Confirmation Hearings for the Appointment of Elena Kagan to the Supreme Court of the United States of America

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In regard to Second Amendment issues, Senators should carefullyconsider whether Elena Kagan will be a Supreme Court Justice likeHugo Black. In other words, can the Justice overcome a prejudicedbackground and professional record in order to become a Justice whowill fully protect constitutional rights?

Justice Black certainly did so. In Alabama, he had joined the KuKlux Klan, and was elected to the U.S. Senate as the Klan'scandidate. As a practicing attorney, he had engaged in viciousrace-baiting in the courtroom against people of color.Yet on theSupreme Court, Justice Black vigorously enforced the constitutionalrules, such as the Equal Protection clause, against treating peopleof color as second-class citizens. He likewise staunchly defendedthe free speech, free press, assembly, and association right ofcivil rights organizations such as the NAACP. Today he is rightlyremembered as a great Supreme Court Justice.

As we will detail, there are many items in Ms. Kagan's twentiethcentury legal record which raise very troubling concerns that shewould not fully protect the Second Amendment rights of Americans,but instead would be willing to stretch the law in order to promoteoppressive anti-gun laws and gun bans.

However, her record in the twenty-first century at leastsuggests the possibility of a more open-minded attitude. Alexander"Sasha" Volokh is an Assistant Professor at Emory Law School. Heattended Harvard Law School while Ms. Kagan was there. Herecalls:

In particular - and despite her presumablypro-gun-control views (see the David Kopel post below), she was agood friend of the HLS Target Shooting Club, which I founded inFall 2001 and was the president of for two years.

There are plenty of law schools where the Dean would not be "agood friend" of a Target Shooting Club. While this one piece ofevidence about Dean Kagan is not conclusive, it does suggest thatSenators that there is at least a possibility that her attitudetowards gun owners, firearms organizations, and the SecondAmendment has changed since the twentieth century.

If and only if her attitude as a Justice were dramaticallydifferent from her earlier record on gun issues - as Deputy WhiteHouse Counsel and as a Supreme Court clerk, would there be reasonto hope that as a Supreme Court Justice, she would fulfill her dutyto respect and protect Second Amendment rights.

The unfortunate lesson of the confirmation of Justice Sotomayoris that Senators who care about the Second Amendment cannot rely onplatitudes about "settled law" or even direct promises to abide byHeller. Before this Committee, Ms. Sotomayor declared, "Iunderstand the individual right fully that the Supreme Courtrecognized in Heller." And, "I understand how importantthe right to bear arms is to many, many Americans."

To the Senate Judiciary Committee, Justice Sotomayor repeatedlyaverred that Heller is "settled law." The Associated Pressreported that Sen. Mark Udall "said Sotomayor told him during aprivate meeting that she considers the 2008 ruling that struck downa Washington, D.C., handgun ban as settled law that would guide herdecisions in future cases."

Yet on June 28, 2010, Justice Sotomayor joined Justice Breyer'sdissenting opinion in McDonald v. Chicago, and announcedthat Heller was wrongly decided and should be over-ruled.Apparently her true belief was not what she told this Committee,but instead: "In sum, the Framers did not write the SecondAmendment in order to protect a private right of armed selfdefense."

So by "settled law," nominee Sotomayor seems to have meant "notsettled; should be overturned immediately."

Accordingly, statements from Ms. Kagan about Hellerbeing "settled law" provide not an iota of assurance that as aJustice she would support Heller, rather than attempt toeliminate it.

Evidence of a hostile attitude towards the Second Amendment canbe found starting at the beginning of her legal career.

Adding to concerns is that her answer to this Committee on June29 about the infamous NRA/KKK comparison was incomplete andsomewhat misleading.

"Not sympathetic" to Second Amendment claim.Sandidge v. United States, 520 A.2d 1057 (D.C. 1987),cert. denied, 484 U.S. 193 (1987), held that the SecondAmendment only protects "collective" rights and not individualrights, and upheld D.C.'s handgun ban. As clerk for JusticeThurgood Marshall, Kagan recommended against Supreme Court reviewwith the comment: "Petitioner's sole contention is that theDistrict of Columbia's firearms statutes violate his constitutionalright to 'keep and bear Arms.' I'm not sympathetic."

District of Columbia v. Heller, 128 S. Ct. 2783 (2008),resolved that the right is indeed individual and invalidated theDistrict's handgun ban. The dissents in that case reflect thecontinued lack of sympathy by some for the view that "the right ofthe people to keep and bear arms" refers, as do the First andFourth Amendments, to a right of all individual American's.

Obviously the phrase "I'm not sympathetic" expressed Kagan'spersonal views. It cannot be brushed off as a clerk expressing herJustice's views.

Unfortunately, evidence of prejudice also appears much later inMs. Kagan's career.

Comparing the NRA and the KKK as "Bad guyorgs." In a March 1996 document on the proposed VolunteerProtection Act, Kagan expressed concern to Justice DepartmentAttorney Fran Allegra that "Bad guy orgs" like the National RifleAssociation and the Ku Klux Klan might be protected fromlawsuits.Allegra assured Kagan that the NRA and KKK would notqualify, since they are not on the IRS list of non-profits; Allegraadded: "We probably need to be careful about suggesting 'bad'organizations will qualify for the provision bill as it wouldsuggest we are allowing 'bad' organizations to qualify fortax-exempt status."

The comparison is outrageous and malicious. There is all thedifference in the world between a civil rights group that is apolitical opponent of the current president - and an organizationcreated for terrorism and racial oppression

The White House explanation of the statement was implausible.According to the Washington Post:

Here's the White House version of events. At the time,two separate things were going on simultaneously. First, Clintonofficials were concerned that the proposal would make it tougherfor victims of gun violence to pursue liability claims. Officialsviewed the bill as a major giveaway to the gun industry and theNRA. As part of analyzing the impact in this area, Clinton lawyerslooked at how it would benefit the NRA.

In a second, separate development, Democratic members of Congresswere worried that the act could protect the KKK and other hategroups from liability. Senator Patrick Leahy branded it the "KKKprotection act." That prompted Clinton lawyers to analyze how itwould impact such groups - the KKK included.

If we hypothesize that this explanation is truthful, it wouldreveal legal incompetence. The Volunteer Protection Act was toprotect volunteers. It obviously had nothing to do with "the gunindustry" - which like other industries, uses paid employees, notvolunteers.

Accordingly, the 2010 White House explanation about Kagan'scomment is not credible. Ms. Kagan is obviously intelligent enoughto know the difference that a volunteer protection bill (whichmight protect the NRA, since the NRA has many volunteers) would notprotect "the gun industry."

Before this Committee, Ms. Kagan provided an entirely differentanswer. The very existence of shifting explanations raises seriousconcerns about veracity.

She told Senator Kyl that the NRA and KKK line was merely hernotation of something that someone had told her on the telephone.This could perhaps be true for one specific document. But adifferent document, from Ms. Allegra, makes it clear that it wasKagan who was instructing Allegra specifically to look up thenon-profit status of the KKK and the NRA.

It appears that neither the White House version nor the Kaganversion of the story provides a full and credible explanation ofwhat happened. Thus, it may be reasonable consider the remarkaccording to the natural meaning of the words: reflecting anarrow-minded, mean-spirited, and very prejudiced animosity towardsAmerica's oldest civil rights organization.

It is unfortunately true that a person whose entire life hasbeen spent in Manhattan, Cambridge, Chicago, and Washington mayhave a very parochial and ill-informed view of the NRA. Just as aperson who in the first half of the twentieth century had onlylived in Clinton, Mississippi; Hattiesburg, Mississippi; Clinton,Alabama; and Muscle Shoals, Mississippi, might have a veryinaccurate and prejudiced view of the NAACP.

Some judges overcome a narrow background, but some do not.

It is worth noting that Kagan's twinning of the NRA and the KKKreflects a profound ignorance of some important parts of ournation's history.

The President who decimated the first Ku Klux Klan was UlyssesS. Grant. He signed the Anti-Ku Klux Klan Act in 1871 (parts ofwhich survive today as 42 U.S.C. §§ 1983 and 1985-86). Ina report to Congress the following year, President Grant describedparts of the South as

under the sway of powerful combinations popularly knownas "Ku-Klux Klans," the objects of which were, by force and terror,to prevent all political action not in accord with the views of themembers, to deprive colored citizens of the right to bear arms andof the right to a free ballot, to suppress schools in which coloredcitizens were taught, and to reduce the colored people to acondition closely akin to that of slavery....

Carrying out his constitutional duty to see that the laws befaithfully executed, President Grant devoted substantial federalresources - including the military - to suppressing the domesticterrorist organization.

After having been twice elected President of the United States,Ulysses Grant was later elected President of the National RifleAssociation, serving in 1883 as the NRA's eighth President.

From the NRA's founding in 1871, nine of the NRA's first tenpresidents were high-ranking Union officers during the CivilWar.

The NRA has always stood up for civil rights, including theright to keep and bear arms without regard to race, color, orcreed. The historic role of the KKK was to deprive AfricanAmericans of this right.

The cofounder of the NRA was General Ambose Everett Burnside,who had recently finished two terms as Governor of Rhode Island. Asa Union General, he had been a leader at integrating the freedmeninto combat roles. As the Providence Journal later put it,Burnside was "One of the first of the regular army officers toapprove heartily of Mr. Lincoln's emancipation policy, he was alsoone of the first to favor the arming of black troops, and one ofthe most successful in training them for action."

After founding the NRA, Burnside was elected Senator from RhodeIsland. He fought against racial segregation in the military, andproposed that West Point adopt an affirmative action admissionsplan for blacks.

The sixth NRA President, General Winfield Scott Hancock, wasnationally extolled as "the hero of Gettysburg." As Democraticnominee for U.S. President in 1880, he had lost the popular vote byless than 10,000 votes, and if he had won the swing state of NewYork, he would have won the electoral vote. Hancock was remarkablefor his time, always treating black people as equals, even beforethe Civil War. In 1880, Hancock led a national campaign tovindicate a black cadet at West Point who had been attacked by somewhite cadets, but whom the West Point administration claimed hadinjured himself.

The NRA's Articles of Incorporation omitted something that wascommon for other sporting organizations at the time: a racialexclusion clause. In contrast to many other organizations and clubscreated in the late 19th and early 20th centuries - such as theU.S. Lawn Tennis Association, the Professional Golf Association,the New York Athletic Club (for track and field), and the AmateurAthletic Union (same), the NRA welcomed members and athletes ofevery race.

The NRA was the governing body for the sport of rifle shooting,and eventually became the governing body for almost all theshooting sports. In this way, the NRA set a good example of racialintegration and equality for the millions of Americans whoparticipated in the shooting sports. Even during the worst of JimCrow, a NRA match was one place where blacks and whites wereexactly equal, and where skin color did not matter.

In the very segregated Washington, D.C., of the 1930s and 1940s,the shooting range at NRA National Headquarters was the onlyintegrated place where a young black man could go and feel fullywelcome. At least that was the experience of Richard Atkinson, ablack man who grew up in the District during those years, and whowas later was elected a director of the National RifleAssociation.

The NRA's contribution to America are not limited to racialequality. The NRA has instructed millions of Americans how tohandle guns safely and responsibly. Since the 1980s, the NRAs"Eddie Eagle" program has taught over ten million children that ifthey see a gun, "Stop! Don't touch! Leave the area. Tell an adult."The NRA has trained much of the nation's police, and many of thenation's police trainers. Eight U.S. Presidents have been NRAmembers - probably more than of any other civic organization in theUnited States.

After World War II, President Harry S. Truman thanked theNRA:

During the war just ended, the contributions of theAssociation in the matter of small-arms training aids, thenation-wide pre-induction training program, the recruiting ofexperienced small-arms instructors for all branches of the armedservices, and technical advice and assistance to Governmentcivilian agencies aiding in the prosecution of the war - allcontributed freely and without expense to the Government - havematerially aided our war effort.

Vilely equating the National Rifle Association of America andthe Ku Klux Klan might be fashionable in the bigoted confines of anUpper West Side cocktail party in Manhattan. But no one whopresently holds such beliefs could be fit to serve on the SupremeCourt. Nor could someone who equated other honorable civicorganizations (such the NAACP, ACLU, AFL-CIO) to the Klan.

Does narrow-mindedness have legal consequences? The record showsthat it does.

Drafting Clinton's 1997 order banning import of riflesthat had been considered "sporting" and importable since1968.

In 1994, Congress enacted a temporary (10-year) ban on so-called"assault weapons." The manufacture and import of new "assaultweapons" was banned.In 1990, Congress had enacted a differentstatute to prevent the domestic assembly from foreign parts of gunsthat President Bush had banned from importation in 1989. Thus,Congress had clearly defined what was a non-importable "assaultweapon."

However, a more general law, the Gun Control Act of 1968requires that to be importable, firearms must be "particularlysuitable for or readily adaptable to sporting purposes."

When the Bureau of Alcohol, Tobacco and Firearms was created in1968, it took up the duty of determining which guns wereimportable. Under the BATF criteria, the import of many sportingrifles was allowed. Although some rifles have a cosmetic militaryappearance, the BATF criteria focused on the guns' function.

Dissatisfied that firearms importers were strictly complyingwith the 1990 and 1994 statutory definitions of "assault weapons,"President Clinton wished to ban more gun imports. So he sidesteppedCongress, decreed a suspension of import permits, and ordered a newstudy by BATF with the foregone conclusion that the targetedfirearms would no longer be considered "sporting" and hence notimportable.

Democratic Senator Pat Leahy, who was then the ranking member ofthe Senate Judiciary Committee, wrote to President Clinton that he"strongly believes that using a Presidential directive to avoid thenormal legislative process regarding any changes to the assaultweapons ban is the wrong way to go."

In response to question from Senator Russ Feingold on June 29,Ms. Kagan said that her gun control work with President Clinton"actually bipartisan support here in Congress." At least in regardto the import ban, this was not accurate. The very reason forimposing the ban administratively - for evading what Senator Leahycalled "the normal legislative process" - was the absence ofcongressional support.

As requested by Clinton, Charles F.C. Ruff and Elena Kaganworked on drafting the ban directive.

The directive is filled with exaggerated rhetoric about what itmischaracterized as "Assault-Type Rifles." (Under the propertechnical definition, an "assault rifle" is a selective-fire weaponcapable of full automatic fire. ) The Kagan-Ruff directive states:"A recent letter from Senator Dianne Feinstein emphasized againthat weapons of this type are designed not for sporting purposesbut for the commission of crime."

This was patent nonsense. It might be seriously believed bysomeone who had no experience with America's broad culture ofhunting and target shooting. But every one of the 58 banned gunswas used in target competitions. Some had names like "Hunter" or"Sporter."

The notion that respectable European sporting gun companies,some of which have been in business for centuries, were catering toa supposed American market of criminals by selling them expensiverifles was ridiculous.

This kind of rhetoric defames the millions of law-abidingAmericans who purchased and own such rifles for lawfulpurposes.

To Senator Feingold, Ms. Kagan said that her White House workwas "to keep guns out of the hands of criminals, to keep guns outof the hands of insane people." Not so, in regards to the rifleban. The ban was not directed to improving background checks, orcracking down on the black market. The ban kept guns out of thehands of law-abiding American citizens.

As directed, BATF claimed that the rifles had become, overnight,no longer "particularly suitable for or readily adaptable tosporting purposes." The basis for this new assertion was that BATFsolicited comments from hunting guides, and found that the gunswere rarely recommended for hunting trips.As if the only gun thatis a "sporting" gun is one used by people who can afford to taketrips with a professional guide. This is economic snobbery in theextreme - rather like claiming that the only foods permissible forhuman consumption are those which are the favorites of professionalchefs.

In a minority of states, hunting is not allowed with magazinesholding more than ten rounds.So therefore Kagan and the Clintonadministration claimed that rifles which accept detachable clipsthat can hold more than ten rounds are not "sporting."

But in fact, magazines of more than ten rounds are commonly usedfor many target shooting sports and competitions, and are requiredin some, as extensive evidence showed.

Besides, even if we presume that hunting according to therestrictive rules in a minority of states is the one and onlyfirearms sport, the statute says: "particularly suitable for orreadily adaptable to" sporting purposes.

A legal challenge was brought,but ATF's newly-minted applicationof the sporting criteria was upheld under the doctrine of"deference" to agency expertise. Springfield, Inc. v.Buckles, 292 F.3d 813 (D.C. Cir. 2002). The court rejected theimporter's contention that "even if its rifles are not'particularly suitable for' 'sporting purposes,' they are 'readilyadaptable to' that end because they can accept small magazines,"and accepted ATF's view that "particularly suitable for or readilyadaptable to" meant "particularly suitable for and readilyadaptable to" sporting purposes. Id. at 818. The courtaccorded ATF discretion to deem shooting competitions and targetshooting as not being "sporting purposes." Id.

When the ban was announced, one of Kagan's helpers in the WhiteHouse, Jose Cerda stated, "We are taking the law and bending it asfar as we can to capture a whole new class of guns."

Mr. Cerda was exactly right. Kagan bent the law to claim that"sporting" gun use does not include formal target shootingcompetitions, or informal target practice. Kagan bent the law toclaim that "or" means "and." She banned 58 different models ofrifles from the hands of law-abiding American citizens.

Her legal skills were impressive. She had very accurately gaugedhow much the courts would let her get away with. Which was quite alot.

A Supreme Court Justice has tremendous power to "bend" the law.Without over-ruling Heller, a future Court could bend thelaw so much that much of the Second Amendment might beeviscerated.

As she accurately told Senator Feingold on June 29, 2010, theSupreme Court will soon have to set a standard of review for SecondAmendment cases, and provide more guidance about what types ofanti-gun laws are unconstitutional.

Of Ms. Kagan's activities in the Clinton White House took placebefore Heller was decided, but the idea that the SecondAmendment guarantees a meaningful individual right was well-knownin the late 1990s.

Specific constitutional provisions aside, one of the mostimportant jobs of the Supreme Court is to stop Executive Branchabuses of power. Ignoring a statute which says "or" - especiallywhen the "or" was inserted for the specific purpose of reducing thegovernment's ability to ban guns, is itself an abuse of power. Sois claiming that the sole standard for "sporting" use of guns isthe activity of people who pay for professional guided hunts.

Ms. Kagan's leading role in the 1997 import ban raises veryserious concerns that as a Justice, she could turn a blind eye toExecutive Branch abuses of the Second Amendment, and perhaps ofother rights.

To her credit, on another import issue, Kagan did stick to theplain language of the law. The 1994 Crime Act banned magazinesholding more than ten rounds, but only those "manufactured afterthe date of enactment" in 1994.Despite that clear language, BATFsought to apply the ban to all imported magazines. "The Departmentof Justice found that this [BATF's] interpretation, which waschallenged in two lawsuits, was not supportable as a matter oflaw."

The Clinton archives include a BATF memo arguing that the lawprohibited import of the magazines "regardless of the date ofmanufacture." Kagan wrote: "Plain language, guys."Indeed, thelanguage was so plain that government counsel would not argueotherwise in litigation.

Suggestion of a Presidential decree criminalizinghandgun sales if the Supreme Court invalidated the federal mandatethat State and local law enforcement conduct backgroundchecks.

Printz v. United States, 521 U.S. 898 (1997), held thatCongress could not commandeer State and local Chief Law EnforcementOfficers (CLEOs) to conduct federal background checks on handgunpurchasers. The provision of the Brady Act so requiring, 18 U.S.C.§ 922(s)(2), was thus invalidated based on principles ofFederalism and the Tenth Amendment.

After oral argument but before the decision was handed down, thefollowing memo appeared: "Based on Elena's suggestion, I have alsoasked both Treasury and Justice to give us options on what POTUS[President of the United States] could do by executive action - forexample, could he, by executive order, prohibit a FFL [FederalFirearms Licensee] from selling a handgun w/o a CLEOcertification."

Yet the Brady Act was very clear that the only obligation of anFFL to a CLEO was to provide notice and a copy of a handguntransferee's intent to receive a handgun. The FFL could then sellgun after either: 1. Receiving authorization from the CLEO, or 2.After five business days had passed. 18 U.S.C. §922(s)(1)(A).

The Brady Act was written in this way for the specific purposesof allowing the handgun sale if the CLEO had not acted within fivebusiness days.

To suggest that the President might forbid the gun sale evenafter five business days had passed was flagrantly contrary to thedirect and clear language of the Brady Act itself.

The best interpretation of the Kagan memo was that - floutingthe law which Congress had enacted specifically to set the rulesfor handgun sales - Kagan was asking for a search for some otherlaw which might be bent or stretched so that the President couldclaim the unilateral authority to ban handgun sales. And such apresidential order really would have been a ban, since in manyjurisdictions (including the entire state of Ohio) local lawenforcement chose to not perform background checks.

In some jurisdictions, law enforcement had no capability toperform the checks, even if they wanted to. For example, SheriffPrintz was responsible for a Montana county the size of RhodeIsland. At any given time, there were only three sheriff'sdepartment officers on duty, including the Sheriff himself.Stretched thin, they had no time to conduct investigations of allthe handgun purchasers in the county.

At the worst, the Kagan query seems to assume an extraordinarypower of the President to make law. The Supreme Court noted in theSteel Mills Seizure Cases: "In the framework of ourConstitution, the President's power to see that the laws arefaithfully executed refutes the idea that he is to be a lawmaker. .. .The first section of the first article says that 'Alllegislative Powers herein granted shall be vested in a Congress ofthe United States....'"Within minutes of the ruling, PresidentTruman complied by returning the mills to their owners.

In contrast, as Ms. Kagan anticipated the Printzdecision, she began searching for ways to evade the Court'sdecision, and the plain language of the law enacted byCongress.

First Amendment
It has been often and accurately said that the Second Amendmentcannot long endure without a robust First Amendment. Otherwitnesses will testify about Ms. Kagan's record on the FirstAmendment, which is much more extensive than her Second Amendmentrecord.

It is clear enough, however, that not since Robert Bork has theSenate Judiciary Committee held hearings on a Supreme Court nomineewith a well-established record of favoring substantial contractionof existing First Amendment rights.

Conclusion
McDonald v. Chicago was not the end of the SecondAmendment story, but the beginning of an important new chapter.With guidance from the Supreme Court, lower courts all over thecountry will face many new questions under the Second Amendment. Isit constitutional that Illinois provides no legal way for a citizento carry a firearm in public for lawful protection? That Marylandhas a system for granting handgun carry permits, but that inpractice almost no-one except the politically influential isgranted a permit? That New York City takes many months to processapplications to possess a handgun in the home? That someMassachusetts permits require that a gun in the home never beloaded, even in self-defense? That in New Jersey, it is a majorfelony to take your unloaded gun to a friend's home, and allow himto examine the gun while you watch? That some jurisdictions banguns because of cosmetic factors? That a 1971 conviction formarijuana possession prohibits a woman in 2010 from possessing anyfirearm, even if she has led an exemplary life since 1971? Thatfederal law only allows sporting gun imports, but not imports ofguns which are well-suited for lawful self-defense?

If some of these laws seem to Senators to be obviouslyunconstitutional, it must be remembered that the law can be bentand stretched; if a straightforward statute can be stretched beyondits plain meaning so as to allow an executive order banning 58models of rifles, the more general language of the Second Amendmentcould be far easier to bend.

Hugo Black showed that despite a nominee's background, it issometimes appropriate to hope for the best rather than to fear theworst. Please consider each possibility carefully for Ms.Kagan.


1 STEVE SUITTS, HUGO BLACK OFALABAMA: HOW HIS ROOTS AND EARLY CAREER SHAPED THE GREAT CHAMPIONOF THE CONSTITUTION (2005).
2 Sasha Volokh, My own Kaganexperience, THE VOLOKH CONSPIRACY weblog, May 11, 2010, 4:43 pm,http://volokh.com/2010/05/11/my-own-kagan-experience/. He alsonotes that Kagan, before becoming Dean, served as a cordialmoderator for a gun control debate held at Harvard LawSchool.
3 Julie Hirschfeld Davis, Sotomayor'sstance on gun rights prompts questions, ASSOCIATED PRESS, June 12,2009.
4 McDonald v. Chicago, 561 U.S. __,slip op. at 31 (2010) (Breyer, J., dissenting).
5 Box 70, Folder 6, p. 4. Referencesare to http://www.clintonlibrary.gov/textual-KaganDPC.htm.
6 Id. at 19.
7 Greg Sargent, The Plum Line,Washington Post online, June 18, 2010; 3:21 PM ET,http://voices.washingtonpost.com/plum-line/2010/06/latest_attack_on_kag….
8 Several years later, there was a billintroduced which actually was criticized "as a major giveaway tothe gun industry and the NRA." That bill protect the gun industryfrom lawsuits which had been filed some big-city mayors, startingin late 1998. Eventually, that bill was enacted as the 2005Protection of Lawful Commerce in Arms Act. Because somemunicipalities had sued firearms trade associations, like theNational Shooting Sports Foundation, the bill included lawsuitprotection for firearms business associations, arguably includingthe NRA. We know that Kagan's comments could not be about thePLCAA, which as of 1996 had not even been introduced. As of 1996,Congress was considering a broad product liability reform bill(Gorton-Rockefeller). Conceivably, that bill might have beencriticized as benefitting the gun industry, but it would not havebenefited the NRA. The current White House spin makes no sense,since the subject line of the Allegra memo itself is "CharitiesBill," and the charitable volunteer bill is the only draft that isincluded in the folder. Kagan had separate, extensive files onproduct liability legislation.
9 Fran Allegra to Elena Kagan, March27, 1996, KCL 0090586 ("For now, I think we need to be cautious inpicking examples of organizations. If you have other names you wantme to run down in the Cumulative List, I would be glad to checkthem out.")
10 Ex. Doc. No. 268, 42nd Cong., 2dSess. 2 (April 19, 1872) (emphasis added).
11 Quoted in BEN PERLEY POORE, THE LIFEAND PUBLIC SERVICES OF AMBROSE E. BURNSIDE: CITIZEN, SOLDIER,STATESMAN 265 (Providence: J.A. & R.A. Reid, 1882) (availableon GoogleBooks).
12 With the exception of the BoyScouts, who automatically make the current U.S. President into theHonorary Boy Scouts President.
13 Reprinted in Federal FirearmsLegislation: Hearings Before the Subcommittee to InvestigateJuvenile Delinquency of the Committee on the Judiciary, UnitedStates Senate, 90th Cong. 484 (1968).
14 18 U.S.C. §§ 921(a)(30)(definition), 922(v) (prohibition).
15 18 U.S.C. § 925(d)(3).
16 President Clinton's Memorandum forthe Secretary of the Treasury, Subject: Importation of ModifiedSemiautomatic Assault-Type Rifles, Nov. 14, 1997.
17http://rpc.senate.gov/releases/1998/importban-kf.htm.
18 Memorandum for the President, Nov.13, 1997. (Box 9, folder 3, p. 70.) References are tohttp://www.clintonlibrary.gov/textual-KaganDPC.htm.
19 "Assault rifles are short, compact,selective-fire weapons .... Assault rifles ... are capable ofdelivering effective full automatic fire ...." HAROLD E. JOHNSON,SMALL ARMS IDENTIFICATION & OPERATION GUIDE - EURASIANCOMMUNIST COUNTRIES 105 (Defense Intelligence Agency 1980).
20 So-called assault weapons "were usedin only a small fraction of gun crimes prior to the ban: about 2%according to most studies and no more than 8%. Most of the AWs usedin crime are assault pistols rather than assault rifles."Christopher S. Koper, An Updated Assessment of the Federal AssaultWeapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003(Report to the National Institute of Justice, U.S. Dep't. ofJustice 2004), at 2. The firearms at issue here were not evendefined as "assault weapons."
21 Department of the Treasury Study onthe Importability of Modified Semiautomatic Assault Rifles (April1998),http://www.atf.gov/publications/download/treas/treas-study-on-sporting-….
22 For example, for deer hunting with arifle, the following 13 states have a magazine capacity restrictionof 10 or less: Arizona, Colorado, Florida, Maine, Maryland,Mississippi, Nevada, New Hampshire, New York, Oklahoma, Oregon,South Dakota, Vermont.
23 Emphasis added. The FirearmsOwners’ Protection Act of 1986 amended 18 U.S.C.§ 925(d)(3) to state that "the Secretary shall authorize afirearm ... to be imported if the firearm ... is generallyrecognized as particularly suitable or readily adaptable tosporting purposes." § 105, P.L. 99-308, 100 Stat. 449, 459(1986). FOPA’s "shall authorize" replaced "mayauthorize" language from the 1968 GCA. The old GCA had said that"the Secretary may authorize a firearm ... to be imported ... ifthe person importing ... the firearm ... establishes to thesatisfaction of the Secretary" that the firearm "is generallyrecognized as particularly suitable or readily adaptable tosporting purposes." FOPA passed the Senate 79-15, with 30 Democratsin favor and 13 opposed. Among the Democratic senators voting favorwere Joe Biden, George Mitchell, John Glenn, and Al Gore. FOPApassed the House 292-130, with Democrats voting 131 in favor and115 opposed. House Democrats who voted for FOPA included TomLantos, Tim Wirth, Lee Hamilton, Dan Glickman, Jim Florio, MikeSynar, Tom Daschle, Tom Foley, and Les Aspin. The lead Housesponsor, Harold Volkmer, was a Democrat; he now serves on the NRABoard of Directors.
24 See Brief for Appellant, 2001 WL36037956, and Reply Brief for Appellant, 2001 WL 36037958. Halbrookwas counsel for appellant.
25 Steve Berry, Clinton Moves to LimitImport of Assault Guns, LOS ANGELES TIMES, Oct. 22, 1997.
26 The list of banned guns is availableat BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, FEDERALFIREARMS REGULATIONS GUIDE 2005 (ATF pub. 5300.4, Sept. 2005), p.167.http://www.atf.gov/publications/download/p/atf-p-5300-4.pdf.
27 18 U.S.C.§ 921(a)(31)(A).
28 "Importation of Large CapacityAmmunition Feeding Devices," undated. (Box 9, Folder 2, p.11.)
29 Box 6, Folder 12, p. 20.
30 Dennis K. Burke 03/17/9711:02:31 AM,Box 9, Folder 14, p. 27.
31 In Printz, the Supreme Court notonly invalidated the federal command to CLEOs, but added that thesheriff was "prohibited from taking on these federalresponsibilities under state law." Printz, 521 U.S. at 934 n.18.Nonetheless, President Clinton wrote an open letter to CLEOsnationwide urging them to continue to conduct the checks. Ascounsel for Sheriff Printz, Stephen Halbrook wrote to PresidentClinton and Attorney General Reno urging them to state that theywere not suggesting that CLEOs violate their own State laws. (SeeBox 9, Folder 10, p. 48.) A response was drafted arguing that theCLEO checks would be justified as type of joint federal-statecriminal investigation. The draft was circulated to Kagan andothers but never sent. (Box 9, Folder 10, p. 46-47.)
32 Youngstown Sheet & Tube Co. v.Sawyer, 343 U.S. 579, 587-88 (1952).

David B. Kopel and Stephen P. Halbrook

Committee on the Judiciary
United States Senate