Distorting Elena Kagan's Second Amendment Record


Doug Kendall, president of the liberal Constitutional Accountability Center, has a long post explaining why conservative legal activist Ken Klukowski is wrong about Supreme Court nominee Elena Kagan and the Second Amendment. At issue is a recent Townhall column where Klukowski asserted that Kagan's "shocking" decision as solicitor general not to file a brief in the gun rights case McDonald v. Chicago reveals Kagan's deep hostility to the Second Amendment. Yet as Kendall explains:

I joined McDonald's lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago….

I think the federal government does have a very important interest in making sure that constitutional rights, including the Second Amendment, apply against the states in the same manner that they apply against the federal government.  I urged the United States to take that position. But I was not surprised—given the tradition of [the solicitor general] not weighing in on incorporation cases, the fact that the United States was not a party, and the fact that this case originated from Chicago—that the United States chose to stay on the sidelines.  General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan's views on the Second Amendment.

Kagan decided not to file a brief in a case where the federal government had no direct interest and where there was no federal law at stake. It's really quite a stretch to equate this with hostility to the Second Amendment.

Besides, as Kendall notes, Klukowski has his own record of constitutional infidelity to answer for:

Finally, it bears noting that Klukowski himself filed a brief in McDonald assailing Mr. McDonald's primary and strongest textual argument for incorporation: the argument that the Court should incorporate the Second Amendment into the Privileges or Immunities Clause of the Fourteenth  Amendment.  Mr. Klukowski supports his argument against incorporating in the manner intended by the framers of the Fourteenth Amendment out of policy concerns.   In this breathless piece in the Washington Times, Klukowski argued that restoring the original meaning of the Fourteenth Amendment could lead to the "unhinging of the American culture."  Thus, if anyone undermined the constitutional basis for incorporation in McDonald, it's not Elena Kagan, it is Ken Klukowski himself.

For more on the debate over the Chicago gun case and the 14th Amendment, see here and here.

(Via Josh Blackman)

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  1. She’s going to replace Stevens, who was hardly an NRA favorite. Stevens dissented in the DC Gun Ban case. Kagan couldn’t be any worse for 2nd amendment rights then who she is replacing. No point in getting worked up about it.

  2. Of the lines of defense of our constitutional right, Solicitor General comes just before the Postmaster General.

    And how the hell do you “unhinging of the American culture”?

  3. What are the “privileges and immunities” that the 14th amendment protects, and extends to former slaves? Who decides? That is the fear of both sides of the argument. The SCT decides. And the ever-changing makeup of that court makes that a very dicey issue.

  4. Fair point in the post.

    Given her background, associations, and history, I just pretty much assume she’s hostile to the Second Amendment. Proposed line of questioning:

    Ms. Kagan, the Second Amendment states that “the right of the people to keep and bear arms shall not be infringed.” Do you regard a prohibition on ownership of handguns to be an infringement?

    Are handguns not “arms”?

    Is a prohibition not an infringement?

    Do you regard the right to keep and bear arms as a “privilege and immunity” of the people of the United States?

    If a right specifically protected by the Bill of Rights is not a privilege and immunity, what is?

    Oh, I understand. You regard the Second Amendment as setting forth a collective right. Do you regard other rights of the “the people” as collective rights? Which ones?

    Ms. Kagan, do you regard yourself as fluent in the English language?

    1. If a right specifically protected by the Bill of Rights is not a privilege and immunity, what is?

      You do not want our state court systems to have to provide a jury trial for every civil suit involving over $20, do you?

      1. Hehehe…

        The specification of fixed monetary values in the document sure doesn’t play well with soft currency.

        At the time that was written $20 was a considerable sum: enough capital to start a business or buy a bit of land. I certainly want jury trials for disputes involving that much capital.

        What to do about the “twenty dollars” in the text is tricky, though. Seems like a trivial matter for invoking the amendment process, but anything else (such as a “equivalent buying power” approach) suggests that it’s fair to “interpret” away bits of the document that are judged to be inconvenient.

  5. Kagan decided not to file a brief in a case where the federal government had no direct interest and where there was no federal law at stake. It’s really quite a stretch to equate this with hostility to the Second Amendment.

    Not that she’s not a gun-hatin’, softball-playin’ bolchevist, but at least, the above does not represent open hostility to the 2nd Amendment by any stretch of the imagination.

  6. …the federal government had no direct interest…

    I fail to understand how the federal government has no direct in enforcing adherence to the US constitution. Well, except that the constitution is almost entirely an infringement of the government’s continued overreach of its proper role.

  7. Not a legal scholar, but the biggest question isn’t even addressed: how frequently does the Solicitor General file an amicus brief on behalf of incorporation in cases where the federal government is not a party? If it’s common for this to happen, then Kagan’s refusal is more telling.

  8. RC is right. I’m sure she’s as open about her hostility to the 2nd amendment as she is of her sexuality. But I don’t give a rat’s ass about the latter. She won’t be in a position to make me be gay. She will be, potentially, in a position to take my guns away. So, I’d like to know.

    1. I know, I know. It’s bad form to make blanket assumptions about a nominee’s views, but she is an Obama crony and she does seem to have taken pains to hide her views and Obama has bypassed the normal Senate confirmation process to fill his administration with some pretty fringe characters and Obama has displayed very statist tendencies in his policies.

  9. “I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan…”

    Memo to Doug Kendall:

    The Solicitor General is not an real General.


    Kagan, as a law clerk for Thurgood Marshall in 1987 recommended against an appeal in a DC gun case eerily similar to the Heller case. Her reasoning for denying the appeal was, “I am not sympathetic.”
    During the Clinton Administration, she was the central architect of Clinton’s many attempts to expand gun control regulation. Her hostility to the second amendment is quite well established, as can be seen by anybody perusing her papers at the Clinton Library.

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