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navyinrwanda
05-13-2010, 2:07 PM
Elena Kagan gave a more “nuanced” view of Heller and the Second Amendment in the following response to a letter of March 14, 2009 from Senator Arlen Spector during her confirmation hearings to become Solicitor General:


Question: Do you believe that the Supreme Court's Second Amendment decision in District of Columbia v. Heller was rightly decided?

Answer: 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 — or, as the Court stated, “to possess and carry weapons in case of confrontation.” In light of this individual right, the Court struck down a statute banning handgun possession in the home. At the same time, the Court stated that “some measures regulating firearms” would comport with the Second Amendment constitutional right. Essentially, the Court made clear that the right to bear arms should be understood like any other constitutional right (the Court, for example, offered an analogy to the First Amendment) as providing strong but not unlimited protection. The Court based its holding principally on an extensive analysis of the original meaning and history of the Amendment, which the dissents contested.

Although I have never written about or taught the Second Amendment, I have read a fair bit of the scholarship that has appeared in recent years regarding the original meaning and history of the Second Amendment. I have always found this scholarship singularly difficult to evaluate. Both sides (that is, the individual rights view and the collective rights view) present cogent and sometimes powerful arguments, and I have come away thinking that immersion in the primary sources, which I have never attempted, would be necessary to choose between them with any degree of confidence. My instinctive response to reading the opinions in Heller last summer was much the same. This is not to say that the questions at issue are incapable of resolution; to the contrary, I have no doubt that the textual and historical questions with which the opinions wrestle are fundamental to appropriate constitutional analysis. It is only to say that I have not done the work required. I therefore have no reason to believe that the Court's analysis was faulty.

Regardless, if confirmed as Solicitor General, I would view Heller — and its fundamental understanding that the Second Amendment guarantees an individual right to keep and bear arms — as settled law, and I would fully accept the Courts' determination. The occasions on which the Solicitor General asks the Court to reverse a decision are appropriately few and far between, and I cannot now see how any of the reasons that are typically given for doing so would be applicable in this context. At the same time, the Solicitor General's office likely would continue to defend against constitutional challenge a variety of federal regulations involving firearms. The Solicitor General's office filed an amicus brief in Heller which at once advocated the individual rights view of the Second Amendment and argued that “[n]othing in the Second Amendment properly understood... calls for invalidation of the numerous federal laws regulating firearms.” In light of the Solicitor General's responsibility to defend federal legislation, which is fundamental to its role of representing the long-term interests of the United States, I too would apply the usual presumption of constitutionality to federal firearms regulation.

mbarnes
05-13-2010, 2:12 PM
What's wrong with answering yes or no?

tiki
05-13-2010, 2:44 PM
What's wrong with answering yes or no?

Nothing. Unless, of course, you are involved in politics.

bigmike82
05-13-2010, 3:00 PM
Looks to me that she answered yes, but with a caveat that she's not an expert in the matter. Sounds reasonable.

"I therefore have no reason to believe that the Court's analysis was faulty."

More importantly...

"I would view Heller — and its fundamental understanding that the Second Amendment guarantees an individual right to keep and bear arms — as settled law, and I would fully accept the Courts' determination."

Texas Boy
05-13-2010, 3:18 PM
So far I've been fairly positive on Kagan - she appears to be a good scholar and not bent on a political ideology.

However, I have some concern over the above. As a solicitor general, it was absolutely the correct answer. As a supreme court justice, it begs the question - if the opportunity to re-visit Heller came up, what would she do? Up until this point I assumed she concurred with Heller, but now I'm not so certain.

Dr Rockso
05-13-2010, 3:38 PM
Frankly that's a pretty good and thorough answer, IMO. Can you imagine Cass Sunstein answering that question?

bulgron
05-13-2010, 3:53 PM
So far I've been fairly positive on Kagan - she appears to be a good scholar and not bent on a political ideology.

However, I have some concern over the above. As a solicitor general, it was absolutely the correct answer. As a supreme court justice, it begs the question - if the opportunity to re-visit Heller came up, what would she do? Up until this point I assumed she concurred with Heller, but now I'm not so certain.

There will be confirmation hearings. One hopes that one or more pro-gun Senators will ask her about her opinion of gun rights from the point of view of a supreme court justice.

Super Spy
05-13-2010, 3:59 PM
I hope she's good on The 2nd Amendment when the time comes......Way to often liberal's interpret "A well regulated Militia" to mean "Not you and Me"

steadyrock
05-13-2010, 4:09 PM
At the same time, the Solicitor General's office likely would continue to defend against constitutional challenge a variety of federal regulations involving firearms. The Solicitor General's office filed an amicus brief in Heller which at once advocated the individual rights view of the Second Amendment and argued that “[n]othing in the Second Amendment properly understood... calls for invalidation of the numerous federal laws regulating firearms.” In light of the Solicitor General's responsibility to defend federal legislation, which is fundamental to its role of representing the long-term interests of the United States, I too would apply the usual presumption of constitutionality to federal firearms regulation.

So she is neutral on Heller but presumptively pro-gun control. Not impressive.

otteray
05-13-2010, 4:13 PM
Elena Kagan gave a more “nuanced” view of Heller and the Second Amendment in the following response to a letter of March 14, 2009 from Senator Arlen Spector during her confirmation hearings to become Solicitor General:


The Solicitor General's office filed an amicus brief in Heller which at once advocated the individual rights view of the Second Amendment and argued that “[n]othing in the Second Amendment properly understood... calls for invalidation of the numerous federal laws regulating firearms.” In light of the Solicitor General's responsibility to defend federal legislation, which is fundamental to its role of representing the long-term interests of the United States, I too would apply the usual presumption of constitutionality to federal firearms regulation.

I read this as no favor to the pro gun crowd.
Or am I confused by the lawyer double-speak?

dfletcher
05-13-2010, 4:14 PM
"In light of the Solicitor General's responsibility to defend federal legislation, which is fundamental to its role of representing the long-term interests of the United States, I too would apply the usual presumption of constitutionality to federal firearms regulation."

The final line of her answer - doesn't this essentially mean "if it's a federal law I presume it is legal"?

BTW, anyone catch the video of her in Sen Hatch's office? He pointed out his NRA Man of The Year award and a flintlock which she politely described as "gorgeous".

FWIW, I see danger developing if the boys in the Senate seem to beat up on the dowdy but lovable little lady - I think she's got pretty good public "likeability" going for her.

Dr Rockso
05-13-2010, 4:23 PM
So she is neutral on Heller but presumptively pro-gun control. Not impressive.

At the same time, the Court stated that “some measures regulating firearms” would comport with the Second Amendment constitutional right. Essentially, the Court made clear that the right to bear arms should be understood like any other constitutional right (the Court, for example, offered an analogy to the First Amendment) as providing strong but not unlimited protection.

If she means what she's saying here it's the best that we can realistically hope for, and it would be an enormous improvement over the current state of things.

steadyrock
05-13-2010, 4:37 PM
If she means what she's saying here it's the best that we can realistically hope for, and it would be an enormous improvement over the current state of things.

How is it an improvement over the current state of things? She is saying in very clear terms that she presumptively supports all manner of Federal gun control, just because. AWB2?

Dr Rockso
05-13-2010, 4:41 PM
How is it an improvement over the current state of things? She is saying in very clear terms that she presumptively supports all manner of Federal gun control, just because. AWB2?
Because that was her job as solicitor general.

If she really believes that, as she claimed, 2A rights are identical to other constitutional rights then as a justice she'd be forced to apply a standard of strict scrutiny. Very few of CA's gun laws could survive strict scrutiny.

steadyrock
05-13-2010, 4:45 PM
Because that was her job as solicitor general.

If she really believes that, as she claimed, 2A rights are identical to other constitutional rights then as a justice she'd be forced to apply a standard of strict scrutiny. Very few of CA's gun laws could survive strict scrutiny.

I can see your point, but I'm skeptical about the if. I don't think it is coincidental that she has no judicial record.

cmaynes
05-13-2010, 4:47 PM
So she is neutral on Heller but presumptively pro-gun control. Not impressive.

yeah- How do you think John Paul Stevens would have done with that? thats who she would replace.


lets not let the perfect be the enemy of the good here....

tuolumnejim
05-13-2010, 4:52 PM
Ah the easily fooled. :cool: She said what she wanted them to hear and nothing more, a definite anti.

1JimMarch
05-13-2010, 4:52 PM
The key to me is the voluntary inclusion of the word "carry". That's kinda cool. A common trick of hardcore gun-grabbers these days is to talk about Heller protecting an in-home right only. The worst try to claim that Heller actually bars carry as a constitutional right as in-home carry was the only thing discussed in the holding.

gbp
05-13-2010, 4:53 PM
non committal-committal
don't blame me..i left myself wiggle room to get out of anything and everything

this is not what we need
but it is what we can expect out of the current admin

cmaynes
05-13-2010, 4:56 PM
Ah the easily fooled. :cool: She said what she wanted them to hear and nothing more, a definite anti.

perhaps- but I will take the non-commital over the Bloomberg. To each his own though - but I dont think a better choice for guns rights is going to happen on this one, and I prefer to see things get incrementally better.

Listen up too- not all Republicans are pro-gun rights. just sayin'. Check Meg Whitman on that one.

gorblimey
05-13-2010, 4:58 PM
Frankly that's a pretty good and thorough answer, IMO. Can you imagine Cass Sunstein answering that question?


The implication was that, once she corrects her lack of immersion into primary sources, she will come to the informed determination that this is a "collective right". (To be used for the defense of a collective farm, no doubt.)

Dr Rockso
05-13-2010, 5:05 PM
Ah the easily fooled. :cool: She said what she wanted them to hear and nothing more, a definite anti.

If her only objective was to BS she could have easily just said 'blah blah blah Heller only protects firearms in the home we don't want to take your hunting rifle nobody needs an uzi to shoot ducks'. The fact that she seems to have put some actual thought into her response is way better than I expected from an Obama nominee.

non committal-committal
don't blame me..i left myself wiggle room to get out of anything and everything

this is not what we need
but it is what we can expect out of the current admin
The choice isn't 'Obama either nominates Kagan or he clones Scalia'. He could have easily picked an openly anti-gun justice, and the R's couldn't have stopped it.

The implication was that, once she corrects her lack of immersion into primary sources, she will come to the informed determination that this is a "collective right". (To be used for the defense of a collective farm, no doubt.)

Maybe, but I doubt it. None of the Heller dissents tried to overtly pull that crap, and I have to think that Stevens is wayyy more openly anti than this lady. It's just not a historically defensible position (and Steven's dissent made him look silly enough as it was).

navyinrwanda
05-13-2010, 5:33 PM
The key to me is the voluntary inclusion of the word "carry". That's kinda cool. A common trick of hardcore gun-grabbers these days is to talk about Heller protecting an in-home right only. The worst try to claim that Heller actually bars carry as a constitutional right as in-home carry was the only thing discussed in the holding.
Pulling a quote from Heller that includes the word “carry” doesn't mean much. It's the same stock quote she's used elsewhere to encapsulate the holding of Heller.

The second paragraph in the quote is telling: she's simply saying that both interpretations — individual or collective — seemed, on their face, reasonable to her. As Solicitor General, she would simply respect precedent, which is not something that Supreme Court justices are required to do.

Also, she broadly interprets Heller's “presumptively lawful” language to cover all current Federal statutes and regulations. Even a Solicitor General is not obligated to categorically assume that everything the Federal government does is constitutional...

Yes, Kagan's probably the best nominee we can hope for. If she's not confirmed, then the likelihood is that her replacement would be much worse (unless something totally unexpected derails her nomination).

But the fact that her confirmation is a fait accompli doesn't mean that we shouldn't continue to look at her record. And it doesn't mean that she shouldn't be questioned, both by the public and by the Senate.

Meplat
05-13-2010, 6:17 PM
This is as good as it is going to get folks. Obama is not the smartest man in the room, any room, unless it is a very small room. Other presidents have been fooled by their nominees; let’s just hope she becomes Obama’s folly. No track record, no way to know yet. Hope springs eternal!

I kinda like the goofy looking little broad so far.

RickD6023
05-13-2010, 8:35 PM
In this political game, never criticize your predecessors but agree with what they decided until you get in then LOOK OUT!

jdberger
05-13-2010, 9:04 PM
On another note, I'm not a big fan of people who've, from an early age, made it their life's ambition to achieve a political position. It makes me wonder if they've spent all that time calculating how everything the do, say and who they meet will help them achieve that goal.

Don't get me wrong - I love a good narcissist - just not an ambitious one. :cool2:

mbrown
05-13-2010, 9:31 PM
I've been studying history and politics intently for more than 20 years. Please trust me when I say that in her heart she is anti-gun. Anything she has said or written on the subject up till now is calculated for the consumption of others. They are designed to make her appear reasonable, judicious, and moderate. Don't fall for it! If she had been on the court when Heller was decided, she wouldn't have voted our way.

Watch this video of her downright adoration for Obama:

http://www.youtube.com/watch?v=QWV6YTrWthE&feature=player_embedded

This pretty much proves she is hard left in her political ideology. Show me a hard lefty anywhere who supports gun rights. Llike Ginsburg and Sotomayor, she is not our friend. If she gets on the court and has the opportunity to hear 2A cases, it won't go well for us.

berto
05-13-2010, 9:41 PM
It doesn't matter if she's the biggest anti in history and wants to personally go door to door with Feinstein. Right now there's nothing on her. Unless she suffers a serious brain fart during the hearings there won't be anything on her and it will be very difficult to wrangle the votes necessary to defeat the nomination on the floor. The political capital required to defeat Kagan is better saved for a future fight where the actual balance of the court might be at issue. The math at the end of this one remains 5-4, for the most part, regardless of whether Kagan or some other Obama nominee ends up replacing Stevens.

POLICESTATE
05-13-2010, 9:49 PM
Some may consider her response a bit superfluous, hell even has lots of BS in it. But I think you have to write like that in Washington regardless of who you are, elected representatives from Congress to the Oval Office only speak and understand BS.

I think this also explains why they never seem to listen to the people, we speak in plain American English. They speak in Superfluous American Bulls***. Maybe if we speak the same language we'll finally get some results from them. Obviously plain American English is beyond the capability of an elected representative to learn, but I'm fairly certain that Superfluous American BS is pretty easy to pick up and use. Like Spanish right?

My translation of what Kagan says in her response, in plain American English, is that she has a modern understand of 2A but no foundational understanding of it. So while she considers SCOTUS decision to confer and individual right and respects the ruling, she hasn't really made up her own mind in the matter.

Uriah02
05-13-2010, 9:55 PM
It sounds promising, a rather astute way of saying "I trust the court" and "I haven't done enough research personally for a strong determination". I am pleased that she focuses on the constitutionality of the issue and nothing more, based on that response.
On the flip side, it may be a cover for her. I haven't detected any history she has to be anti-RKBA other than President Obama nominating her.

GunSlinga
05-13-2010, 11:40 PM
See this commentary dated May 14, 2010, by Brian Darling of the Heritage Foundation re: Kagan's record on Second Amendment issues:

http://www.humanevents.com/article.php?id=36973

JanG
05-14-2010, 12:03 AM
i think she answered the question in the most political way possible... both yes and no

dfletcher
05-14-2010, 9:43 AM
Pulling a quote from Heller that includes the word “carry” doesn't mean much. It's the same stock quote she's used elsewhere to encapsulate the holding of Heller.

The second paragraph in the quote is telling: she's simply saying that both interpretations — individual or collective — seemed, on their face, reasonable to her. As Solicitor General, she would simply respect precedent, which is not something that Supreme Court justices are required to do.



Agreed - and if Heller had been decided the other way she could still give the same answer regarding precedent - it's "settled law" and collective rights would have her support.

ned946
05-14-2010, 9:51 AM
"A well regulated Militia" to mean "Not you and Me"

Just so I'm clear, remind me why it was worded that way. It's always given me some trouble....

Fyathyrio
05-14-2010, 12:12 PM
I still think this answer doesn't reveal her true feelings on the subject, and I'm not optimistic. All she's basically saying is she supports the current law. This is no different then a pro life candidate saying he supports Roe v. Wade as it's the current law. As noted, there's no real body of work to determine her intent. I feel the memo's, executive orders, and legislation she's helped draft in the past were just part of her job to create the product asked for...and not really telling about her personal thoughts on 2A issues.

berto
05-14-2010, 1:30 PM
Just so I'm clear, remind me why it was worded that way. It's always given me some trouble....

No standing army to protect the frontier, among other things, so the citizenry was responsible. I've read that the meaning of "regulated" was something closer to "practiced" than "controlled" when the Second was written but haven't seen anything definitive on that point.

mtptwo
05-14-2010, 1:46 PM
What's wrong with answering yes or no?

Because the world isn't just yes or no?

She gave an excellent answer: I haven't done the research to conclude that Heller wasn't a bad decision, but I consider it settled law.

MindBuilder
05-14-2010, 2:32 PM
If a person is undecided after having seen both sides of the debate when the evidence for one side is overwhelming, it means the person is highly biased, to spite holding a neutral position.

Sinixstar
05-14-2010, 4:15 PM
What's wrong with answering yes or no?

Because a simple 'yes' or 'no' would not really demonstrate much level of thought on the subject would it?

This isn't the 3rd grade. These are serious questions, she's nominated for a serious job. You want to see somebody who "shows their work" so to speak.

Sinixstar
05-14-2010, 4:18 PM
No standing army to protect the frontier, among other things, so the citizenry was responsible. I've read that the meaning of "regulated" was something closer to "practiced" than "controlled" when the Second was written but haven't seen anything definitive on that point.

Correct.
That's what's so funny when you hear people saying "the constitution says well regulated, that means we can pass whatever regulations we want on gun ownership".

Well, not when you look at the 18th century meaning of the term "well regulated" - which does mean trained, practiced, prepared, etc.

GuyW
05-14-2010, 4:20 PM
Correct.
That's what's so funny when you hear people saying "the constitution says well regulated, that means we can pass whatever regulations we want on gun ownership".

Well, not when you look at the 18th century meaning of the term "well regulated" - which does mean trained, practiced, prepared, etc.

It's still common use of "well regulated" when talking about adjusting a mechanical clock to properly keep the time.

Hence, "well-regulated" means "properly functioning".
.

glbtrottr
05-14-2010, 4:43 PM
She's another one of these "women" who as a Latina (or gay) has a better amount of life experience and can arrive at a far better judgment than any white man can.

Why shouldn't we trust her judgment to be better than any of us, particularly when guns are so vile and kill so many people? :)

When our friends and family vote for hope and change, and we find it politically correct to keep our opinions to ourselves and be polite, the results are evident. We get non American Citizens as our President afoul of our laws, who destabilize our nation, reduce or eliminate our ability to defend our nation against others, lower the quality of our lives in exchange for votes, promote a more liberalized society, and try to destroy the very freedom we live under.

five.five-six
05-14-2010, 4:46 PM
So she is neutral on Heller but presumptively pro-gun control. Not impressive.


I'm thinking she is the best we can hope for with obummer