Gun Decision & NRA Gag Order

Statement of CFJ Executive Director Curt Levey:

Today’s landmark Supreme Court decision in McDonald v. Chicago, extending gun rights to the state and local level, reminds gun owners of the profound impact Elena Kagan will have on their Second Amendment rights if she’s confirmed. Today’s decision completes the shift of the guns rights battle from the legislatures to the courts, mirroring the seismic shift in the abortion rights battleground following Roe v. Wade. Because of McDonald and District of Columbia v. Heller, the Court’s 2008 decision recognizing the Second Amendment as an individual federal right, the scope and shape of gun restrictions is now in the hands of the courts. As a result, Second Amendment rights hang on the selection of Supreme Court Justices.

The NRA has been somewhat slow to adapt to this shift, understandably so given its long history of success in the legislative arena. Despite the NRA’s concerns about Sonia Sotomayor’s gun rights record – concerns confirmed by her vote today in McDonald – the NRA did not publicly oppose her confirmation last summer until after the release of a letter of opposition signed by 14 members of the NRA board and the heads of five NRA state affiliates. Nonetheless, the NRA’s eventual opposition was key to making gun rights the most prominent and influential issue in the final month of the Sotomayor confirmation fight.

This summer, people have been asking why NRA board members have not spoken out about Kagan’s even worse Second Amendment record. The explanation CFJ has been hearing from board members was confirmed yesterday by Erick Erickson’s reporting at RedState:

“Internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings. … [and] from coming out against Kagan in their individual capacity.”

The gag order, issued months ago in anticipation of the current Supreme Court vacancy, was a reaction to the NRA’s concern about having its hand forced last summer.

Unlike other leading gun rights groups, including the Second Amendment Foundation and Gun Owners of America, the NRA had been silent on Kagan. But that changed on Friday. While stopping short of opposing Kagan for now, the NRA did issue a statement critical of her. Erickson says the statement came “after the internal Senate email began leaking out.” But whatever the reasons behind it, the statement summarized the reasons gun owners should be concerned about Kagan:

“What we've seen to date shows a hostility towards our Right to Keep and Bear Arms, such as her role in developing the Clinton Administration's 1998 ban on importation of many models of semi-automatic rifles; her note mentioning the NRA and the Ku Klux Klan as ‘bad guy’ organizations; and her comment to Justice Marshall that she was ‘not sympathetic’ to a challenge to Washington, D.C.'s handgun ban.”

The statement’s mention of Kagan’s “involvement in formulating anti-gun policies at the Clinton White House” is particularly significant, since Clinton’s gun policies earned him an ‘F’ rating from the NRA. Other examples of Kagan’s White House work not mentioned in the brief statement include supporting stronger gun-show regulations and trigger lock mandates, lending assistance to municipal lawsuits against gun manufacturers, and plotting ways to get around a Supreme Court decision holding that the feds cannot force state and local law enforcement to conduct background checks on gun buyers.

It remains to be seen whether the NRA will formally oppose Kagan’s confirmation before the Judiciary Committee and full Senate vote on her. I hope so. Having opposed Justice Sotomayor and announced the scoring of her confirmation vote last summer, doing less this summer will be interpreted as NRA acquiescence in Kagan’s confirmation.

I am not unaware of or completely unsympathetic to the political calculations holding the NRA back. However, in light of the NRA’s recent negotiation of a special carve out in the DISCLOSE Act, the controversial campaign finance bill, the NRA needs to be sensitive to putting politics above principle.

To be fair, NRA CEO Wayne LaPierre has a point when he explains the carve out: “If we don't have our speech rights, it would mean the end of the Second Amendment.” But in dealing with the Kagan nomination, LaPierre needs to be equally aware that the shift of a single vote on the Supreme Court would even more surely doom the Second Amendment. Moreover, if the DISCLOSE Act becomes law, the fate of its crackdown on free speech will be decided by the Supreme Court. And in Supreme Court decisions, there are no opportunities to negotiate carve outs.

The NRA can argue that, with the exception of Sotomayor, judicial nominations are simply outside their traditional agenda. But that begs the question of how to adapt to the change wrought by McDonald and Heller. And most importantly, if the NRA can venture beyond its traditional agenda into the First Amendment issues implicated by the DISCLOSE Act, surely it can weigh in on the Second Amendment issue of Elena Kagan’s gun rights record.

The focus should not be on criticizing the NRA for what it hasn’t done about the Kagan nomination so far. In fact, the NRA’s incredible contribution to the preservation of Second Amendment rights and its legendary influence on legislators, particularly moderate Democrats, is precisely the reason why the NRA’s enthusiastic involvement in this nomination is so important. Instead, the focus should be on how the NRA can make a difference in the remaining weeks of the Kagan confirmation process. Specifically, the NRA can make a big difference – putting Kagan’s confirmation in doubt and/or sending a strong message to the White House about nominating anti-gun judges – by formally opposing her confirmation, announcing it will score the confirmation vote, and vigorously lobbying swing senators.

At the very least, vigorous opposition to Kagan would go a long way to repairing the damage done to the NRA’s reputation among conservatives by the DISCLOSE Act carve out.