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Firing Blanks

By Beacon Staff

I like the Bill of Rights. Not just the First, the Second, or the Fourteenth, but the whole darn American civil-liberties arsenal. Unlike many of my media colleagues, the Second is my fave over the First. After all, bad people with guns can shut up good people with keyboards pretty darn quick.

So, I’ve been watching the gun-rights cases in the Supreme Court pretty closely, along with both of our Montana U.S. senators, Jon Tester and Max Baucus.

Back in March, after attending oral arguments in the McDonald v. Chicago case, Baucus pumped out a press release stating his “bottom line” was the right to bear arms which is “spelled out right in the Constitution, and we’ve got to protect it. You can bet I’ll be keeping a close eye on this case as it moves forward.”

Tester joined outgoing senator Kay Bailey Hutchison (R-Texas) in leading the preparation and filing of a pro-gun Congressional brief for McDonald. The brief was signed by 309 senators and congresscritters, including Baucus and Denny Rehberg. In June, Tester called the McDonald decision “a major victory for America’s gun owners and I’ll keep fighting hard to protect our gun rights.”

But that “major victory” came on a wispy-thin 5-4 vote, and McDonald’s several opinions, concurrences and dissents are some of the most divergent and vitriolic I’ve ever read.

Therefore, as Baucus put it, the confirmation processes for President Obama’s Supreme Court picks, Sonia Sotomayor and Elena Kagan, warrant a close eye, too.

I wasn’t real impressed when Sotomayor asserted her vast firearms knowledge by telling senators “one of my godchildren is a member of the NRA” and she had “friends who hunt.” She further declared that she “completely” understood the individual right recognized in the Heller case. How so?

While on the Second Circuit Court in January 2009 (significantly after the Heller decision), Sotomayor concurred in a ruling that “it is settled law that the Second Amendment applies only to [federal] limitations,” not states, a “longstanding principle.”

That case, Maloney v. Cuomo, came before Sotomayor from a federal judge who had in turn ruled that nunchuck possession could be banned by New York state law “because the Second Amendment does not apply to the States.”

Rings a bell, doesn’t it? Yep, the states’ rights bell, the same shameless “longstanding principle” from the dirty days of the civil rights era. The argument was, while the federal government couldn’t trash the fundamental civil liberties of American citizens, states could. That was wrong then, it’s wrong today, and wrong forever.

Finally, a year after her confirmation kabuki dance, everyone understands what Sotomayor understood: She was one of the four justices who found “nothing” in history about the Second “characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”

Now, every single Democratic senator, including Baucus and Tester, voted to confirm Sonia Sotomayor. Party loyalty, of course.

With Elena Kagan up for confirmation, they’ll get to vote again.

It’s safe to say that Kagan’s understanding of the Second Amendment is well-developed. She co-signed a May 1999 memo to President Clinton referring to “an aggressive strategy” to “press for quick passage of our gun control proposals,” happily passing on the good news about a front-page New York Times article “perfectly conveying our intended message.” In other words, Kagan understands the politics of crisis and how to take advantage of press fellow travelers – a top-drawer political operative. Before the Senate, she was the picture of moderation as she declared that the freshly-minted McDonald ruling was “binding precedent” and “settled law, entitled to all the weight precedent usually gets.”

Care to guess what Kagan meant by “usually?”

Whether we find out is partially up to both Baucus and/or Tester. They may yet vote for Kagan, which is their right. I, and most Montanans, can live with that, at least until the next election. But if they do vote for Kagan, I would ask them to please shut up about “fighting hard to protect our gun rights.” Even the First Amendment has limits.

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