The conventional wisdom after Wednesday’s oral arguments in New York State Rifle & Pistol Association v. Bruen is that the six justices on the Supreme Court’s conservative wing appear ready to overturn New York’s arbitrary and subjective laws surrounding the issuance of concealed carry permits. I don’t disagree, but I’m also not discounting the possibility of one or more of the three liberal justices joining with their conservative colleagues in at least part of the majority opinion when it’s released sometime next year.
Justice Elena Kagan wasn’t on the Court when it decided the Heller and McDonald cases in 2008 and 2010, so she’s never been a part of a Second Amendment case since was confirmed. While there was certainly no reason to think that Kagan had much respect for the right to keep and bear arms when she was nominated to the Court by Barack Obama, the justice did receive at least some hands-on education in real gun safety thanks to her friendship with Justice Antonin Scalia. As Kagan explained in 2013:
“I shoot birds with him, fairly — you know, two or three times a year now,” Justice Kagan said during a wide-ranging and delightful Aspen Ideas Festival conversation with Jeffrey Rosen, president of the National Constitution Center, on Saturday. “And then he um, at the end of last year we had been bird shooting four or five times. I’ll tell you how that came to be. But before I do, before I — he said to me, ‘It’s time for big game hunting.’ And we actually went out to Wyoming this past fall to shoot deer and antelope. Uh, and we did.”
“You’re getting some hisses from the audience. I hope you were a better shot than Dick Cheney,” Rosen interjected as a smattering of hisses emerged from around the room at the mention of hunting in Wyoming.
“I shot myself a deer,” Kagan continued. “The way this started, I’ll tell the story. You know the NRA has become quite a presence in judicial confirmations, and that means when you go around from office to office, from chamber to chamber, I met with about 80 senators individually and quite a lot of them, both Republicans and Democrats, ask you about your views on the Second Amendment. But because you don’t say anything about your views on anything, when they ask you well, they’ll try to figure out what your views on the Second Amendment are likely to be and they’ll say, ‘Well, have you ever held a gun? Have you ever gone hunting? Do you know anybody who’s gone hunting?’ And you know me, Jeff, I grew up on the Upper West Side of Manhattan and this was not something we really did, you know.
Kagan ended up telling senators that if confirmed, she would ask Scalia to take her hunting, and she followed through (much to Scalia’s amusement in her telling of the story). I can’t help but think that the late justice and author of the majority opinion in Heller was on Kagan’s mind during Wednesday’s oral arguments, especially after seeing this comment.
“It seems completely intuitive there should be different gun regimes in New York than in Wyoming … but it’s a hard thing to match with our notion of constitutional rights generally,” Kagan said. “We would never really dream of doing that for the First Amendment.”
No, we wouldn’t. Kagan’s comment gets to the crux of the matter here. Regardless of what you think about guns or gun owners, the fact of the matter is that the Constitution clearly protects the right to both keep them and bear them for self-defense. The gun control lobby can pretend otherwise all it wants, but it would be a dangerous thing for the Court to do the same.
The exercise of our constitutional rights aren’t based on population density or the government’s determination that we have demonstrated a “need” to its satisfaction. I think Kagan actually does get that, even if her heart is with New York’s desire to limit the carrying of firearms to only a chosen few.
That doesn’t mean that her head will win out over her heart when it comes to an actual vote on the merits of this case, but her comments yesterday were intriguing. I could see a scenario where Kagan (and perhaps even Sotomayor) concur that the right to bear arms outside the home in self-defense is protected by the Constitution, while dissenting in part from some of the specific remedies offered by the conservative wing. I still have a hard time imagining Kagan fully channeling her late friend’s views of the Second Amendment in this case, but I’m cautiously optimistic that her experience hunting with Antonin Scalia did end up having a positive impact on her outlook on the right to bear arms.