic moot. And, in the process, she has underscored the real political influence that the gun-rights lobby has within the halls of political power -- in all three governing branches.

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