by Doug Kendall, President & Founder, Constitutional Accountability Center

Conservative pundit Ken Klukowski recently alleged that a decision by Solicitor General Elena Kagan, President Obama’s nominee to succeed Justice John Paul Stevens on the Supreme Court, not to file a brief on behalf of the United States in the Supreme Court case of McDonald v. City of Chicago indicates that she is anti-gun rights. As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense.  It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.

In McDonald v. City of Chicago, which is still awaiting decision, petitioners have asked the Court to determine whether the Second Amendment individual right to bear arms – a right the Court recognized in the 2008 case Heller v. District of Columbia – applies against state and local governments.  In Heller, the Court struck down a handgun ban in D.C. that is similar to Chicago’s, holding that the Second Amendment protects citizens against such a ban by the federal government (which administers the District of Columbia).  However, the Court did not address whether that individual right applies against state and local governments – or in legal terms, whether it is “incorporated” into the Fourteenth Amendment against state and local infringement.   That is the question that will be answered in McDonald.

My organization, Constitutional Accountability Center, filed a friend-of-the-court brief supporting McDonald’s bid for incorporation.  Our brief, filed on behalf of a diverse group of respected constitutional scholars from across the political spectrum, argued in support of McDonald’s chief argument that the Second Amendment right to bear arms should be “incorporated” into the Fourteenth Amendment’s Privileges or Immunities Clause.  As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.

From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.  After all, McDonald arose from the President’s base city of Chicago, and Chicago Mayor Richard Daley is an adamant supporter of the Chicago handgun ban as a means of protecting the lives of Chicago citizens.  Historically, Democratic administrations have taken a stance in favor of gun control, meaning that, if anything, it would have seemed more likely that the Obama Administration would support Chicago in this case, at least in terms of advocating for a Second Amendment standard that does not call into question federal gun control statutes.

On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.  As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.”  Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.

I don’t want to overstate this.  We did find one brief filed by George W. Bush Solicitor General Paul Clement in a case called Cutter v. Wilkinson that argued for incorporation in defending the constitutionality of a federal statute, and I think the federal government does have a very important interest in making sure that constitutional rights, including the Second Amendment, apply against the states in the same manner that they apply against the federal government.  I urged the United States to take that position. But I was not surprised – given the tradition of not weighing in on incorporation cases, the fact that the United States was not a party, and the fact that this case originated from Chicago  – that the United States chose to stay on the sidelines.  General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.

To reach the opposite conclusion, Klukowski plays fast and loose with the facts.  For example, he argues the following:
If someone asserts that the solicitor general shouldn’t file a brief because it’s a state matter as to whether the Second Amendment is “incorporated” to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court “incorporated” a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) got divided argument time to express the government’s views in front of the Court.
Actually, the record is contrary to Klukowski’s version.  The Solicitor General did file a brief and did receive argument time in Benton – I tracked down this hard-to-find brief before meeting with General Kagan — but he studiously avoided taking a position on the incorporation issue.  Thus, the Benton brief supports, rather than undercuts, the idea that the United States traditionally stays out of incorporation fights.

Klukoswki also tries to make General Kagan look bad by contrasting her alleged lack of support for gun rights in McDonald with the Second Amendment position taken by Bush Solicitor General Paul Clement in Heller. General Clement did file a brief and request argument time in that case.  But while Clement encouraged the Court to find a limited individual right to bear arms, he also urged it to preserve the federal government’s ability to regulate gun use, a position that invoked intense ire from the National Rifle Association and other supporters of Mr. Heller, who, as noted by SCOTUSBlog, went so far as to list the Bush Administration’s brief among those supporting the District of Columbia, not Heller.

Finally, it bears noting that Klukowski himself filed a brief in McDonald assailing Mr. McDonald’s primary and strongest textual argument for incorporation: the argument that the Court should incorporate the Second Amendment into the Privileges or Immunities Clause of the Fourteenth  Amendment.  Mr. Klukowski supports his argument against incorporating in the manner intended by the framers of the Fourteenth Amendment out of policy concerns.   In this breathless piece in the Washington Times, Klukowski argued that restoring the original meaning of the Fourteenth Amendment could lead to the “unhinging of the American culture.”  Thus, if anyone undermined the constitutional basis for incorporation in McDonald, it’s not Elena Kagan, it is Ken Klukowski himself.