Gun rights could pose problem for Kagan
In her first weeks as dean of Harvard Law School in 2003, Elena Kagan put the warring sides of the gun rights debate in a room and let them fight it out.
The debate between gun control advocates and 2nd Amendment purists was sponsored by the law school’s target shooting club, and Kagan showed her support by moderating the exchange. But her own views on gun rights went unaired.
With her Supreme Court confirmation pending, those views have become of extreme interest to pro-gun groups such as the National Rifle Assn. The NRA is already skeptical that it can support Kagan — and in Washington, when the NRA gets worried, senators become nervous.
“There are serious problems,” said Andrew Arulanandam, public affairs director for the NRA. “We will work with senators to make sure tough questions are asked during hearings.”
A concerted effort by the NRA to scuttle Kagan’s confirmation could prove problematic for Republicans and moderate Democrats who fear falling from its good graces.
There appears to be enough evidence to stoke the NRA’s concerns. Kagan worked in the Clinton administration for four years, first as a lawyer in the White House and later as a senior domestic policy advisor. Gun rights advocates already have locked in on a 1997 Kagan memo that paved the way for an executive order banning dozens of semiautomatic weapons as an example of the nominee’s anti-gun views.
They also point to Kagan’s background working for judges, such as federal Judge Abner Mikva, who later brought Kagan into the White House to serve as his deputy and who once likened the NRA to a “street-crime lobby.”
But Kagan more recently has pledged her fidelity to the Supreme Court’s 2008 decision in the case, District of Columbia vs. Heller, that found a constitutional right to own a handgun for personal protection. The White House maintains that Kagan would view her role as a justice differently from that of a policy-crafter in the Clinton White House.
“As a White House aide, Elena Kagan provided legal advice and evaluated policy proposals for President Clinton, whose views on these issues were well established,” said Ben LaBolt, a White House spokesman. “In her confirmation hearing for solicitor general, Ms. Kagan made clear that she considered Heller to be settled law, and the upcoming hearing will present the opportunity for further questions about her views of the law to be asked and answered.”
Clarity on where Kagan stands personally on the issue could be answered by the thousands of documents that the Senate wants from the Clinton library in Arkansas, where Kagan’s White House records are housed.
Until those memos come to light, the gun rights community has focused on the order Kagan worked on while at the White House. The order banned the importation of dozens of types of semiautomatic weapons — military rifles that were modified, the White House said, to escape the ban that was in place on assault weapons in 1994. The NRA and others said the weapons were simply modified to be used for shooting competitions and other shooting events.
The assault weapons ban came on the heels of the 1993 Brady Bill, which required background checks on firearm purchasers for the first time. As gun rights advocates viewed it, there was one clear message: The Clinton White House wanted to remove as many guns from the market as it could.
At the time of the import ban, Jose Cerda, who worked in the domestic policy shop run by Kagan and her boss, Bruce Reed, said, “We are taking the law and bending it as far as it can to capture a whole new class of guns.”
“For the Clinton administration, it was about pushing the envelope,” said Stephen Halbrook, a lawyer who litigates gun rights cases. “They didn’t like firearms and wanted to restrict them as much as possible.”
He said Kagan’s role in the crafting those policies should be established. “You’re responsible for who you work for and what you say,” Halbrook added. “Whether that’s her agenda or not, she certainly went along with that.”
The gun rights community has concerns that extend beyond the import ban. Other documents from the Clinton library suggest Kagan’s support for child-safety trigger locks on handguns. Another is a letter to Kagan written by a San Francisco city attorney, Owen Clements, seeking the White House’s assistance in a municipal lawsuit filed against gun makers. Kagan passed it on to Reed, calling the letter’s author “a friend.”
Kagan’s mere association with a White House viewed as hostile to gun rights could draw opposition from the NRA and other industry groups.
“They abhorred the Clinton White House. They demonized the Clinton White House every way they could,” said Dennis Henigan with the Brady Center to Prevent Handgun Violence. “I don’t think they’re going to forgive her for that.”
After working for Mikva, Kagan clerked for Supreme Court Justice Thurgood Marshall — and gun advocates have seized upon a short memo Kagan prepared for the justice in which she urged him not to hear the appeal of a man convicted of having an unlicensed gun.
The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’ ” Kagan wrote. “I’m not sympathetic.”
But the Supreme Court ruled otherwise in 2008, and today many within the Democratic Party view gun control as an issue that chases away moderate voters. In fact, the current Democratic-controlled Congress last year passed a bill that allows visitors to carry weapons in national parks.
That altered political climate — where votes counter to the wishes of the gun industry are harder and harder to come by — could spell trouble for Kagan.
Republican senators on the Judiciary Committee, such as Sens. Tom Coburn of Oklahoma and John Cornyn of Texas, are expected to press Kagan hard on the issue, as they did last year with Sonia Sotomayor.