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.
Can anyone imagine the solicitor general not filing a brief in a case of this magnitude construing other amendments in the Bill of Rights, much less one that will decide an issue that has not been seriously questioned for over 130 years — whether the privileges or immunities clause of the Fourteenth Amendment was wrongly limited by a post-Civil War Supreme Court? The fact that Kagan was unwilling to opine in this case to protect the Second Amendment rights of Americans, and was unwilling to take a position before the Supreme Court on the other fundamental rights issue, says more about her than many apparently realize.
This should be of concern to everyone who cherishes personal liberty and freedom. Senators who will be deciding whether she is fit to serve on the Supreme Court have a duty to inquire about her underlying views of the Second Amendment — not about the particular facts of any future case, but about whether she thinks it protects all Americans and is binding on all levels of our government. And even if the High Court sidesteps the larger Fourteenth Amendment issue in this case, Senators need answers from Kagan on what she thinks is the meaning of the privileges and immunities clause of the Fourteenth Amendment. She dodged that question in her job as solicitor general, but she should not refuse to answer such a straightforward question when she is seeking a lifetime position that will effectively protect or limit our freedoms.