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)