May 13, 2010
In addition to attacking the First Amendment, Obama’s nominee for the Supreme Court also argued against the Second Amendment.
|“I’m not sympathetic,” to the Second Amendment, said Kagan.|
In 1987 as a U.S. Supreme Court law clerk, Elena Kagan said she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol, according to Bloomberg.
The man argued “the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”
Kagan believes the state has the right to impose restrictive gun laws and she disagrees with the language of the Second Amendment.
Kagan told lawmakers last year when she was the nominee for solicitor general that she accepted the 5-4 decision in District of Columbia v. Heller as a precedent of the court. “There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms,” she said.
Kagan, however, added that the Constitution “provides strong although not unlimited protection against governmental regulation,” thus leaving the door open for future regulation.
In answers to written questions by Patrick Leahy submitted in February of 2009, Kagan said: “Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions of constitutional law (except in areas where I previously have stated opinions), both because those opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation.”
- A d v e r t i s e m e n t
Kagan’s previous stated opinions on the Constitution include her belief that the First Amendment should be modified by the government in order to prevent societal harm.
In addition to papers written in the 1990s on this subject, Solicitor General Kagan argued in favor of prohibiting political speech by corporations. Supreme Chief Justice John Roberts directly criticized Kagan’s argument that the government has the authority to ban political pamphlets.
“The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern,” wrote Roberts.
“Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”
Justice Kennedy said the law had defended as an illegitimate attempt to use “censorship to control thought.”
In addition to opposing the First and Second Amendments, Kagan has argued against the due process clause of the Fifth Amendment.
According to the New York Times, Kagan said “that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than a physical battle zone.”
Kagan’s “elastic interpretation” of the Fourth Amendment echoed remarks made by Eric Holder during his confirmation hearing for the position of Attorney General.
In 2009, Obama outlined his policy of preventive detention, without trial, for people he suspects might commit crimes in the future.
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