Whitley County Patriots

From Power Line:

The Senate has confirmed Elena Kagan. The vote was 63-37. Five Republicans joined every Democrat except Ben Nelson to vote “yes.” The five Republicans were, as expected, Senators Snowe, Collins, Graham, Gregg, and Lugar.

The “no” vote tally was pretty high — up from 31 in Sotomayor’s case — but there’s really no way for conservatives to put a positive spin on Kagan’s confirmation.

To get a sense of what it means, think of the three big constitutional decisions rendered by district courts in the past week or two. They are: (1) Judge Bolton’s grant of a preliminary injunction blocking key portions of Arizona’s immigration enforcement law, (2) Judge Hudson’s ruling permitting the Commonwealth of Virginia to proceed with its lawsuit challenging the portion of Obamacare that requires individuals to purchase insurance, and (3) Judge Walker’s outrageous ruling that California’s Proposition 8, which bans gay marriage, is unconstitutional.

If these matters reach the Supreme Court, as seems likely, I have no doubt that Kagan will side with those who challenge the Arizona immigration law and Proposition 8, and with the government in the case of Virginia’s challenge to Obama care. But that’s just the tip of the iceberg — probably less than one year’s worth of bad jurisprudence. Kagan is only 50 years old, so we can expect at least 25 years of the same sort of leftist assault on our traditional freedoms and the rights of our states.

The only way Kagan’s confirmation doesn’t become a disaster is if we are able to elect Republicans presidents pretty consistently during the next 22 years or so, starting in 2012, and thus can keep Kagan busy writing dissents.

From Big Government:

Despite Elena Kagan’s impressive “evasiveness,” observers have noted a loose and shifting commitment to the principle of free speech. But her position, and that of liberal legal academics, is really quite simple: She favors free speech for the right people but not for the wrong people, for the right interests but not for the wrong interests.

The whole project of modern liberalism has been to distribute “rights” in ways that liberals deem socially valuable. This rejects the founders’ view that God and/or Nature endowed individuals with rights, which governments are instituted to protect. Twentieth century progressives and liberals believed instead the governments distribute rights according to elites’ sense of social good.

The founders had a holistic, “seamless garment” view of rights. The made no distinction between property rights and free speech rights. Rather, land, capital, money or other tangible economic rights were simply one facet of “property,” which included anything, tangible or intangible, to which one could claim ownership. This is the meaning of the Latin root of the word, proprius, a possessive pronoun meaning “mine.” When John Locke used the term “property,” he meant this—everything to which one had a right. When he spoke of land, capital, chattels, or money, he used the term “estates.”

James Madison echoed this in a 1792 essay. “It embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…. A man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”

 The progressives developed a double-standard of rights, one in which “property” rights are separated from and subordinated to “non-property” rights, often referred to as “personal” rights or “human” rights. The progressives were able to get the Supreme Court to abandon the protection of economic rights, while preserving judicial review for non-economic rights. It did so in a very famous footnote to a decision in which it upheld a congressional act prohibiting the interstate shipment of “filled milk” (an interesting story in itself—another place where the dairy lobby has left its mark on constitutional law).

Read the rest at Big Government.

From RedState:

President Obama’s nominee to the U.S. Supreme Court is hostile to the 2nd Amendment.  That is a fact.  Clear and convincing evidence in the public domain proves that fact.  If you hear the left argue that Elena Kagan is not hostile to the 2nd Amendment, know that those claims are proven incorrect by Kagan’s testimony before the Senate Judiciary Committee and her lifetime of anti-gun activism.

Media Matters for America has put out a propaganda sheet claiming that it is a myth that President Obama’s nominee to the Supreme Court, Elena Kagan, is anti-Second Amendment.  Kagan has spent her professional career implementing anti-gun initiatives as a clerk to Justice Thurgood Marshall, as counsel for the Clinton Administration and as President Obama’s Solicitor General.  Furthermore, Kagan’s testimony before the Senate Judiciary Committee confirms a hostility to the idea that the 2nd Amendment is an individual right of all Americans incorporated against state action restricting that right.  The fact of the matter is that Elena Kagan will vote to uphold every local, state and federal restriction of the right of Americans to “keep and bear Arms.”

Kagan wrote the following in a memorandum dated August 27, 1987 from her to Justice Thurgood Marshall in the Sandidge v. U.S. case.

A jury convicted petr of carrying a pistol without a license possession of an unregistered firearm, and unlawful possession of ammunition The CA affirmed. Petr’s sole contention is that the District of Columbia’s firearm statutes violate his constitutional right to ‘keep and bear Arms.’ I’m not sympathetic.

Media Matters claimed out with the claimed that the Drudge Report highlighted Kagan’s quote “I’m not sympathetic” out of context.  MM claims ”the Drudge Report highlighted the following out-of-context Kagan quotes to falsely suggest that Kagan’s statements indicate her views on gun rights are outside the mainstream – ‘I’m not sympathetic’ to the claim of a defendant who argued that his Constitutional rights were violated in a case.”  The full Kagan memo is devoid of any legal analysis nor any case citations for the assertion that she is not “sympathetic” to the petitioner’s Second Amendment claim.  Kagan expressed her personal view that she is not “sympathetic.”  Kagan did not write that the law was not sympathetic to the petitioner’s claim.  She did not write that she was not sympathetic because of Supreme Court precedent.  Kagan expressed a personal hostility to the Constitutional claim without a written legal basis for the claim.  This is merely one piece of evidence that Kagan is hostile to the 2nd Amendment – there is more.

Read the rest at RedState.

From Big Government:

This week’s historic Supreme Court case on gun rights has pivotal implications for Elena Kagan’s Supreme Court confirmation hearings. From now on, the biggest battles over the Second Amendment will be won or lost in the Supreme Court.

In the 2008 case D.C. v. Heller, the Supreme Court held 5−4 that the Second Amendment secures an individual right to own a gun. But because the Bill of Rights only applies directly to federal laws (such as those in D.C.), Heller only made the Second Amendment a right against the federal government.

On June 28 of this year in McDonald v. Chicago, a new 5−4 Supreme Court decision held that the individual right to own a gun from Heller is a fundamental right, and as such extends through the Fourteenth Amendment as a right against state and local governments as well.

Justice Stephen Breyer wrote a dissent that Justices Ruth Bader Ginsburg and Sonia Sotomayor joined in full. (Justice John Paul Stevens wrote a separate dissent.) That dissent contains a telling revelation about Barack Obama’s Supreme Court.

When Sotomayor was nominated for the High Court last year, she was asked by Judiciary Committee Chairman Pat Leahy (D−VT) whether after Heller it is now a matter of settled law that the Second Amendment secures an individual right to own a gun. Her answer was clear and direct: “Yes, sir.”

Read the rest at Big Government.

From The Heritage Foundation:

The Senate hearing for Supreme Court nominee Elena Kagan starts on Monday, June 28.  Senator Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee, has refused Republican requests to delay the hearing.  The Republicans have a very good and justified reason for that request – the huge number of documents that they have just been inundated with, a volume of material so large that it will be virtually impossible for the Senators and their staff to give them any meaningful review prior to the hearing.  But then, that may be the very reason that Senator Leahy has refused to reschedule Kagan’s hearing.

Read the rest at The Heritage Foundation.

From Power Line:

Byron York reports on an obscure but potentially embarrassing controversy involving Elena Kagan’s days in the Clinton administration:

In 1995 and 1996, future Supreme Court nominee Elena Kagan was involved in a bizarre controversy in which the Clinton White House was accused of siding with an eco-terrorist group locked in a standoff with federal agents deep in the woods of Oregon. The incident led to an investigation by House Republicans, who concluded that a staffer on the White House Council on Environmental Quality (CEQ) tipped off the environmental radicals to impending action by U.S. Forest Service law enforcement agents — a leak that Forest Service officials believed endangered the lives of their agents on the ground.

Read the rest at Power Line.