Iowa Senator Chuck Grassley, a Republican, questioned Supreme Court nominee Elena Kagan about the rulings on the right of citizens to possess guns during Tuesday’s Senate Judiciary Committee confirmation hearings. Grassley said prior to the hearing Kagan has taken very passionate stands on several liberal points of view in her writings. His questioning centered on her personal views about the gun decision released this week known as the “McDonald” case, and the 2008 Supreme Court case of District of Columbia vs. Heller.
“Do you personally believe that the Second Amendment includes an individual right to possess firearms?” Grassley asked. Kagan responded, “Well I do think that Heller (gun ruling) is the law going forward. I have not had myself the occasion to delve into the history that the courts dealt with in Heller. But I have absolutely no reason to think that the court’s analysis was incorrect in any way. I accept the court’s analysis.”
Grassley pressed the issue after Kagan avoided giving her personal opinion. “So whether you personally believe that….the right to bear arms is a collective or individual right will have no bearing the future, you don’t want to tell us your personal belief, that’s kind of what I’m asking,” Grassley asked. Kagan responded that her approach to the hearing was to try and not grade cases. And she says the Heller case was based on a lot of history that she has not had time to look at.
Grassley continued to pursue the issue, asking Kagan if she believed the right to bear arms was created by a constitutional amendment, or if it was one of the rights that was preordained. Kagan again answered the question citing a legal, not personal view. “I think that the fundamental legal question…that a case would present, would be whether the constitution guarantees a individual right to bear arms, and Heller held that it did. And that’s good precedent going forward,” Kagan said.
Grassley also quoted Kagan’s Oxford thesis where she wrote “judges would often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends, such activity is not necessarily wrong or invalid.” Grassley asked,”Is it appropriate for judges to mold and steer the law?” Kagan responded,”Senator Grassley, all I can say about that paper is that it’s dangerous to write papers about law before you have spent a day in law school.” She says she wrote the paper when she was trying to figure our if she would go to law school and tried to find out if she was interested in the subject.
Kagan was visibly uncomfortable and fiddled with the microphone in front of her as she continued to answer Grassley.
“I might have been interested in the subject, but I didn’t know much about the subject at the time,” Kagan said, “so I would, I would, I would just ask you to recognize that I didn’t know a whole lot of law then. I didn’t know a whole lot of law then.” Her halting response drew a laugh from the audience.
Kagan gave the same answer when asked again by Grassley about another quote about courts making rulings based on “demands of social justice.” Kagan told Grassley that was also a quote made when she did not know a lot about the law.
“Well let me leave that then, and let me say that you’ve learned a lot by going to law school. I not sure I say that to very many people, I’m not a lawyer you know,” Grassley replied. His response brought laughter from the room. Grassley has served on the Senate Judiciary Committee since 1981 and had confirmed 11 straight Supreme Court nominees — until voting against Sonia Sotomayor last year.