Kagan on the Second

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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There have been so many irresponsible statements by those seeking to exploit the tragedy at Newtown, Connecticut, that it’s hard to keep up with them, but for the combination of arrogance and inaccuracy one can’t beat the editorial the New York Times ran out this week under the headline “Personal Guns and the Second Amendment.” That’s the one in which the Times declared: “The text of the Second Amendment creates no right to private possession of guns, but Justice Antonin Scalia found one in legal history for himself and the other four conservatives.”

Well, hold on here. The Times was referring to the Supreme Court’s decision in District of Columbia v. Heller, which — as characterized by the chairman of the Senate Judiciary — found that the Second Amendment guarantees to Americans an individual right to keep and bear arms. The Gray Lady seems bound and determined to stand in the school-house door in one of the greatest civil rights battles of our time, but the fact is that it’s not just “conservatives” who credit the Supreme Court’s ruling. How about, say, Justice Kagan? Or how about one of the most liberal lions of the Senate, Patrick Leahy?

There’s a marvelous clip up on the World Wide Web of Senator Leahy, chairman of the Judiciary Committee, asking the then-solicitor general, Ms. Kagan, about Heller. Not only does she acknowledge that such an individual right exists, but she declares that it is “settled law.” Not only does she do that, but Mr. Leahy, who is about as far left as one can get in the United States Senate, declares that he agrees with Heller. He points out that he’s from Vermont, where there just aren’t any gun control laws at all (and which, incidentally, has the lowest firearms homicide rate in the country).

Heller applied to Washington D.C. It was followed by a case known as MacDonald v. Chicago, which established that the individual right to keep and bear arms must be respected by the states, as well. In both cases the high court left plenty of room for further litigation to define the contours of the right, and that process is well under way. All the more reason to avoid the kind of stentorian, inaccurate bluster of the sort that is coming from the Times. Particularly at a time like this, with the country still reeling in pain from the killings in Connecticut, arrogance of the kind the Times exhibits represents, as we said earlier this week of Mayor Bloomberg’s remarks, a kind of indecency. The American people, whatever else they may be, are not indecent. They deserve better than the kind of stentorianism coming out of the Left.

This is a time to look to original compact. The court, the leadership of the Judiciary Committee, our greatest justices have decided what the Second Amendment means. So why did the Founders enshrine this right? What were they aiming to do when the vouchsafed that the right of the people to keep and bear arms shall not be infringed? Why did they so fear standing armies? Who gets to decide whether the danger of standing arms creates the need to protect the right to arms? When is it appropriate for our leaders to give but short shrift to rulings of the Supreme Court? What is the responsible thing in the face of a Supreme Court ruling?


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