In what is probably the most important Second Amendment case in Supreme Court history, the Court today held that the “right of the people to keep and bear Arms” cannot be infringed by the states. In 2008 in District of Columbia v. Heller, the Court for the first time held that the right to bear arms was an individual right. But that decision, which struck down a virtual ban on handguns and a requirement that rifles and shotguns had to be kept “unloaded and disassembled or bound by a trigger lock” in the District of Columbia, applied only to the federal government because the District is a federal enclave. What had never been decided before today’s decision in McDonald v. Chicago was whether the protection of the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause to apply to state and local governments.
In a long-awaited decision on the final day of the Supreme Court’s term, a 5-4 majority of the Court in an opinion written by Justice Alito overturned the City of Chicago’s regulations on firearms. These regulations included a ban on handguns, a requirement that other guns be registered prior to their acquisition (which is impractical in many cases), a burdensome annual reregistration requirement and annual fee, and a punitive provision that would bar the reregistration of a gun once its registration expired.
The opinion holds that the right to keep and bear arms is among the most fundamental rights necessary to this Nation’s system of ordered liberty and is deeply rooted in our history and tradition. Thus, it applies to the states through the Due Process Clause of the Fourteenth Amendment.
It is hard to believe that anyone could rationally argue that the Second Amendment does not protect a fundamental right. Yet liberals on the Court, including Justice Stevens whose last day is today, could not even bring themselves to recognize this fundamental right because they don’t like the result. They would never do this with other amendments in the Bill of Rights that lead to results they agree with. McDonald was actually an easy decision because, just like in the Heller case, the regulations in both Chicago and Illinois were little more than outright bans that prevented city residents from owning guns.
The difficult cases are those that are sure to follow the McDonald decision. The Court clearly said that some government regulation of guns is allowed. But how far can state and local governments go? How burdensome can their regulations be? Can they decide to allow gun ownership that will enable a homeowner to protect himself and his family in his home, but prohibit the concealed carrying of a handgun? All of these questions remain unanswered by today’s opinion that was decided by a narrow one-vote majority.
But those issues reemphasize the importance of the other event that is starting today – the confirmation hearing of Supreme Court nominee and Solicitor General Elena Kagan. If she is confirmed, she will be helping to decide how far states can go in restricting gun rights and requiring potentially burdensome registration requirements. And her record on this is cause for great concern. As a law clerk for Justice Thurgood Marshall, Kagan recommended in1987 that the Court not even consider a claim by a D.C. resident remarkably similar to that asserted in the Heller case: “that the District of Columbia’s firearm statutes violate his constitutional right to ‘keep and bear Arms’” as her own memo stated. She was “not sympathetic” to that claim, a claim that the Supreme Court ultimately upheld in the Heller decision (the Court refused to review the case Kagan was so contemptuous of and the plaintiff’s conviction for violating an unconstitutional law was not reversed).
As a lawyer in the Clinton White House, Kagan was deeply involved in efforts to get around the Supreme Court’s 1997 ruling in Printz v. United States, the case in which the Court struck down parts of the 1993 Brady handgun law, through possible executive orders. She pushed for White House events and policy announcements on gun control measures such as a law that would “hold adults liable if they give children easy access to guns,” or a new gun design that would allow it to be fired only “by authorized adults.” She drafted an executive order to restrict certain semiautomatic rifles and in one memo even compared the NRA to the Klu Klux Klan. Kagan was apparently thus so hostile to gun rights that she compared the biggest gun-rights organization in the U.S. to one of the most vicious and despised racist hate groups in our history. She is apparently unaware of the fact that one of the key reasons for gun control laws passed in the South after Reconstruction when Jim Crow was imposed was to take away the gun rights of black citizens so they would be defenseless in the fact of intimidation, assaults, and murders.
In the McDonald case, Elena Kagan in her capacity as Solicitor General decided not to file a brief or participate in potentially the most important constitutional law case of any type this decade. Can anyone imagine the Solicitor General not filing a brief in a case of this magnitude construing other amendments in the Bill of Rights, much less one that will decide an issue that has not been previously decided by the Supreme Court?
The fact that Kagan was unwilling to file a brief to protect the Second Amendment rights of Americans says more about her than almost anything else she has done in recent years. She clearly was not willing to assert the fundamental importance of the Second Amendment. And that is something that should concern not just the Senators reviewing her record and asking her questions today about her judicial philosophy, but all Americans who believe in the fundamental importance of the Bill of Rights and the Second Amendment.
