Vilely equating the National Rifle Association of America and the Ku Klux Klan might be fashionable in the bigoted confines of an Upper West Side cocktail party in Manhattan. But no one who presently holds such beliefs could be fit to serve on the Supreme Court. Nor could someone who equated other honorable civic organizations (such the NAACP, ACLU, AFL-CIO) to the Klan.
Does narrow‐mindedness have legal consequences? The record shows that it does.
Drafting Clinton’s 1997 order banning import of rifles that had been considered “sporting” and importable since 1968.
In 1994, Congress enacted a temporary (10‐year) ban on so‐called “assault weapons.” The manufacture and import of new “assault weapons” was banned.In 1990, Congress had enacted a different statute to prevent the domestic assembly from foreign parts of guns that President Bush had banned from importation in 1989. Thus, Congress had clearly defined what was a non‐importable “assault weapon.”
However, a more general law, the Gun Control Act of 1968 requires that to be importable, firearms must be “particularly suitable for or readily adaptable to sporting purposes.”
When the Bureau of Alcohol, Tobacco and Firearms was created in 1968, it took up the duty of determining which guns were importable. Under the BATF criteria, the import of many sporting rifles was allowed. Although some rifles have a cosmetic military appearance, the BATF criteria focused on the guns’ function.
Dissatisfied that firearms importers were strictly complying with the 1990 and 1994 statutory definitions of “assault weapons,” President Clinton wished to ban more gun imports. So he sidestepped Congress, decreed a suspension of import permits, and ordered a new study by BATF with the foregone conclusion that the targeted firearms would no longer be considered “sporting” and hence not importable.
Democratic Senator Pat Leahy, who was then the ranking member of the Senate Judiciary Committee, wrote to President Clinton that he “strongly believes that using a Presidential directive to avoid the normal legislative process regarding any changes to the assault weapons 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 regard to the import ban, this was not accurate. The very reason for imposing the ban administratively — for evading what Senator Leahy called “the normal legislative process” — was the absence of congressional support.
As requested by Clinton, Charles F.C. Ruff and Elena Kagan worked on drafting the ban directive.
The directive is filled with exaggerated rhetoric about what it mischaracterized as “Assault‐Type Rifles.” (Under the proper technical definition, an “assault rifle” is a selective‐fire weapon capable of full automatic fire. ) The Kagan‐Ruff directive states: “A recent letter from Senator Dianne Feinstein emphasized again that weapons of this type are designed not for sporting purposes but for the commission of crime.”
This was patent nonsense. It might be seriously believed by someone who had no experience with America’s broad culture of hunting and target shooting. But every one of the 58 banned guns was 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 to a supposed American market of criminals by selling them expensive rifles was ridiculous.
This kind of rhetoric defames the millions of law‐abiding Americans who purchased and own such rifles for lawful purposes.
To Senator Feingold, Ms. Kagan said that her White House work was “to keep guns out of the hands of criminals, to keep guns out of the hands of insane people.” Not so, in regards to the rifle ban. The ban was not directed to improving background checks, or cracking down on the black market. The ban kept guns out of the hands of law‐abiding American citizens.
As directed, BATF claimed that the rifles had become, overnight, no longer “particularly suitable for or readily adaptable to sporting purposes.” The basis for this new assertion was that BATF solicited comments from hunting guides, and found that the guns were rarely recommended for hunting trips.As if the only gun that is a “sporting” gun is one used by people who can afford to take trips with a professional guide. This is economic snobbery in the extreme — rather like claiming that the only foods permissible for human consumption are those which are the favorites of professional chefs.
In a minority of states, hunting is not allowed with magazines holding more than ten rounds.So therefore Kagan and the Clinton administration claimed that rifles which accept detachable clips that can hold more than ten rounds are not “sporting.”
But in fact, magazines of more than ten rounds are commonly used for many target shooting sports and competitions, and are required in some, as extensive evidence showed.
Besides, even if we presume that hunting according to the restrictive rules in a minority of states is the one and only firearms sport, the statute says: “particularly suitable for or readily adaptable to” sporting purposes.
A legal challenge was brought,but ATF’s newly‐minted application of 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 the importer’s contention that “even if its rifles are not ‘particularly suitable for’ ‘sporting purposes,’ they are ‘readily adaptable to’ that end because they can accept small magazines,” and accepted ATF’s view that “particularly suitable for or readily adaptable to” meant “particularly suitable for and readily adaptable to” sporting purposes. Id. at 818. The court accorded ATF discretion to deem shooting competitions and target shooting as not being “sporting purposes.” Id.
When the ban was announced, one of Kagan’s helpers in the White House, Jose Cerda stated, “We are taking the law and bending it as far 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 shooting competitions, or informal target practice. Kagan bent the law to claim that “or” means “and.” She banned 58 different models of rifles from the hands of law‐abiding American citizens.
Her legal skills were impressive. She had very accurately gauged how much the courts would let her get away with. Which was quite a lot.
A Supreme Court Justice has tremendous power to “bend” the law. Without over‐ruling Heller, a future Court could bend the law so much that much of the Second Amendment might be eviscerated.
As she accurately told Senator Feingold on June 29, 2010, the Supreme Court will soon have to set a standard of review for Second Amendment cases, and provide more guidance about what types of anti‐gun laws are unconstitutional.
Of Ms. Kagan’s activities in the Clinton White House took place before Heller was decided, but the idea that the Second Amendment guarantees a meaningful individual right was well‐known in the late 1990s.
Specific constitutional provisions aside, one of the most important jobs of the Supreme Court is to stop Executive Branch abuses of power. Ignoring a statute which says “or” — especially when the “or” was inserted for the specific purpose of reducing the government’s ability to ban guns, is itself an abuse of power. So is claiming that the sole standard for “sporting” use of guns is the activity of people who pay for professional guided hunts.
Ms. Kagan’s leading role in the 1997 import ban raises very serious concerns that as a Justice, she could turn a blind eye to Executive Branch abuses of the Second Amendment, and perhaps of other rights.
To her credit, on another import issue, Kagan did stick to the plain language of the law. The 1994 Crime Act banned magazines holding more than ten rounds, but only those “manufactured after the date of enactment” in 1994.Despite that clear language, BATF sought to apply the ban to all imported magazines. “The Department of Justice found that this [BATF’s] interpretation, which was challenged in two lawsuits, was not supportable as a matter of law.”
The Clinton archives include a BATF memo arguing that the law prohibited import of the magazines “regardless of the date of manufacture.” Kagan wrote: “Plain language, guys.“Indeed, the language was so plain that government counsel would not argue otherwise in litigation.
Suggestion of a Presidential decree criminalizing handgun sales if the Supreme Court invalidated the federal mandate that State and local law enforcement conduct background checks.
Printz v. United States, 521 U.S. 898 (1997), held that Congress could not commandeer State and local Chief Law Enforcement Officers (CLEOs) to conduct federal background checks on handgun purchasers. The provision of the Brady Act so requiring, 18 U.S.C. § 922(s)(2), was thus invalidated based on principles of Federalism and the Tenth Amendment.
After oral argument but before the decision was handed down, the following memo appeared: “Based on Elena’s suggestion, I have also asked both Treasury and Justice to give us options on what POTUS [President of the United States] could do by executive action — for example, could he, by executive order, prohibit a FFL [Federal Firearms Licensee] from selling a handgun w/o a CLEO certification.”
Yet the Brady Act was very clear that the only obligation of an FFL to a CLEO was to provide notice and a copy of a handgun transferee’s intent to receive a handgun. The FFL could then sell gun 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 purposes of allowing the handgun sale if the CLEO had not acted within five business days.
To suggest that the President might forbid the gun sale even after five business days had passed was flagrantly contrary to the direct and clear language of the Brady Act itself.
The best interpretation of the Kagan memo was that — flouting the law which Congress had enacted specifically to set the rules for handgun sales — Kagan was asking for a search for some other law which might be bent or stretched so that the President could claim the unilateral authority to ban handgun sales. And such a presidential order really would have been a ban, since in many jurisdictions (including the entire state of Ohio) local law enforcement chose to not perform background checks.
In some jurisdictions, law enforcement had no capability to perform the checks, even if they wanted to. For example, Sheriff Printz was responsible for a Montana county the size of Rhode Island. At any given time, there were only three sheriff’s department officers on duty, including the Sheriff himself. Stretched thin, they had no time to conduct investigations of all the handgun purchasers in the county.
At the worst, the Kagan query seems to assume an extraordinary power of the President to make law. The Supreme Court noted in the Steel Mills Seizure Cases: “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.…The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States.…’ ”Within minutes of the ruling, President Truman complied by returning the mills to their owners.
In contrast, as Ms. Kagan anticipated the Printz decision, she began searching for ways to evade the Court’s decision, and the plain language of the law enacted by Congress.
It has been often and accurately said that the Second Amendment cannot long endure without a robust First Amendment. Other witnesses will testify about Ms. Kagan’s record on the First Amendment, which is much more extensive than her Second Amendment record.
It is clear enough, however, that not since Robert Bork has the Senate Judiciary Committee held hearings on a Supreme Court nominee with a well‐established record of favoring substantial contraction of existing First Amendment rights.
McDonald v. Chicago was not the end of the Second Amendment story, but the beginning of an important new chapter. With guidance from the Supreme Court, lower courts all over the country will face many new questions under the Second Amendment. Is it constitutional that Illinois provides no legal way for a citizen to carry a firearm in public for lawful protection? That Maryland has a system for granting handgun carry permits, but that in practice almost no‐one except the politically influential is granted a permit? That New York City takes many months to process applications to possess a handgun in the home? That some Massachusetts permits require that a gun in the home never be loaded, even in self‐defense? That in New Jersey, it is a major felony to take your unloaded gun to a friend’s home, and allow him to examine the gun while you watch? That some jurisdictions ban guns because of cosmetic factors? That a 1971 conviction for marijuana possession prohibits a woman in 2010 from possessing any firearm, even if she has led an exemplary life since 1971? That federal law only allows sporting gun imports, but not imports of guns which are well‐suited for lawful self‐defense?
If some of these laws seem to Senators to be obviously unconstitutional, it must be remembered that the law can be bent and stretched; if a straightforward statute can be stretched beyond its plain meaning so as to allow an executive order banning 58 models of rifles, the more general language of the Second Amendment could be far easier to bend.
Hugo Black showed that despite a nominee’s background, it is sometimes appropriate to hope for the best rather than to fear the worst. Please consider each possibility carefully for Ms. Kagan.
1 STEVE SUITTS, HUGO BLACK OF ALABAMA: HOW HIS ROOTS AND EARLY CAREER SHAPED THE GREAT CHAMPION OF THE CONSTITUTION (2005).
2 Sasha Volokh, My own Kagan experience, THE VOLOKH CONSPIRACY weblog, May 11, 2010, 4:43 pm, http://volokh.com/2010/05/11/my-own-kagan-experience/. He also notes that Kagan, before becoming Dean, served as a cordial moderator for a gun control debate held at Harvard Law School.
3 Julie Hirschfeld Davis, Sotomayor’s stance 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. References are 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 bill introduced which actually was criticized “as a major giveaway to the gun industry and the NRA.” That bill protect the gun industry from lawsuits which had been filed some big‐city mayors, starting in late 1998. Eventually, that bill was enacted as the 2005 Protection of Lawful Commerce in Arms Act. Because some municipalities had sued firearms trade associations, like the National Shooting Sports Foundation, the bill included lawsuit protection for firearms business associations, arguably including the NRA. We know that Kagan’s comments could not be about the PLCAA, 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 been criticized as benefitting the gun industry, but it would not have benefited the NRA. The current White House spin makes no sense, since the subject line of the Allegra memo itself is “Charities Bill,” and the charitable volunteer bill is the only draft that is included in the folder. Kagan had separate, extensive files on product liability legislation.
9 Fran Allegra to Elena Kagan, March 27, 1996, KCL 0090586 (“For now, I think we need to be cautious in picking examples of organizations. If you have other names you want me to run down in the Cumulative List, I would be glad to check them out.”)
10 Ex. Doc. No. 268, 42nd Cong., 2d Sess. 2 (April 19, 1872) (emphasis added).
11 Quoted in BEN PERLEY POORE, THE LIFE AND PUBLIC SERVICES OF AMBROSE E. BURNSIDE: CITIZEN, SOLDIER, STATESMAN 265 (Providence: J.A. & R.A. Reid, 1882) (available on GoogleBooks).
12 With the exception of the Boy Scouts, who automatically make the current U.S. President into the Honorary Boy Scouts President.
13 Reprinted in Federal Firearms Legislation: Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States 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 for the Secretary of the Treasury, Subject: Importation of Modified Semiautomatic Assault‐Type Rifles, Nov. 14, 1997.
18 Memorandum for the President, Nov. 13, 1997. (Box 9, folder 3, p. 70.) References are to http://www.clintonlibrary.gov/textual-KaganDPC.htm.
19 “Assault rifles are short, compact, selective‐fire weapons .… Assault rifles … are capable of delivering effective full automatic fire .…” HAROLD E. JOHNSON, SMALL ARMS IDENTIFICATION & OPERATION GUIDE — EURASIAN COMMUNIST COUNTRIES 105 (Defense Intelligence Agency 1980).
20 So‐called assault weapons “were used in 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 used in crime are assault pistols rather than assault rifles.” Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003 (Report to the National Institute of Justice, U.S. Dep’t. of Justice 2004), at 2. The firearms at issue here were not even defined as “assault weapons.“
21 Department of the Treasury Study on the Importability of Modified Semiautomatic Assault Rifles (April 1998), http://www.atf.gov/publications/download/treas/treas-study-on-sporting-….
22 For example, for deer hunting with a rifle, the following 13 states have a magazine capacity restriction of 10 or less: Arizona, Colorado, Florida, Maine, Maryland, Mississippi, Nevada, New Hampshire, New York, Oklahoma, Oregon, South Dakota, Vermont.
23 Emphasis added. The Firearms Ownersâ€™ Protection Act of 1986 amended 18 U.S.C. § 925(d)(3) to state that “the Secretary shall authorize a firearm … to be imported if the firearm … is generally recognized as particularly suitable or readily adaptable to sporting purposes.” § 105, P.L. 99–308, 100 Stat. 449, 459 (1986). FOPAâ€™s “shall authorize” replaced “may authorize” language from the 1968 GCA. The old GCA had said that “the Secretary may authorize a firearm … to be imported … if the person importing … the firearm … establishes to the satisfaction of the Secretary” that the firearm “is generally recognized as particularly suitable or readily adaptable to sporting purposes.” FOPA passed the Senate 79–15, with 30 Democrats in favor and 13 opposed. Among the Democratic senators voting favor were Joe Biden, George Mitchell, John Glenn, and Al Gore. FOPA passed the House 292–130, with Democrats voting 131 in favor and 115 opposed. House Democrats who voted for FOPA included Tom Lantos, Tim Wirth, Lee Hamilton, Dan Glickman, Jim Florio, Mike Synar, Tom Daschle, Tom Foley, and Les Aspin. The lead House sponsor, Harold Volkmer, was a Democrat; he now serves on the NRA Board of Directors.
24 See Brief for Appellant, 2001 WL 36037956, and Reply Brief for Appellant, 2001 WL 36037958. Halbrook was counsel for appellant.
25 Steve Berry, Clinton Moves to Limit Import of Assault Guns, LOS ANGELES TIMES, Oct. 22, 1997.
26 The list of banned guns is available at BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, FEDERAL FIREARMS 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 Capacity Ammunition 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 not only invalidated the federal command to CLEOs, but added that the sheriff was “prohibited from taking on these federal responsibilities under state law.” Printz, 521 U.S. at 934 n.18. Nonetheless, President Clinton wrote an open letter to CLEOs nationwide urging them to continue to conduct the checks. As counsel for Sheriff Printz, Stephen Halbrook wrote to President Clinton and Attorney General Reno urging them to state that they were not suggesting that CLEOs violate their own State laws. (See Box 9, Folder 10, p. 48.) A response was drafted arguing that the CLEO checks would be justified as type of joint federal‐state criminal investigation. The draft was circulated to Kagan and others but never sent. (Box 9, Folder 10, p. 46–47.)
32 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–88 (1952).