Litigation

Kagan and "settled law"

By Ted Frank

Kagan deflected questions about her opinion on the Second Amendment by phrasing the issue as "settled law." Of course, Sotomayor did the same thing a year ago, and she was one of the four justices in the fervent dissent in McDonald v. City of Chicago—a dissent that made it quite clear that those justices would have overturned the Heller decision. Little surprise that the NRA has finally come out against the Kagan nomination. Note the similar, but substantially more dishonest, equivocation of the White House and Senator Schumer to Politico—Kagan never lied and said that Second Amendment supporters had nothing to fear.

Of course, I don't think justices have to give up the ghost after a 5-4 decision that they think is wrongly decided. But the Judiciary Committee should have done more to challenge what it means to a potential justice for something to be "settled law."

Full post as published by Point of Law on July 02, 2010 (boomark / email).