Strengthening Constitutional Self-Government

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Kagan, Obama, and the Second Amendment

I haven't been paying as much attention to the Kagan confirmation hearings as I should, but I did see her answering questions about the Second Amendment and Heller (don't ask me which Republican was asking her questions cause I don't remember.)  I was struck that Kagan's comments on Heller were almost exactly like John Roberts' comments on Roe.  She (like he) was all "the Supreme Court said", "it is settled law" and "it is a precedent to be respected like any other precedent."  If you were listening like a normal person, you would think she was, if not in favor, then certainly not opposed to the Heller decision.  If you were using your Supreme Court Nominee BS Filter, you heard, "I can't say that I know the decision is wrong but I do, and if I get on the Court and four other Justices agree with me, this precedent is history."

Aside from the obvious constitutional consequences, there are, or should be, political consequences.  During the campaign, Obama managed to talk out of both sides of his mouth on the Second Amendment.  Now he has picked one Supreme Court Justice (Sotomayor) who voted to deny that the Second Amendment protects an individual right to own firearms and has almost certainly picked a second Justice who will vote against the individual right to own firearms.  This is a place where litigation and political strategy should work together.  It is important that, once Kagan is confirmed by the Senate, conservative litigators push for a case to come before the Court on the individual right to own guns and put Kagan on the record - and do so within the next year.  If she upholds the individual rights interpretation of the Second Amendment, fine.  I won't mind being proven wrong.  If she votes against that interpretation, Obama will then be more easily painted as not only an enemy of the rights of gun owners and constitutionalists, he can be mocked as a liar who says he wants to protects your rights but works to produce a Supreme Court who will take them away - and you don't have to spend alot of time thinking about the Second Amendment to not like the kind of person who would do such a thing.

All this political strategery aside, the position of the Second Amendment is much more precarious than it would seem in the aftermath of McDonald vs. Chicago.  If one of the five pro-Second Amendment Justices gets run over by an ice cream truck, we get a whole new Second Amendment courtesy of Obama's appointment power.  If Obama gets reelected, we have to hope that five men whose ages vary from 55 to 74 make it to January 2017 (at the earliest.)  People who believe that Obama supports an individual right to own firearms need to know what he is doing to undermine their rights, and the possible (likely?) consequences of his reelection.

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