July 01, 2010

Kagan's precedents on guns

When saying one with follow precedent doesn't mean a lot. From a piece that I had at Fox News:

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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