As Elena Kagan’s confirmation hearings begin in the Senate, Republican lawmakers–and even conservative interest groups–are under a lot of pressure to make this relatively non-controversial appointment a right-wing jihad.
The hook, ironically, has been a ruling by the existing Court striking down Chicago’s handgun restriction ordinances on grounds that they violate the Second Amendment.
Here is Lyle Denniston’s bottom-line analysis of the significance of this decision:
Justice Samuel A. Alito, Jr., in the Court’s main opinion, did make one thing unmistakably clear to lower court judges: the right to have a gun for self-defense in the home is a “fundamental” constitutional right. That one-word label carries enormous import. Ordinarily, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy “strict scrutiny,” meaning that it will be struck down if the government’s need for it is not “compelling” and if the approach it takes is not the narrowest possible way to get at the problem. Some laws can survive “strict scrutiny,” but not a great many do.
Because the decision makes gun regulation essentially a matter of judicial fiat rather than legislative or executive policy, it has ratcheted up ideological demands that conservatives, and most especially the gun lobby, make judicial appointments, including the Kagan nomination, a litmus test issue. And believe it or not, the NRA is being attacked from the Right for failing to unleash its hounds on Kagan, and earlier, on Sonia Sotomayor. The claim is that the NRA agreed to tame its activists in exchange for an exemption of the organization from the requirements of the proposed “DISCLOSE Act” requiring public information on on campaign finance activities, which conservative firebreathers violently oppose.
What the NRA has to do to rebuild trust with the Right, we are told, is to go medieval on Kagan.
Don’t be surprised if that’s exactly what happens.