Brian Darling

Tags ››› Brian Darling
  • RedState's Darling acknowledges that part of his argument against Kagan's gun views was bunk

    Blog ››› ››› ADAM SHAH'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."

    There are other examples of attorneys in private practice meeting with the solicitor general's office or advising attorneys involved in Supreme Court cases to meet with that office.

    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.

  • Red State reaches back to utterly debunked talking point to attack Kagan on gun issue

    Blog ››› ››› ADAM SHAH

    Writing on, 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.

    Darling writes:

    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."