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.

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.”

Moreover, the claim in Darling's post that the Supreme Court was considering “whether Chicago's restrictive gun ban is constitutional” is also wrong. The plaintiffs in the case asked the Supreme Court to answer one question: “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses.” And the Court's holding answers that one question: saying that the right to keep and bear arms does apply to state and local governments. The Court never dealt with the question of whether Chicago's ban is constitutional. Rather, the Court remanded the case to the lower courts to determine that issue.