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

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.

Comments

[inonoatama]

07:39 PM on 07/03/2010

http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/

[Lady Francesca]

02:04 PM on 07/01/2010

Once again, the popular news media misses the point of a U. S. Supreme Court ruling. Actually, every American has dual citizenship; we are citizens of the United States and citizens of the sovereign state in which we reside. The United States has a Constitution, and each state has one, too. The Bill of Rights (BOR), of which the 2nd Amendment is part, was an amendment to the federal Constitution and therefore did not necessarily apply to the individual states. Through a series of "incorporation" cases, the Supreme Court has previously ruled that all but one provision of the BOR apply to the states because they (the Supremes) have never before this case had the opportunity to consider whether the 2nd Amendment does as well. What the Supreme Court decided was merely that the 2nd Amendment (the right of every citizen to bear arms) does apply to the states and therefore no state [in this case Illinois] can outright ban (as opposed to regulate) the private ownership of guns. People here should have at least SOME idea of how your federal government works before you make comments on something as important as the significance of a Supreme Court ruling.

[inonoatama]

10:55 PM on 06/30/2010

Here's something we may wish to consider. We live in a republic, which I will define for the moment as a state in which the people are sovereign. Let me add to that the notion of majoritarianism (see Federalist 58 on this). Now, according to data from the American National Election Studies (2000), 47.6% of Americans want it to be "a lot more difficult" to buy a gun, and another 11% want it to be "somewhat more difficult." So there's 58.6% of the nation wanting stricter gun control (N=1807). But on top of that, another 36.5% want to "keep rules about the same."

So right there you have 95.3% of the American public NOT wanting gun control laws any less strict than they are. And a clear majority of 58.6% wants tighter regulation. Clearly only the wingnut fringe (4.2%) wants less regulation of guns purchases (and someone ought to keep an eye on these people!). What this should tell you is that the gun lobby is damn powerful.

[Rooster Coburn]

11:55 PM on 06/30/2010

So would you base other civil rights on private polling data, popular sentiment, the latest election or on the U.S. Constitution?

RKBA is the civil right that guarantees all the others.

[inonoatama]

12:52 AM on 07/01/2010

First of all, data from the American National Election Studies are not "private polling data." The ANES is funded by the National Science Foundation, and these surveys have been conducted by the University of Michigan since 1948. They are the gold standard of American political opinion data.

Second, no civil rights should not be based on polls but on 1) the Constitution and 2) legislation and judicial opinion produced pursuant to the Constitution. The poll data I provided, however, should give you some sense of what the people want. As Madison wrote in Federalist 49, "the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power." Which is to say that legislation, and constitutional amendment must reflect the will of the people in accordance with the terms of Constitution. It is clear that only a small minority wants expansive gun ownership rights, and once powerful special interests (NRA, etc.) are put in their place, the will of the people -- to more sharply restrict gun ownership -- will prevail.

Also, in case you were wondering, politicians pay close attention to polls, and most of the respected ones are scientific and proven accurate. Marketers also use survey data very effectively. I'd be curious to know which politicians you think are out there who do not carefully study polling data (R or D). I doubt you'll find a single one.

[Rooster Coburn]

03:29 PM on 06/30/2010

I'd feel a lot more comfortable with a candidate who had a concealed carry permit from a state or at least one who open carried on a regular basis in an open carry state.

[MAPHDStubbs]

02:58 PM on 06/30/2010

I was duly impressed with Kagan's opening remarks. She is incredibly poised and clear in her understanding of her job to get confirmed. As a Mormon woman in a patriarchal home, I was not taught to be political and strategic in my life.I relied on men to "take care of me." When I disavowed the political and religious philosophy of LDS men, I lost any organizational and cultural power. I finished my license in educational administration, but I did not get the first several administrative positions for which I applied. Another student in the administrative program cautioned me about using the "F" (feminist) word in an interview. I did not think I had, but my words said confidentially defeated my candidacy. I now understand how my lack of strategy paved the way to inaccessibility of those top positions. I said too much, revealed too much about personal beliefs, and did not strategically plan my access to power in education. I am so impressed with a woman who knew how to obtain that power. I grew up in a time when women were taught somehow to be dependent and frail. I was not good at either, but thought I should be. I love that this remarkable woman has no doubts about her prowess and her ability to lead, collaborate, and even change the interpretation of the law if she believes it is incorrectly followed.. I have no doubt that she will be confirmed.

[ZeraLee]

12:03 PM on 06/30/2010

Judicial confirmation hearings are a tug-of-war by their very nature.

The Senators want an idea of how the nominee will rule to determine if the nominee would make a good Justice.
Especially on hot-button issues, they try to ask how the nominee is predisposed to rule.

The nominee tries to give them the information the Senators need, without prejudging a case - prejudging a case would be a disqualifier for a judge at any level.

This is a demonstration of the differing responsibilities of 'Advise and Consent' and 'Judicial Principles'.

[docbets]

02:53 PM on 07/01/2010

Actually, the Judiciary Committee castigates the nominee for being political while politicizing the nominee in every way they can think of.

[ZeraLee]

06:51 PM on 07/01/2010

Sadly, true.

[Dave Thinkster Paulson]

10:55 AM on 06/30/2010

Good for Elena Kagen! She's obviously a liberal who won't sacrifice her principles and loose her objectivity just because she doesn't agree with a given law. If we had more such integrity on the SCOTUS, we wouldn’t now have to deal with corporations having the rights of real people.

[JJK]

09:25 AM on 06/30/2010

I misspelled Justice Ginsburg's name in my post just below.

[Rooster Coburn]

03:29 PM on 06/30/2010

She'll overlook it this one time! ;>)

[MacCraniac]

09:25 AM on 06/30/2010

Must read for all

http://willyloman.wordpress.com/2010/05/10/all-in-the-family-the-globalist-kagan-family/

This woman should not be confirmed.

[moonflowerjewelry]

09:24 AM on 06/30/2010

I am actually and surprisingly not too weirded out by this. A few days ago I posted a question about the demographics of the NRA and wondered what would happen if all the social "undesirables" showed up armed at proNRA rallies. I honestly suspect that NRA members think they themselves should be armed, but would crap their pants if the populations they don't like were just as armed in all the same public places. The only people they wouldn't have to worry about were the undocumented laborers, because they are too busy working and too poor to buy a gun. Can you imagine a group of guys traveling to SF to harrass the drag queens on Polk St. and were confronted ladies "packing heat"?

[moonflowerjewelry]

09:26 AM on 06/30/2010

What I am weirded out by, however, is how conservative our new appointees are turning out to be. Obama is starting to look like a Trojan Horse - open up the doors on his belly and out swarm the minions to the corporate overlords.

[grossmont328]

05:29 PM on 07/01/2010

from what I can tell, the NRA supports the right of all adults with clean records to own firearms, and absolutely support keeping violent felons in prison, also--look up the Pink Pistols

[JJK]

09:21 AM on 06/30/2010

The more I watch these hearings and the more I watch the polite, knowledgeable, basically inoffensive and slightly to the left responses of Ms. Kagan, the more inclined I am to conclude the following:

1) The former Dean of Harvard Law School, Supreme Court Clerk and Solicitor General is and always has been a slam dunk confirmation.

2) The only true obstacle would be a filibuster, but the Republicans are not going to filibuster a nominee who was the best they could hope for while the Democrats still have a large majority in the Senate. Their threats of a filibuster are all about the "next" nominee, basically saying "Don't even think about sending us a Diane Wood, especially after we pick up several seats in November.

3) Justice Ginsberg has had major health problems and has just suffered the loss of her husband of many years. She is already 77 years old and will turn 80 a few weeks after Inauguration Day in 2013. She is far too politically astute to take the chance that her replacement would be named by a Republican and she is also too politically astute not to know that Obama's re-election is by no means a certainty. She will resign next Spring.

4) Obama basically choked on this nomination from a Progressive/Liberal point of view. This was his last chance to nominate and fight for a very Liberal Justice. He chose not to fight.

[KIVPossum]

09:31 AM on 06/30/2010

Agree with you across the board

[domokat]

09:12 AM on 06/30/2010

Someone who's never been a judge being nominated for the Supreme Court makes no sense. How about having someone who's never flown a plane, land it for you. What would exist is an accident waiting to happen, no matter how well regarded the person.

[KIVPossum]

09:36 AM on 06/30/2010

Maybe you should learn a tiny bit of US history. We have had 40 justices (of 111) who were not judges prior to appointment. 10 Chief Justices had not been judges, including Earl Warren and William Rehnquist (republican appointments).

[cybexg]

09:51 AM on 06/30/2010

40 of our past 110 S. Ct. justices were NOT judges before becoming S. Ct. Judges....

so...what was your point...oh wait...you have none...

[Dunkleberger Karl]

10:50 AM on 06/30/2010

b nice or b gone

[thetruthmustbetold]

08:38 AM on 06/30/2010

She is a handpicked ideologue who will vote for the left no matter what the law says.
After listening to her answers, she obviously thinks that government pretty much has dictatorial power over its citizens. This person has no business as a Supreme Court justice.

[very savvy]

08:56 AM on 06/30/2010

I'm not seeing evidence of that. Instead, I see a smart, educated, skillful and savvy woman who would take her work very seriously and be an asset to the court.

[rakrobn]

08:59 AM on 06/30/2010

Yes, unlike Scalia, Thomas, Roberts, and Alito, who aren't idealogues at all right, conservaretard? Oh wait, that's right, when they vote with the Right, they are "patriotic".

[dsws]

08:22 AM on 06/30/2010

Does "good precedent going forward" mean valid precedent, i.e. she's just saying it's law? Or was she actually saying that the law is better for having that precedent be part of it? The full context for the statement is not on the first page of google hits, anyway.

[in4success]

08:15 AM on 06/30/2010

Every Civil Liberty is Reduced to the Second Amendment -- Progressives Want "Direct Action" But a Disarmed Public: http://counterpunch.org/roberts06182010.html

--It is the conservatives who are armed, and they think the enemies are blacks, hispanics, pinko-liberal commies, and “terrorists.” Recently a friend told me that Obama was a marxist. Really, how did a marxist get elected with the support of the US military-security complex, the support of AIPAC, the insurance industry, Wall Street, Big Oil? How much money do marxists have with which to make campaign contributions? I mean, really. It is extraordinary that anyone could possibly believe that a stealth marxist could gain the White House. If he did, once he showed his colors, he would be assassinated, and Iran would be blamed, followed by an invasion.

If progressives like William Rivers PItt want direct action from Americans, they will have to give up their agenda of disarming the citizenry. Otherwise they are going to get people killed for nothing while the rest become Big Brother’s obedient servants, accepting a bare subsistence from “a caring government” in exchange for docility. ---