A Vote for Kagan

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A Vote for Kagan Is a Vote to Take Away Your Guns

by John R. Lott, Jr. by John R. Lott, Jr. Recently by John R. Lott, Jr.: Think Tough Gun Laws Keep EuropeansSafe? ThinkAgain…

As the number of President Obama’s judicial appointments and nominations continues to grow, it appears pretty clear that he does not care about the individual’s right to self-defense. We can tell this by looking at the record of his two Supreme Court picks but also by examining the long list of lower-level judicial appointments. All of these reflect a pattern of favoring person who have written anti-gun opinions.

Elena Kagan, Obama’s newest Supreme Court nominee, fits this mold. The Supreme Court has only been very narrowly supportive of an individual’s right to bear arms. For example, there was the 5-4 vote in the Heller decision when it struck down Washington, D.C.’s handgun ban in 2008 and a similar 5-4 vote in on Monday in the decision to strike down Chicago’s ban in “McDonald.”

In the future, Kagan’s opinion could be crucial: If Justice Kennedy or one of the four more conservative members of the court were to retire or die, her vote could easily tip the balance on gun rights.

Of course, Obama’s judicial nominations go against his 2008 campaign promises about guns. During the presidential campaign, then-Senator Obama, despite his past support for gun bans, assured voters that he had always supported the Second Amendment as an individual right:

"I have said consistently that I believe that the Second Amendment is an individual right, and that was the essential decision that the Supreme Court came down on."

With those words in mind, alarm bells should have gone off during Elena Kagan’s confirmation testimony to the Senate Judiciary Committee on Tuesday. Here’s what Kagan told Sen. Charles Grassley (R-Iowa):

It has long been thought, starting from the “Miller” case, that the Second Amendment did not protect such a right. . . . Now the Heller decision has marked a very fundamental moment in the court’s jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein there is not question going forward that ‘Heller’ is the law, that it is entitled to all the precedent that any decision is entitled to and that is true to the ‘McDonald’ case as well…

There are two big problems with Kagan’s remarks: she inaccurately describes the 1939 "Miller" case and her claims to follow stare decisis are meaningless.

The "Miller" decision said that the Second Amendment protected civilian use of firearms that are used in the military and that a sawed off shotgun wasn’t a military weapon. But the court went no farther in explaining the right. There was no discussion of the modern liberal view of a “collective right.” The very short opinion didn’t say if there was an individual right to own military weapons. The issues were never addressed.

However, Kagan’s argument is precisely what Justice Stevens wrote about when he and the other liberal Supreme Court justices opposed “Heller.” They claimed that Miller was the real precedent and that there was no individual right to own a gun. Stevens asserted that “Heller” and “McDonald” were the real aberrations from court precedent.

Kagan’s statement surely shows that she also believes the “Heller” decision broke with past precedent. Saying that “Heller” and “McDonald” are “entitled to all the precedent that any decision is entitled to” also means that her strained interpretation of Miller is entitled to the same precedent.

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John Lott [send him mail] is the author of Freedomnomics: Why the Free Market Works and Other Half-Baked Theories Don’t and The Bias Against Guns (Regnery 2003).

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