Kagan’s Inaction on Second Amendment Case Raises Questions

Hans von Spakovsky / May 14, 2010

Much of the discussion and speculation about Elena Kagan’s legal philosophy is limited by her very thin record of scholarship, along with an almost complete lack of experience in the courtroom or participation in litigation through amicus briefs prior to her appointment last year as solicitor general. So we must parse what evidence exists more closely, and a lack of action — particularly in her current job — can be an important indication of her views on an issue.

The Supreme Court is in the process of deciding a landmark Second Amendment issue in McDonald v. Chicago that also raises an even more profound question related to the meaning of the Fourteenth Amendment. As all appellate lawyers know, the Court took the case and heard oral argument to decide whether state and local governments are bound by the Second Amendment, and if so, whether Chicago’s restrictive gun ban is constitutional. Even if the first question is of no interest to Kagan — despite the fact that the Fourteenth Amendment theory advanced by the main party and being considered by the Court has every constitutional law professor in America engaged — the second question implicates many federal firearms laws. Yet in her capacity as solicitor general, Elena Kagan decided not to file a brief or participate in what may be the most important Second Amendment case in our nation’s history — and potentially the most important constitutional law case of any type this decade. (more…)