Executive Session
Floor Speech
BREAK IN TRANSCRIPT
Mr. WICKER. I thank the ranking member for that question. I would answer: Yes, indeed, her record, taken together with her committee testimony, tells us a lot about Ms. Kagan's insight and feelings about the second amendment.
Let me agree with my colleague from Connecticut, however, and say I don't believe it is necessary for someone to have judicial experience to be an effective member of the Supreme Court. Clearly that is not called for in the Constitution. However, in a situation such as this, where the nominee has never written a judicial opinion of her own, where she has hardly any experience at all in the courtroom, I do think it is appropriate--and actually necessary--for us to examine her life experience and see what insights we can gain on her views on the second amendment.
I would also say this: The debate is drawing to a close. The issue is probably not in doubt, but I think we owe it to the Record, we owe it to our constituents, we owe it to the American people to outline our concerns with regard to the second amendment to the Constitution, to the second article in the Bill of Rights. So I ask my colleagues to indulge me by going through some of the life experiences this nominee has.
Ms. Kagan began her law career clerking for a very antigun judge, Abner Mikva, who later brought Ms. Kagan to the White House to serve as his deputy. Judge Mikva once likened the National Rifle Association to ``a street crime lobby.''
Next, Ms. Kagan's own hostility to the second amendment rights became evident during her time as a law clerk for Justice Thurgood Marshall where as a clerk she wrote that she was ``not sympathetic'' to the argument that the DC handgun ban violated an individual's second amendment rights. This is disappointing and troubling. In this memo she didn't cite text, precedent, or analyze the law or look to the Constitution. Ms. Kagan inserted her personal beliefs and said: I am not sympathetic to this individual right argument.
The case that comment involved was Lee Sandidge. A business owner was arrested and convicted in the District of Columbia for possessing ammunition and an unregistered pistol without a license. The law provided up to 10 years in jail for this offense. Mr. Sandidge's second amendment claim--the one that Ms. Kagan was not sympathetic toward--challenged the very same DC total gun ban that was struck down later by the Supreme Court in the Heller decision. Ms. Kagan's lack of sympathy for Sandidge's claim demonstrates she failed to recognize that we have an individual right as citizens to bear arms. I am very pleased that the Supreme Court has now recognized this on two occasions, in Heller as well as this year, in 2010, in McDonald.
Then Ms. Kagan embarked on what can only be described as a quest against gun ownership and second amendment rights during her years in the Clinton White House. She worked extensively on gun issues during President Clinton's administration which was well known for such gun control efforts. The record leaves no doubt that Ms. Kagan was a key player in shaping Clinton White House restrictive gun policies. During those years, she coauthored policy memos that advocated increased restrictions on lawful gun owners, including legislation requiring background checks for all secondary market gun purchases, a gun tracing initiative, and a call for a new gun design ``that can be shot only by authorized adults.'' According to the records of the Clinton Presidential Library, Ms. Kagan also drafted an Executive Order restricting the importation of certain semiautomatic rifles that were not covered by statute. In other words, she authored an Executive Order that went beyond the statute in her quest against gun ownership.
At the time of the import ban, a senior staffer who worked in the Clinton domestic policy shop that was run by Ms. Kagan, described the administration's plan as follows: ``We are taking the law and bending it as far as it can to capture a whole new class of guns.'' This was the office our nominee ran during that administration.
In addition, Ms. Kagan appears to have been in charge of the Domestic Policy Council's effort to respond to the Supreme Court's 1997 ruling in Printz v. the United States. The Printz case struck down parts of the 1994 Brady handgun law on tenth amendment grounds. According to the Clinton Library, even after the Supreme Court had ruled, the Clinton administration, with Ms. Kagan involved, worked to preserve unconstitutional provisions considered in many legislative and executive branch responses to the Court's decision.
I would reiterate what my friend from Alabama has said. The right of every American--the individual right we have to keep and bear arms under the second amendment to the Constitution--hangs by a single vote, and I am concerned that personal sympathies and a strong record of opposition to the second amendment would influence the way this person would act as a judge.
But there is one other thing, and I wish to ask my friend from Nevada about this. During her testimony before the Judiciary Committee, Ms. Kagan stated she had never had an occasion to look at the history on which Heller is based, and, therefore, she could not say whether she believed there is a preexisting individual, fundamental right to keep and bear arms.
Here is a talented and intelligent and articulate and brilliant law student and law professor and staffer who worked extensively on the issue of second amendment rights for years, and she taught constitutional law at one of the most prestigious institutions in this country, yet she stated in her testimony that she had never had occasion to look at the history on which this was based and, therefore, she could not say whether there was a fundamental right to keep and bear arms. I think her credibility was quite damaged by that statement.
I ask my friend Senator Ensign whether he was surprised when Ms. Kagan made that statement based on her extensive experience and interaction involving this issue?
BREAK IN TRANSCRIPT
Mr. WICKER. I simply look to her own testimony. I think it is troubling--particularly for a law professor and somebody who dealt with the issue for decades--when asked at her hearing whether she personally believes there was a right to self-defense that existed before the Constitution, she said she ``didn't have a view of what are natural independent of the Constitution.''
Maybe Solicitor General Kagan was tired by that time. Maybe she had been told by her handlers--the people at the Department of Justice--that it is best
to simply not answer that. But I say to my colleagues, we are endowed by our Creator with certain inalienable rights. We don't get them from the Constitution. Those rights are there. Certain rights are enumerated, including the second amendment rights, in the Constitution. For a Justice of the Supreme Court not to understand that causes me problems, and it causes me to think that she just doesn't have a very well-founded view of the second amendment.
BREAK IN TRANSCRIPT
Mr. WICKER. The Senator is correct. The phrase ``a right of the people'' is used two other times in the Constitution and the Bill of Rights--in the first amendment's assembly and petition clause, the fourth amendment's search and seizure clause, and a very similar phrase is used in the ninth amendment, where the Founders stated that ``the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.''
In all three instances, the Framers were referring to individual rights and not to collective rights. Nowhere in the Constitution does a ``right'' attributed to ``the people'' refer to anything but an individual right. It is the same with the second amendment.
This has been affirmed in the Heller case. Judge Sotomayor, when testifying before us, said she thought that was settled law. The decision this year, in which she dissented, makes me wonder about that, and it gives me grave concern, with a 5-to-4 Court, about what might happen to precedent and what I believe now is settled law.
Let me ask the ranking member, during Ms. Kagan's hearing, she was questioned about her statement that she believes precedent trumps original intent. What does this mean with regard to the second amendment rights, based on the pre-Heller precedent?
BREAK IN TRANSCRIPT
Source