RedState.com's Brian Darling has responded to our debunking of his argument that Elena Kagan showed "hostility to Second Amendment rights" by not filing a brief in McDonald v. City of Chicago, the case that extended the individual right to bear arms to states and local government. While he doesn't say it in so many words, Darling essentially admits that we were right.
Darling acknowledges that the sole issue the Supreme Court decided in McDonald was whether the Second Amendment applied to states and local governments, not the scope of the protections of the Second Amendment. I.e., the Supreme Court decision has no implications for whether any federal gun laws are unconstitutional. He writes:
I stipulate to the point that the holding in the case answers the question of "whether the Second Amendment right to keep and bear Arms is incorporated as against the States by the Foureenth Amendment's Privileges or Immunities or Due Process Clauses."
Darling also does not contest Constitutional Accountability Center Doug Kendall's statement that the solicitor general's office has a "tradition of not weighing in" on cases like McDonald that decide whether the protections of the Bill of Rights apply to the states.
Furthermore, Darling also doesn't contest the fact that the solicitor general was free to choose to weigh in on either side in McDonald and does not explain why Kagan's decision not to weigh in at all shows hostility to gun rights.
Darling makes one additional argument on McDonald in his latest post. He writes: "It is my understanding that Kagan met with attorneys representing harmed parties in the McDonald case and decided not to file a brief. If the Solicitor General had no interest in the case, why did the Solicitor General's office meet with counsel?"
In fact, attorneys who have cases before the Supreme Court that do not directly involve the federal government regularly meet with the solicitor general to ask that the office file a brief supporting their side (or ask that the office not file a brief supporting the other side). Former assistant solicitor general Carter Phillips has stated in an article in The Journal of Appellate Practices and Process (via Nexis): "Actually, one of the better-kept secrets inside the beltway is how relatively easy it is for both private and government lawyers to meet with the Solicitor General on appellate issues."
Indeed, Patricia Millett, another former assistant solicitor general stated in the Journal of Appellate Practices and Process (via Nexis): "[C]ounsel in a case in which Supreme Court review has been granted would be well advised to contact the Solicitor General's Office about its potential participation in the case. As at the certiorari stage, counsel should call the Office and request a meeting or telephonic discussion with the Deputy Solicitor General and Assistant to the Solicitor General who are assigned to the case."
To sum up, Darling still does not explain why Kagan's decision not to file a brief in McDonald shows hostility to the Second Amendment. He does not contest the facts that no federal statutes were implicated by McDonald and the solicitor general generally does not weigh in on such cases. And his argument that Kagan's meeting with attorneys in the McDonald case is significant doesn't hold water.
It's simply not credible to argue that Kagan's actions in McDonald show hostility to gun rights.
Volumes have been dedicated to meticulously laying out the way Bush administration officials selectively leaked intelligence that advanced their political agenda to the press, only to then cite the ensuing press reports to validate their specious claims and spread them through conservative media channels. Perhaps no day illustrates this strategy as well as September 8, 2002.
That morning, The New York Times published an article headlined, "U.S. Says Hussein Intensifies Quest for A-Bomb Parts," where reporters Judith Miller and Michael R. Gordon relied on leaked classified intelligence to report that "Iraq has stepped up its quest for nuclear weapons and has embarked on a worldwide hunt for materials to make an atomic bomb." That very day then-Vice President Dick Cheney appeared on NBC's Meet the Press to tout the article.
Within weeks, The Weekly Standard was out promoting the Times article, and the administration's promotion of it, as evidence of the threat posed by Saddam Hussein.
This incident and the eight years of media navel-gazing that ensued seems relevant today, as J. Christian Adams, a GOP activist and former Justice Department attorney reportedly hired while the Bush administration was politicizing hiring at DOJ has begun levying attacks on the Justice Department's handling of the New Black Panthers Party case.
From the July 1 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Writing on RedState.com, the Heritage Foundation's Brian Darling rehashed a variety of debunked myths to claim that Elena Kagan is "anti-Second Amendment" (criticizing Media Matters by name in the process). We've debunked most of these claims multiple times before, and we stand by those responses.
But there's one claim Darling made that we haven't dealt with for more than a month because it was proven to be so utterly false that almost no one has bothered to even raise it again until now: The claim that Kagan's decision not to file a brief in the Supreme Court case regarding Chicago's gun rights shows an anti-Second Amendment bias.
Elena Kagan has shown hostility to Second Amendment rights in her duties as President Obama's Solicitor General. General Kagan failed to find a federal interest in the McDonald v. Chicago case decided this week and failed to file a brief in the case. The McDonald case held that the Second Amendment applies to the states.
Hans Von Spakovsky and Todd Gaziano wrote for National Review Online the following before the McDonald case was decided:
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.
First, how in the world does not filing a brief in the case establish Kagan's supposed "hostility to Second Amendment rights"? After all, there were two sides to the case. If she had filed a brief, she could have sided with either the parties that were defending the Chicago handgun laws or the parties that were challenging those laws. Since she didn't file a brief in the case, isn't the logical conclusion that you can't identify Kagan's position on the issue? (And even if Kagan had filed a brief, that would not necessarily be evidence of her personal legal view.)
Equally importantly, as we've noted before, Kagan was actually following well-established Solicitor General precedent by not weighing in on McDonald v. City of Chicago, a case in which the federal government was not a party. Ken Blackwell and Ken Klukowski previously claimed that it is normal practice for the Solicitor General's office to file briefs in incorporation doctrine cases and cited the fact that, in 1969, the Solicitor General filed a brief in Benton v. Maryland -- a case dealing, in part, with whether the Double Jeopardy Clause of the Fifth Amendment applies to the states.
In fact, as the Constitutional Accountability Center's Doug Kendall has noted, the Solicitor General's brief in Benton v. Maryland did not even mention the incorporation issue. Kendall also noted that, contrary to Blackwell and Klukowski's assertion, the Solicitor General actually "has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case."
In written testimony on the nomination of Elena Kagan, Colorado political commentator and law professor David Kopel advances a mélange of distortions of Kagan's record on gun issues.
Kopel, who is scheduled to be a Republican witness at Kagan's hearing, wrote his prepared testimony with attorney Stephen P. Halbrook. While Kopel and Halbrook note that Kagan has shown some solicitude for gun owners in her career, they claim that "[e]vidence of a hostile attitude towards the Second Amendment can be found at the beginning of [Kagan's] legal career." As evidence, Kopel and Halbrook point to the fact that, as a clerk to Justice Thurgood Marshall in the 1987, Kagan said she was "not sympathetic" to a person who asked the Supreme Court to hear a challenge to the District of Columbia's handgun laws.
This is an old smear forwarded more than a month ago by The Drudge Report and we've debunked it before. First, as Justice John Paul Stevens has noted, before 2001, no federal appeals court had ever held that the Second Amendment protected individual rights and the Supreme Court certainly had not done so. And when the Supreme Court found that such an individual right existed in 2008, four justices dissented. So it was hardly out of the mainstream for Kagan to advise Marshall to vote not to hear the case.
Second, contrary to Kopel's and Halbrook's assertion that "Obviously the phrase 'I'm not sympathetic' expressed Kagan's personal views," legal expert and former Supreme Court clerk Eugene Volokh has stated that the memos show Kagan "doing what she was supposed to do" which "was to give Justice Marshall advice based on whether the Court's decision was likely to clarify or improve the law from Justice Marshall's perspective." Indeed, Kagan herself has said that the purpose of her memos was to "channel" Marshall.
Third, Kagan's use of the phrase "not sympathetic" is not evidence that she was referring to her personal views. Numerous current and former Supreme Court justices -- including Samuel Alito, Clarence Thomas, William Rehnquist, and Stevens -- have used the term "sympathetic" to refer to agreement or disagreement with legal arguments.
On Fox News' Special Report, Carl Cameron and Fred Barnes promoted the myths that Supreme Court nominee Elena Kagan "bann[ed]" military recruiting at Harvard Law School, and that Kagan's opposition to the military's "Don't Ask, Don't Tell" policy contradicts her being "tremendously supportive of the military."
Conservatives media have falsely suggested that Justice Sonia Sotomayor testified untruthfully about her views on the Second Amendment and have used that false allegation to suggest that people should not believe Elena Kagan's testimony during her confirmation hearing.
The false allegation is based on (1) the fact that Sotomayor testified at her confirmation hearing that she "accepted" the Court's earlier decision that the Second Amendment created an individual right and (2) the fact that yesterday she dissented from a case that extended gun rights to states and local governments.
In fact, there is no inconsistency between Sotomayor's testimony and the dissent she joined yesterday on gun rights issues. The dissent she joined was critical of the reasoning in the Court's 2008 majority opinion in District of Columbia v. Heller -- the case that found that the Second Amendment protects an individual right to bear arms. But the dissent did not call for Heller to be overruled. Rather, the opinion stated that the individual right to bear arms should not be applied to state and local laws.
Moreover, the context of Sotomayor's testimony at her confirmation hearing makes clear that she was saying "accepted" the decision as a federal appellate judge -- the job she held at the time. Sotomayor was not that she would vote to uphold Heller as a Supreme Court justice.
Indeed, when discussing gun rights issues, Sotomayor testified that she "would not prejudge any question that came before me if I was a justice on the Supreme Court."
From the June 28 broadcast of Radio America's The G. Gordon Liddy Show:
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From the June 28 edition of MSNBC Live:
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From the June 25 edition of Fox News' Hannity:
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From the June 25 broadcast of Premiere Radio Networks' The Glenn Beck Program:
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What does it say about a news organization when its leader tells easily disproven lies?
WorldNetDaily editor and CEO Joseph Farah does exactly that in a June 21 WND article attacking Supreme Court nominee Elena Kagan. The article is headlined "Anti-military zealot on Supreme Court?" and quotes Farah as saying that "Kagan is a radical anti-military and pro-abortion zealot."
That is demonstrably false. Kagan is on the record as repeatedly praising the military for its "courage," "dedication" and "great service," and she has called military service "the greatest service a person can give for their country." And if Kagan is such a "zealot," would she be receiving the support of solicitors general from across the political spectrum, such as Democratic appointees Walter Dellinger, Drew Days, and Seth Waxman and Republican appointees Charles Fried, Kenneth Starr, and Theodore Olson?
This isn't the only lie Farah tells. He's also quoted as saying: "This woman, as president of her university, banned the U.S. military from recruiting on campus. … Just contemplate rewarding that kind of vehemently anti-American action with a lifetime appointment to the Supreme Court. Elena Kagan must be stopped."
First, Kagan is not "president of her university"; she is dean of her university's law school. Second, she did not "ban the U.S. military from recruiting on campus"; law school students had access to military recruiters during her entire tenure as dean, and she prohibited military recruiters from using the school's career services office for only a single semester.
The short answer to why a journalist would tell so many lies to his readers is that Farah is not a journalist -- he is an activist. And his WorldNetDaily is not a news organization; it is, for all practical purposes, a for-profit activist group.
Speaking of profit, there is a reason Farah is telling you these lies -- he has something to sell you. Farah would like to join his "Stop Kagan Campaign," in which you send him $24.95 to deliver "personalized, individually addressed, anti-Kagan letters to all 100 U.S. senators by Fed Ex." Farah adds: "It's a phenomenal bargain. … It makes it easy for you to sound off on this historically bad nomination. It's a small investment. And I am convinced that if enough Americans take advantage of it, Kagan will be stopped -- even by this Senate."
Ultimately, this isn't a "news" article at all -- it's an ad. It seems that Farah wants to make money so bad he's willing to tell blatant lies. And that tells you all you need to know about WorldNetDaily.
National Review Online's Robert VerBruggen falsely claimed that in a document she wrote as a Clinton administration official, Elena Kagan "apparently tied the NRA to the KKK." In fact, Kagan did no such thing.
From the June 18 broadcast of Premiere Radio Networks' The Glenn Beck Program:
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From the June 4 edition of Fox News' The O'Reilly Factor:
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