Senator Cornyn: Kagan's Record Raises Questions About Her Commitment to Second Amendment Rights

With both the nominations hearing of Elena Kagan to the Supreme Court and the Supreme Court’s release of its decision in McDonald v. Chicago expected on Monday, U.S., I raised concerns today that Elena Kagan’s record indicates hostility toward gun rights and the Second Amendment.

Elena Kagan’s record raises concerns that she will be a reliable vote against Americans’ right to keep and bear arms, and I intend to question her about her commitment to protecting Second Amendment rights. Her words and actions throughout her career indicate that she is "not sympathetic" to the constitutional rights of hunters, collectors, and other law-abiding citizens who own guns for sport or self-defense. America’s gun owners deserve to know if they can trust the same person who coordinated Bill Clinton’s aggressive gun-control agenda to interpret and define the contours of the Second Amendment for decades to come.

Background:

  • As a clerk to Justice Thurgood Marshall, Kagan wrote a memorandum indicating she was  "not sympathetic" to a Second Amendment challenge of D.C.’s gun ban. A similar challenge was later upheld by the Supreme Court in District of Columbia v. Heller
  • Kagan handled gun-control issues in her role as Deputy Director of the Domestic Policy Council in the Clinton Administration. 
  • During her time in the Clinton Administration, Kagan worked to overturn nearly 30 years of Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) precedent allowing the importation of certain hunting rifles and to reclassify them as “assault weapons.” 
  • One of her coworkers in the Clinton White House described this effort by saying “We are taking the law and bending it as far as we can to capture a whole new class of guns.” 
  • Kagan also worked on Clinton Administration efforts to impose a background check requirement on secondary market sales of guns, a “gun tracing” initiative, and an effort to evade the Supreme Court’s decision in Printz v. United States (which struck down a law that required state law enforcement officers to enforce federal gun control law). 
  • In notes from her time in the Clinton White House, Kagan lumped the NRA together with the KKK as “bad guy orgs.” 
  • The decision in McDonald v. Chicago, expected Monday, is likely to hold that the Second Amendment is a fundamental individual right that applies to states. 
  • If the Court in McDonald holds that the Second Amendment applies to states, then it will likely mark the beginning of many challenges to state and local gun-control laws on the grounds that the laws violate the Second Amendment. These cases are likely to reach the Supreme Court in the coming years. 
  •  The Supreme Court is thus likely to have an important and continuing role in defining the scope of Americans’ Second Amendment protections for decades to come.

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