July 02, 2010

Bad News for Reid: NRA Opposes Kagan

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice commends the NRA for its letter to senators yesterday announcing that it will “oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court” and score the confirmation vote – that is, include senators’ votes on Kagan “in NRA's future candidate evaluations.” In the letter, the NRA points out that Kagan “has repeatedly demonstrated a clear hostility to the fundamental, individual right to keep and bear arms guaranteed under the U.S. Constitution” and that she “repeatedly declined to say whether she agrees with the dissenting views of Justices Stevens, Breyer, Ginsburg and Sotomayor” that the Second Amendment affords no such right.

As Roll Call notes, the letter “could put pressure on a handful of moderate Democrats … to break with their party and vote against Kagan.” We hope that the NRA will maximize the impact of its letter by “working” the vote – that is, lobbying senators to vote no on Kagan’s confirmation.

Apart from the confirmation vote, the thing most affected by yesterday’s letter may be Senate Majority Leader Harry Reid’s chances of reelection in Nevada. It had been rumored that the NRA was planning to endorse Reid in his race against pro-gun Republican nominee Sharron Angle. Despite a dubious Second Amendment record, Reid’s standing with the NRA improved after he helped secure land and $60 million in funding for the world’s largest shooting range, which opened in North Las Vegas last August.

But yesterday’s letter changes the equation. If Reid votes to confirm Kagan, it is difficult to see how the NRA can go ahead and endorse him without losing face, given both the close timing and prominence of yesterday’s letter and Sharron Angle’s opposition to Kagan.

As recently as last week, the NRA was reluctant to get involved in the Kagan confirmation battle either directly or through its board members. The negative publicity and membership cancellations that resulted from its reluctance is undoubtedly part of the explanation for yesterday’s dramatic change of course.

However, the NRA letter suggests that the reasons go deeper. Following the Supreme Court’s 5-4 McDonald decision last week, the NRA is focused on the sobering fact that “four justices would effectively write the Second Amendment out of the Constitution.” The four include Justice Sotomayor, and the letter expresses particular concern that Sotomayor has taken this position despite testifying last summer that the Supreme Court's recognition of individual Second Amendment rights is "settled law". Clearly, the NRA fears that Elena Kagan, if confirmed, will repeat “Sotomayor's blatant reversal.”

Also telling is the letter’s declaration that an “individual who does not believe that the Second Amendment guarantees a fundamental right … should not serve on any court” (emphasis added). Some say the NRA was reluctant to oppose Kagan because of the long odds against stopping her. But the declaration acknowledges that this confirmation fight is about more than stopping one nominee. In the wake of the Supreme Court’s Heller and McDonald decisions, the battleground for gun rights has shifted from the legislatures to the courts. The NRA appears to recognize that this new reality brings the need for a long-term, principled commitment to opposing judicial nominees who do not respect Second Amendment rights, and to holding senators who vote for them accountable.

That leaves us hopeful that the NRA will work the Kagan confirmation vote despite the odds and will refrain from endorsing senators, like Harry Reid, who vote to confirm Kagan. In the longer term, we hope the NRA will institutionalize its recognition of the new reality by creating a permanent office or task force devoted to researching and evaluating the Second Amendment records of all federal judicial nominees, and to identifying those nominees whose records are troubling enough to warrant the NRA’s opposition.