Kagan on the 2nd Amendment

[Pasifikawv]

During the confirmation hearings for Solicitor General:

"The Supreme Court held in District of Columbia v. Heller, that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation."

 

[H Richard]

I was wondering that same question this morning watching the news. This is good to know.

 

[walnutred]

I wonder if she has an a verifiable track record on supporting the Constitution or is she just parroting what she has been told people want to hear.

 

[oldman45]

It has to be remembered that these appointments are vetted. During the process, they are told what to say, what not to say and they are pretty much scripted in their speeches.

From what I have read, this lady is highly intelligent but there is little to rate her for in the way of any Second Amendment stand.

A sitting Justice renders decisions on how they interpret the law. She is going to have a strong liberal view of the laws of the land.

More troubling to me is this will not be the President's last appointment to the SCOTUS. He can certainly move the balance in the Court to a position that does not sit well with those of us here.

 

[Pasifikawv]

Just a few more quotes I found. Not sure of setting/dates at which each statements was made, but I think most were at her confirmation hearing for Solicitor General in 2008:

“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”

“There is no question, after Heller, that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation.’”

“It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act.”

“There is no federal constitutional right to same-sex marriage.”

Kagan has almost no paper trail and has never served as a judge. She has clerked for SCOTUS justices and argued cases on behalf of the United States before SCOTUS as Solicitor General.

However, representing the US Gov't as a lawyer and sitting on the bench are two different animals... Lawyers often argue cases they don't personally agree with - just ask Caj...

She is most famous for her role as Dean of Harvard Law. As Dean, she was responsible for implementing the university's policy that recruiters of any employer that engages in blantant discrimination should be barred from campus. The US Military- as an employer- ran afoul of Harvard's internal policy because of DADT. Harvard lost the battle and military recruiters were permitted on campus.

 

[walnutred]

On the one hand, it's a little disturbing that it has become Amateur Hour in DC the last few years. On the other hand the experienced politicians are the ones that got us into this mess in the first place. Who knows how it will turn out.

 

[bk43]

I wonder if she has an a verifiable track record on supporting the Constitution or is she just parroting what she has been told people want to hear.

Not much record but she has the strong support of ultra-conservative constitutional genius Ted Olson. He knows her well and views her as a strict constuctionist. That's all I need to know.

Bob

 

[Tom Servo]

He knows her well and views her as a strict constuctionist.

That's the impression I get as well. She leans a bit left, but she doesn't seem inclined to distort the Constitution to get there.

In all honesty, even if we were to get a flame-breathing liberal, we're still ahead. The problem with Stevens wasn't just that he was a liberal, it was that he was very influential across the spectrum.

The man was a consensus-builder and a shrewd negotiator, and he was frequently able to sway Kennedy to his side. Kagan will not have that ability, and Kennedy will likely begin siding with the conservative bloc more often from here out.

If Kagan does come out on our side (and I'm still unsure that Sotomayor won't), all the better. But the worst-case scenario will be that not much changes.

 

[ENGINE18]

SCOTUS Justice who? Seem like all those in power in DC are, oh, never mind. One can only hope!

 

[38-44HD45]

My view, as a practicing lawyer for 22 years and a Constitutionalist/Libertarian, is that she can't be much, if any, worse than Stevens. If she meant what she said in confirmation hearings, I'm wondering how in hell she wound up in barry sotelo's cabinet, much less as a SC nominee. For me, it'll have to be a "believe it when I see it" situation. Since she's not sat a bench and written case law, she is, as the press has said, a wild card.

By the way, "strict constructionists" are not necessarily always our friends. Try and find a right of privacy in the Constitution; it's not there, and a strict constructionist wouldn't have ever found that such an animal exists. The term is frequently misused, as I myself misused it before I went to law school. Individual rights are not expanded by strict constructionists, except sometimes when we're discussing construction of statutes, which is different from construction of constitutional provisions.

Sotomayor come down on our side? Naaaah, ain't gonna happen.

 

[Tom Servo]

By the way, "strict constructionists" are not necessarily always our friends. Try and find a right of privacy in the Constitution; it's not there, and a strict constructionist wouldn't have ever found that such an animal exists.

A very good point. I've been reading through her testimony when she was being confirmed for Solicitor General, and there are some interesting, and encouraging, exchanges.

(The original transcript is here, and it is a long pdf. The relevant stuff starts at p. 304.)

Do you agree with the view that the courts, rather than the elected branches, should take the lead in creating a more just society?

Answer: I do not agree with this view. I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so. (…) But in these cases as well, I think an important consideration for the office to take into account is the degree to which the courts, by staying their hand, can encourage experimentation and healthy debate among the states and their citizens. (pp. 305-306)

What principles of constitutional interpretation help you to begin your analysis of whether a particular statute infringes upon some individual right? Is there any room in constitutional interpretation for the judge’s own values or beliefs?

Answer: I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure, and precedent. Relating these views to the position for which I am nominated, I think these kinds of arguments also are most successful in advocacy before the courts in constitutional cases. (p. 306)

As far as RKBA, take from this what you will:

The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment. (...) I can say, however, that I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation.” (...) there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation. (pp. 318-319)

I still find it interesting that she did not file a brief for McDonald, and I wonder if that's because of some political friction with the administration. Still, I'd much rather have a Justice who looks to "constitutional text, history, structure, and precedent" than one who simply mouths all the right political platitudes.

 

[Harrison]

Not much record but she has the strong support of ultra-conservative constitutional genius Ted Olson. He knows her well and views her as a strict constuctionist. That's all I need to know.

Bob

Our president knows this lady personaly. You can be sure that if she had one drop of conservative blood running through her veins he would not have nominated her. Supreme Court nominees have been known to say whatever is necessary to get through the senate process. Once they are in, they can rule however they want, and there is nothing anyone can do about it.

 

[Cyrano]

On TV today, I saw Abner Mikva (remember him?) praising Kagan to the skies. Makes me wonder what he knows and we don't.

 

[paramedic192]

I don't think we can take much from Kagan's statements made during her confirmation for Solicitor General (SG). Like her answers will be during the upcoming hearings for the Supreme Court, she understood what her role would be as Solicitor General; that is how she answered the questions, and because she knows the powers and responsibilities of a Supreme Court Justice, her answers during this round of hearings will be aimed at securing her seat on the bench. All we know right now is that in her role as SG, her work was carried out at the bidding of the President. When we get right down to it, as SC, Kagan was essentially President Obama's employee, and as all good government / political employees do, she did what her boss told her to. This will have no bearing on her actions if confirmed to the Supreme Court.

Several people have commented that Kagan can't be any worse than Justice Stevens, or that at worst, her confirmation will create a wash as far as the second amendment. I must respectfully disagree with these statements. While these statements may be true for the next couple of years, eventually another Justice will retire. Kagan is a young woman who has the potential to occupy the bench for the next half century. If we are intent on ensuring and fostering second amendment rights, then we need to press our elected officials to nominate and confirm justices who we believe share our views on the second amendment. Settling for someone who will be a wash, or who cannot be worse than the last guy, is in my opinion, paramount to joining the Brady Campaign.

I am not opposed to Elena Kagan simply because she does not have any judicial experience, I do not believe this is a requisite; however, I am opposed to her confirmation because we know nothing about her views on just about everything. She has been published very little and there is just not enough information out there to tell us about her views on important issues. I am neither an Obama opponent or proponent, but in my opinion, one of two things is going on her: Either the President is being foolish by picking someone who will make the easiest confirmation and create the least hassle for him, or President Obama is pulling a fast one on the American people by nominating someone whose opinions he knows well, but whose opinions aren't known to the general public. Unfortunately, I tend to lean towards the latter.

I'd be interested to hear what others think about the issue of Kagan being a wash and it's impact on the current and future court.

Kyle Williams

 

[tomhenry]

You guys need to get your head out of the clouds. This woman is a rank liberal and will bode ill for gun owners. The OP's reference conveniently stops short of essential information.

What are Elena Kagan's views on Second Amendment?


When asked if she believed Heller was "rightly decided," she answered:

I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided.

Note: she's withholding her personal sentiments re guns. Guaranteed she'll rule as a rabid liberal in any future case that's presented.

She also said,

there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.

Read the above very carefully. The second doesn't provide unlimited protection against "regulation?" It's that kind of vague wording that enable tyrants to impose a great deal upon their servants. Ask a kalifornian.

She's bad news for gun owners.

 

[bk43]

Read the above very carefully. The second doesn't provide unlimited protection against "regulation?"

I believe she's correct as that is what Heller said. Heller ruled that the 2nd is an individual right but that reasonable regulation was not unconstitutional. The Court just didn't really explore what constitutes reasonable regulation. Those issues are also going through the courts now so she shouldn't really even be commenting on this.

I'm still with Ted Olson on this one. He knows Kagan and the Constitution very well and he supports her for the Court.

Bob

 

[tomhenry]

I'm still with Ted Olson on this one. He knows Kagan and the Constitution very well and he supports her for the Court.
Bob

You're naive. Our foreign born socialist rank liberal president is not going to appoint anybody who is not like minded. Time will clearly show she's no friend to conservatives or to gun owners.

 

[semperfi71]

“There is no question, after Heller, that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation.’”

"...in case of confrontation."????

I do not believe the Constitution, or its creators meant that to be in any shape or form. I think the Second Amendment is quite clear...except to those who choose to misinterpret it.

 

[38-44HD45]

“There is no question, after Heller, that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation.’”

"...in case of confrontation."????

I do not believe the Constitution, or its creators meant that to be in any shape or form. I think the Second Amendment is quite clear...except to those who choose to misinterpret it.

Proves my point, Semperfi. If she were a strict constructionist OR a constitutionalist, she'd have not added any new, invisible, imagined language, ESPECIALLY not restrictive language.

 

[ENGINE18]

Just as I thought! Where are all of these socialists from?