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.”

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.

As for his other arguments, Darling argues that Kagan's testimony shows hostility to the Second Amendment because in Darling's view, Kagan was “unwilling to discuss her personal views of the 2nd Amendment.”

But compare the excerpts from Kagan's testimony on the Second Amendment that Darling provides to the testimony by John Roberts at his confirmation hearing. At his hearing, Roberts explicitly refused to answer a question on his “views about the Second Amendment”:

SEN. RUSS FEINGOLD (D-WI): Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.

You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.

The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.

FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.

In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.

The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.

So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?

ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, “I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts.” So I do think that issue is one that's likely to come before the court.

Now, before you argue that the Roberts example is completely different because the Supreme Court had not yet decided McDonald and District of Columbia v. Heller, recall that Roberts also repeatedly refused to answer multiple questions about whether Supreme Court precedents were correctly decided. And conservative hero Justice Antonin Scalia even refused to say whether Marbury v. Madison -- the foundational 1803 case that decided that the Court had the power to overturn unconstitutional acts of Congress -- was correctly decided.

Darling also repeatedly points to Kagan's actions as a Clinton administration official and a Marshall clerk to claim she is hostile to gun rights. We again stand by our previous responses on these points, but we'll highlight three facts undermining Darling's argument.

First, Darling highlights a Los Angeles Times article that reports that Kagan “drafted an executive order restricting the importation of certain semiautomatic assault rifles.” He then claims: “Kagan's political activism in implementing a gun control agenda was a political act, yet this nominee has yet to explain her constitutional justification for that executive order.”

In fact, the import regulations at issue were challenged in court, and the U.S. Court of Appeals for the D.C. Circuit upheld the regulations.

And it's not like the three-judge D.C. Circuit panel that unanimously decided the case was stacked with liberal judges. True, one of the members was a Clinton appointee, David Tatel. But the judge who wrote the opinion was A. Raymond Randolph, who was appointed to the court by President George H.W. Bush. And the third member of the panel was none other than Douglas Ginsburg, the conservative judge who President Ronald Reagan briefly nominated to be a Supreme Court justice after the Senate rejected the Robert Bork nomination. (Reagan withdrew Ginsburg's nomination over allegations relating to marijuana use and eventually the seat went to Justice Anthony Kennedy.)

It isn't completely clear whether the judges considered constitutional issues. The decision does not mention the Constitution, but it does say in a footnote at the end of the decision that “We have considered and rejected Springfield's other arguments. They occasion no need for a written opinion.” In other words, either the parties challenging the regulations thought that a constitutional challenge to the regulations was so unlikely to succeed that they did not make the argument or the D.C. Circuit judges thought the constitutional challenge so frivolous that they did not see fit to discuss the issue.

Second, Darling's repeated claim that Kagan has never taken a position that favors gun owners is simply untrue. As Greg Sargent of The Washington Post reports, the 1994 crime bill banned the importation of large capacity feeding ammunition devices manufactured after September 13, 1994. The Bureau of Alcohol, Tobacco, and Firearms proposed banning the importation of those devices manufactured before that date as well. And Kagan opposed ATF's proposal.

Third, we'll point out what Kagan's former boss said about reading too much into Kagan's actions as a Clinton administration aide -- whether in favor or opposed to gun regulations. From a post by Sargent:

Bruce Reed, who worked directly on these issues with Kagan, argues in an interview that she's in no way hostile to the Second Amendment.

“In all these cases, Clinton had already settled views on these questions,” Reed tells me. “Our job was to make sure the government's policy reflected what he wanted. He'd already made up his mind on most of these contentious issues.”

Reed adds that the policies Kagan did help draft had bipartisan support and weren't even particularly controversial. “We were facing a Republican Congress,” Reed says. “The debates we had were kind of at the 50 yard line.”