An all-time classic in the annals of American culture clashes. Entrenched Ivory Tower academics love the firearms, baby!
Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.
Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.
The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”
That tidbit’s currently headlining on Drudge, along with her more recent outrageously outrageous declaration as Solicitor General that the Second Amendment “provides strong although not unlimited protection against governmental regulation.” Just one problem: She’s right. None other than Antonin Scalia, writing for the majority in the Heller decision, emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” etc, and that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
That’s also why, like Ace, I’m not hyperventilating over the fact that she views the First Amendment as a balancing test between “the value of the speech against its societal costs.” She got ripped by the Supreme Court for arguing that, but I don’t know why: It is a de facto balancing test under existing precedent, with child porn, obscenity, “fighting words,” defamation, and a few other types of speech all deemed unprotected because they’re too harmful to society. The grilling at the hearings should zero in on how she does her “balancing,” not the fact that she’s doing it in the first place. After all, as Ace noted yesterday, even Sam Alito concluded that “crush” fetish videos should be bannable when he weighed the First Amendment pros and cons on his intellectual scale. Exit question for the nominee: How do you feel about “hate speech”?