THE BLOG

Kagan and Guns

07/02/2010 01:54 pm ET | Updated May 25, 2011
  • Dennis A. Henigan Director, Legal and Policy Analysis, Campaign for Tobacco-Free Kids; former Vice President, Brady Center to Prevent Gun Violence

The National Rifle Association has done it again. Just as the gun lobby opposed the Supreme Court nomination of Justice Sotomayor and said it would "score the vote," yesterday, in a letter by NRA executives Wayne LaPierre and Chris Cox, the gun lobby stated its opposition to the nomination of Elena Kagan. It added the ominous assurance that "this vote will be considered in NRA's future candidate evaluations."

We know how this story will end. Justice Sotomayor was easily confirmed, with multiple Senators with previous "A" ratings from the NRA voting for her, from Montana Senators Baucus and Tester, to Senator Graham of South Carolina, to Senators Warner and Webb of Virginia. Nominee Kagan similarly will be confirmed, again with a host of NRA-supported Senators willing to cross the gun lobby to do what is good for the country. Perhaps some of them are starting to enjoy turning their backs on NRA extremism. Maybe they will do it more often.

The NRA accuses Kagan of a "clear hostility" to the Second Amendment, but for LaPierre and Cox that means she understands that our Constitution leaves ample room for reasonable gun restrictions that can save countless lives. In part, the NRA's letter is a temper tantrum reflecting the frustration of its leadership at the language the Supreme Court has included in its two landmark "gun rights" rulings in Heller and McDonald, implicitly rejecting an absolutist reading of the Second Amendment.

In both cases, the Court has given nodding approval to the continued constitutionality of a broad range of gun regulations limiting who can have guns, the conditions under which they can have them, what kinds of guns they can have, and where they can take them. The NRA, understandably, has said it fears nothing but a "practical defeat" may come of this week's ruling in McDonald v. City of Chicago applying the Second Amendment to states and localities.

The Brady Center to Prevent Gun Violence endorsed the Kagan nomination, in part because she was an active participant in designing and implementing the policies of the Clinton administration to curb gun crime and violence. She appeared to play a particularly important role in President Clinton's action to strengthen the ban -- first instituted by the George H.W. Bush administration -- on the importation of semi-automatic assault rifles. Her role in such matters, of course, drives the NRA crazy, because Kagan was part of an administration that was quite willing to stand up to the bullying tactics of the gun lobby to protect our citizens from gunfire. A refreshing thought, indeed.

For me, Kagan's most revealing testimony about the Second Amendment was her exchange with Senator Charles Grassley (R-Iowa) about her 1987 recommendation to Justice Marshall, when she was his law clerk, against granting certiorari in a case seeking review of a lower court ruling upholding the District of Columbia handgun ban. She told Marshall she was "not sympathetic" to the Second Amendment claim in that case.

When Grassley asked her why she was "not sympathetic," she responded that at the time:

20 years before Heller, the state of the law was very different. No court, not the Supreme Court and no appellate court had held that the Second Amendment protected individual rights and, indeed, none of the justices on the court at that time voted to take certiorari in that case.

She continued:

it had long been thought, starting from the Miller case [in 1939], that the Second Amendment did not protect such a right and... now the Heller decision had marked a very fundamental moment in the Court's jurisprudence with respect to the Second Amendment.

And thus Kagan made it clear that the Roberts Court, in its Heller ruling, had defied Supreme Court precedent (the 70-year-old Miller decision) -- a hallmark of judicial activism. Kagan recognized in her testimony that Heller "is the law" and "is entitled to all the precedent that any decision is entitled to... " No doubt the irony has not escaped her that Heller "is the law" only because it showed no respect whatsoever for established precedent.

The Heller and McDonald decisions both defied precedent (to say nothing of the plain text of the Second Amendment) in fashioning a new right to be armed in the home for self-defense. Fortunately, and paradoxically, both rulings establish the foundation for the continued constitutionality of gun control laws that will make it harder for dangerous people to get guns, while still allowing gun ownership by law-abiding and responsible adults.

Everything we know about Kagan suggests she will help to build on that foundation as a member of the Supreme Court. Nothing about her suggests she will be a friend to the gun lobby's Second Amendment extremism.

For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)