May 14, 2010 | Commentary on Legal Issues, Rule of Law

Kagan Bad On Guns

“President Obama’s nominee to the U.S. Supreme Court,” I wrote in HUMAN EVENTS on June 3, 2009, “owes the American people an explanation on her view of the 2nd Amendment.”

The nominee then was Sonia Sotomayor, who never provided an explanation.  Now, with the choice of Solicitor General Elena Kagan, President Obama is two for two in selecting Supreme Court nominees with an apparent strong hostility to the right of self-defense. 

And it’s only fair that Kagan now be held to the “Kagan Standard.” 
 
In the spring of 1995, Kagan wrote a book review of Stephen Carter’s The Confirmation Mess.  “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,” Kagan wrote.

Well, to maintain that standard, the Senate should demand Clinton-era memos written by Kagan, so lawmakers can understand her view of the 2nd Amendment.  After all, she was very much involved in many of the gun-control initiatives pushed by President Bill Clinton.  The Senate must “properly evaluate” Kagan and “appropriately” educate the public about any anti-gun views she holds. 

Of course, some documents from Kagan’s time in the Clinton Administration should remain privileged, to protect a President’s right to enjoy unfettered advice from his staff during deliberations.  But other official memos should be provided to senators and the American public. 

Instead, though, expect the administration to stonewall.  Kagan has no public record to speak of, and the President aims to keep her anti-gun views secret from the American public. 

Even without much of a paper trail, reporters have already found a “smoking gun” that indicates Kagan’s extensive anti-gun activism.  James Oliphant of the Los Angeles Times wrote May 10, “according to records at the William J. Clinton Presidential Library in Little Rock, Ark., she also drafted an executive order restricting the importation of certain semiautomatic assault rifles.”  Senators should study that executive order and the memos written during its preparation to understand if Kagan advised Clinton to infringe on the 2nd Amendment rights of Americans. 

There’s more evidence of hostility to gun rights on her part.  The Times also reports that “gun-control efforts were a hallmark of the Clinton Administration.  Kagan had already been involved in an executive order that required all federal law-enforcement officers to install locks on their weapons.”  Kagan also may have worked on legislation to effectively close gun shows.  “Those moves angered the National Rifle Association, which became even more alarmed in late 1998 when Clinton proposed closing the ‘gun show’ loophole that allowed firearms purchases without background checks.”

Her efforts to restrict the importation of some guns, mandate trigger-locks on federal law-enforcement officers’ guns and efforts to close gun shows are three issues that must be raised during Kagan’s Senate Judiciary Committee confirmation hearing.  Expect Kagan to dodge any direct questions on these gun-grabbing activities during the Clinton years, though, and run away from her own “Kagan Standard.” 

To indicate where the American people are on this, note that the Senate has voted six times on pro-gun legislation.  Large bipartisan majorities have voted for legislation authored by Sen. Tom Coburn (R.-Okla.) to allow guns in national parks, a bill by Sen. John Ensign (R.-Nev.) to restore 2nd Amendment rights to District of Columbia residents, two amendments by Sen. Robert Wicker (R.-Miss.) to allow law-abiding Amtrak passengers to securely transport firearms in checked baggage and legislation sponsored by Sen. John Thune (R.-S.D.) to set standards to allow individuals to conceal and carry a firearm over state lines.  An amendment from Sen. Richard Burr (R.-N.C. ) to protect the 2nd Amendment rights of veterans was the only one to garner less than a majority of the Senate.  

Of the five pieces of strong pro-gun legislation offered that pulled more than 50 votes, 15 Democrats voted pro-gun, including Max Baucus and Jon Tester of Montana, Evan Bayh of Indiana, Mark Begich of Alaska, Michael Bennet and Mark Udall of Colorado, Robert Casey of Pennsylvania, Byron Dorgan of North Dakota, Russ Feingold of Wisconsin, Kay Hagan of North Carolina, Mary Landrieu of Louisiana, Blanche Lincoln of Arkansas, Ben Nelson of Nebraska, Harry Reid of Nevada and Jim Webb of Virginia.  All of these Democrats voted for Sotomayor, but will they vote for a second justice who seems hostile to the 2nd Amendment?

There is also evidence that in 1987, Kagan said that she had no sympathy for the claim of a man that his 2nd Amendment rights were violated.  Bloomberg reports that “Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.”  In the wake of the District of Columbia v. Heller decision holding that the 2nd Amendment is an individual right, it is incumbent upon Senators to explore this statement of Kagan from her early career as a lawyer to see if her views have changed.

Senators should not allow Kagan to dodge questions about the right to self-defense that’s enshrined in the Constitution.  If Kagan tries to dodge questions on this or any other important issue, senators have the moral duty to extend debate until those questions are answered. Anything less would be Constitutional malpractice.

Brian Darling is director of U.S. Senate Relations at The Heritage Foundation.

About the Author

Brian Darling Senior Fellow for Government Studies
Government Studies

Related Issues: Legal Issues, Rule of Law

First appeared in Human Events