Conservative media have relied on distortions to paint Elena Kagan as an opponent of the constitutional right to keep and bear arms. Now, Constitutional Accountability Center's Doug Kendall has pointed out a particularly disingenuous attack on Kagan in this area. Last week, Townhall.com columnist Ken Klukowski and former Ohio Secretary of State Ken Blackwell claimed on BigGovernment.com that Elena Kagan showed that she opposes gun rights by deciding not to file a brief in a case challenging Chicago's gun control laws. In fact, as Kendall has demonstrated, Kagan followed normal Solicitor General practice in the case, and Blackwell's and Klukowski's purported evidence to the contrary is based on a falsehood.
Blackwell and Klukowski claimed to have evidence that Kagan opposes "Americans' Second Amendment right to own a gun." They cited Kagan's decision as Solicitor General not to file a brief in McDonald v. City of Chicago, a case dealing with the question of whether the Second Amendment individual right to keep and bear arms enunciated in District of Columbia v. Heller applies to the states through the "incorporation" doctrine, under which certain protections of the Bill of Rights apply to the states.
The argument is nonsensical on its face: Kagan didn't file a brief in the case. Therefore, she didn't take a position on whether the Second Amendment applied to the state. Therefore, one can't determine her views on the Second Amendment on the basis of what she did in that case. Not to mention that one can't infer personal legal opinions from Kagan's actions as Solicitor General in any event.
But Kendall has uncovered an even more fundamental dishonesty in their work. Blackwell and Klukowski insist that it is normal practice for the Solicitor General's office to file briefs in incorporation doctrine cases and cite 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. Blackwell and Klukowski wrote:
If someone asserts that the solicitor general shouldn't file a brief because it's a state issue as to whether the Second Amendment is "incorporated" to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court "incorporated" a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) was given time in oral argument time to express the government's views in front of the Court.
In fact, as Kendall notes, the Solicitor General's brief in Benton v. Maryland did not even mention the incorporation issue. Rather, the SG's brief dealt solely with another issue in the case: the issue of whether the federal courts should continue to apply the "concurrent sentence doctrine" to avoid hearing certain appeals in criminal cases. The SG's brief in Benton does not even mention the Double Jeopardy Clause or the incorporation doctrine. In addition, it was filed at the invitation of the Supreme Court. According to the majority opinion by Justice Thurgood Marshall: "The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument."
Furthermore, according to Kendall, 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."
From Kendall's blog post:
On the incorporation question, there is also the fact that the Solicitor General's Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case. As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while "fundamental considerations of federalism militate against executive intrusion into the area of State criminal law." Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General's Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.
I don't want to overstate this. We did find one brief filed by George W. Bush Solicitor General Paul Clement in a case called Cutter v. Wilkinson that argued for incorporation in defending the constitutionality of a federal statute, and I think the federal government does have a very important interest in making sure that constitutional rights, including the Second Amendment, apply against the states in the same manner that they apply against the federal government.
Kendall also stated that he asked Kagan to weigh in on the case and that "Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan's views on the Second Amendment."