Justice Antonin Scalia is the Supreme Court’s most outspoken conservative. He defends torture and finds little wrong with executing the innocent. When a majority of his colleagues reached the radical conclusion that people have a right to choose their own sex partners, Scalia railed against them for embracing the “homosexual agenda.” Yet, for all Scalia’s stridency, right-wing lawmakers are now implying that Solicitor General Elena Kagan may only be confirmed to the Supreme Court if she embraces fringe views that even Scalia soundly rejects.
On the day General Kagan was nominated, Sen. John Barrasso (R-WY) argued that the recently-enacted Affordable Care Act violates “states’ rights,” and that Kagan will be forced to explain whether she would strike down health care reform. And Barrasso’s comment echoed a similar statement by Sen. Jeff Sessions (R-AL) who, in a thinly-veiled reference to health care, warned that “the court’s interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year.”
Barrasso and Sessions’ belief that health care reform is unconstitutional, however, places them very much at odds with Justice Scalia. In a case called Gonzales v. Raich, Scalia wrote that Congress has sweeping authority to regulate “economic activity,” and there is simply no question that comprehensive health care legislation is economic in nature. The right-wing conceded this fact with their perpetual braying that health reform would regulate “1/6 of the economy.”
Rep. Mike Pence (R-IN) also announced today that he would use his speech to the National Rifle Association’s national convention to warn that Kagan is “one more jurist who is not sympathetic to the individual, constitutional rights of the American people,” but if Kagan’s views on the Second Amendment offend Pence, then Pence should also be quite peeved by the views of Justice Scalia.
In his landmark decision in District of Columbia v. Heller, Scalia wrote that, although the Constitution protects an individual right to bear arms, “the right secured by the Second Amendment is not unlimited.” Indeed, Scalia said, a wide range of laws restricting firearms are constitutional:
[N]othing 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, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. . . . [b]ut the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
General Kagan’s record is consistent with Scalia’s view of the Second Amendment. A blog post by the right-wing Heritage Foundation highlights two objections to Kagan’s record: a 1987 memo recommending that her boss, Justice Thurgood Marshall, deny Supreme Court review to a party raising a Second Amendment challenge; and an presidential memorandum Kagan worked on in the Clinton White House which restricted the importation of certain firearms.
The first issue is easily disposed of. At the time Kagan wrote the 1987 memo, Heller was still 21 years away, and then-existing law clearly permitted laws banning firearms for personal use. Just as significantly, Justice Scalia was a member of the Court in 1987, yet he indicated no dissent from the Court’s decision not to hear the case Kagan recommended against their taking up.
The same is true about Kagan’s work on the Clinton-era memorandum, which sought to close a loophole permitting foreign gun manufacturers to import military-grade firearms such as Uzis into the United States. Scalia’s holding that government may restrict “weapons that are most useful in military service” is clearly consistent with President Clinton’s memo.
So Barrasso, Sessions and Pence are entitled to their radical opinions about what the Constitution does not permit. Before they attack Kagan’s views, however, they should look a little closer to home.