Senator Leahy: Is there any doubt after the Court’s decision in Heller and McDonald that the Second Amendment to the Constitution secures a fundamental right for an individual to own a firearm, use it for self-defense in their home?
Ms. Kagan: There is no doubt, Senator Leahy. That is binding precedent entitled to all the respect of binding precedent in any case. So that is settled law.
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That exchange, from the confirmation hearing of Associate Justice Elena Kagan, will be something to keep in mind following the death of Justice Scalia. He was the author of Heller, which the Nine decided by a vote of five to four. There is talk, from no less an authority than the National Rifle Association, that in the wake of the death of The Great Scalia, Heller and the subsequent case, McDonald, are now in doubt.
That will emerge as, among other things, a test of Justice Kagan. The key word in Senator Leahy’s question — not a particle of which is idle — is “fundamental.” In the lingo of the high court, a “fundamental” feature of the Bill of Rights is one that has been incorporated against the states. As originally conceived, the Bill of Rights was a restriction only Congress. But after the 14th Amendment came into the Constitution, the courts began incorporating the Bill of Rights against the states as well.
Heller applied to the Columbia District, which was a relative easy decision, since the District is governed by Congress. It was McDonald that incorporated the 2nd Amendment against the states, in the event Illinois. So what Justice Kagan was acknowledging was that after McDonald, the right to keep and bear arms was deemed to be an individual right with which neither the Congress nor the states are constitutionally permitted to trifle.
If Justice Kagan is good to her word —and we’d like to think that she is — then the record suggests there are five justices in favor of a proper reading of the 2nd amendment. They would be Justice Kagan along with Chief Justice Roberts and Justices Kennedy, Thomas and Alito. We don’t know that for sure, because Justice Kagan wasn’t on the high bench at the time McDonald was decided. But we know what she said at her confirmation hearing.
Justice Sotomayor, who was elevated to the Nine before Justice Kagan, was also questioned about Heller. She was far cagier than Justice Kagan and left herself more wiggle room. McDonald hadn’t been heard at the time she was confirmed, and when she heard it, she sided against the Bill of Rights and in favor of Illinois. The other dissenters were Justices Breyer and Ginsburg.
So Heller may be settled law, but is clearly in peril. So no matter who nominates the next Justice, the 2nd Amendment will be one of the important test questions. The New York Sun wouldn’t advance Solon himself to the Supreme Court absent, during confirmation, a commitment that the right vouchsafed in the 2nd Amendment is fundamental, binding on the states as well as Congress. In honor of Scalia, let them stick to their guns.