Gun rights concerns mean Kagan's nomination may be scored as a 'key vote'

Republican gun rights supporters repeatedly pressed Supreme Court nominee Elena Kagan on whether she believes the Second Amendment is a fundamental right.

The National Rifle Association scored the Senate's confirmation of Justice Sonia Sotomayor as a "key vote" after her hearings last summer, and people are anticipating whether the group will do it again with Kagan.

Kagan’s description of Second Amendment cases, including Monday’s high court ruling limiting the right of state and local governments to regulate gun ownership, as “settled law” has done nothing to allay the gun rights group’s worries about her, according to an NRA official.

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“What we have heard so far causes us very grave concern,” the official said.

The NRA released a statement Monday arguing that Kagan has shown a “hostility” towards the right to bear arms. The release cites her role in developing the Clinton administration's 1998 ban on the importation of certain models of semi-automatic rifles; notes during her time at the Clinton White House mentioning the NRA and Ku Klux Klan as “bad-guy” organizations; and her comment to Justice Thurgood Marshall that she was “not sympathetic” to a challenge to the District of Columbia’s handgun ban.

Senators from key states where gun rights are valued often tout their 100 percent NRA rating and may not want to risk that on a vote to support Kagan, though the decision to key-vote Sotomayor’s confirmation appeared to have little impact on a dozen Republicans and Democrats who previously had high NRA ratings.

Nine Republicans voted for Sotomayor, including Sens. Lamar Alexander (Tenn.), Kit Bond (Mo.), Susan Collins (Maine), Lindsey Graham (S.C.), Judd Gregg (N.H.), Mel Martinez (Fla.), Olympia Snowe (Maine) and George Voinovich (Ohio).

Just seven voted for Kagan last year when she was nominated for solicitor general, including Collins, Snowe and Gregg, as well as Sens. Tom Coburn (Okla.), Orrin Hatch (Utah), Jon Kyl (Ariz.) and then-Republican Sen. Arlen Specter (Pa.).

If the NRA key-votes Kagan, Hatch said it would definitely cost her GOP votes, although Hatch said it would not influence him. Hatch, who usually votes for Democratic Supreme Court nominees but is facing a potentially tough primary challenge by Rep. Jason Chaffetz (R-Utah) in 2012, said he has yet to decide how he will vote on Kagan.

“I’m still listening,” Hatch said.

Kagan is highly intelligent and will no doubt be confirmed by the full Senate, Hatch said, but he still had some concerns — mainly related to her decision to limit military recruiters access to Harvard law school students during her time as dean.

Coburn, Sen. John Cornyn (R-Texas) and others have repeatedly asked Kagan about whether she believes that the right to bear arms is a fundamental right.

Kagan referred to the 2008 landmark case in which the Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm for private use in federal “enclaves,” such as Washington and military bases.

“I think that Heller is settled law and Heller has decided that the Second Amendment confers such an individual right to keep and bear arms,” she said.

Kagan’s stated support to abide by Heller is doing little to tamp down GOP concerns.

Graham said he has no doubt that Kagan is going to side with “liberal side of the court” on most issues — including guns.

“I wouldn’t expect President Obama to nominate someone who would be good on gun rights issues,” Graham remarked.

Graham wouldn’t say whether he would vote for Kagan’s confirmation, although he repeated his stated belief that “elections matter,” a reference for his tendency to respect an elected president’s choices on nominations. When Kagan was up for solicitor general, Graham didn’t vote because he was in South Carolina for a meeting.

During the Kagan hearing, several Republican senators expressed frustration over Sotomayor’s confirmation testimony on guns and her record thus far on the bench.

Cornyn has called Sotomayor’s testimony to the Senate Judiciary Committee last summer a “confirmation conversion.”

On Tuesday he referred to Sotomayor’s recent dissent to Monday’s Supreme Court decision on guns in which she wrote that the “framers did not write the 2nd Amendment in order to protect a private right of armed self defense.”

“Now it is disconcerting to say the least,” Cornyn said. “It appears to be a direct contradiction to what Sotomayor said in her hearings.”

Kagan explained during Tuesday testimony before the Judiciary panel that her notes lumping the NRA and KKK together and calling them “bad-guy” organizations were from a phone conversation in which she was taking notes on another’s comments.

“I was quoting somebody else,” she said. “The way I write telephone notes is to write down what others are saying.”

When Kyl asked whether she would compare the NRA to the KKK, Kagan said she would not.

“It would be a ludicrous comparison,” she said.

The NRA’s key-vote on Sotomayor appeared to have little effect. Among the yes votes for her confirmation from either NRA-endorsed candidates or “A”-rated senators: Democrats Mark Begich (Alaska), Max Baucus (Mont.), Bob Casey Jr. (Pa.), Tim Johnson (S.D.), Ben Nelson (Neb.), Specter, Jon Tester (Mont.) and Mark Warner (Va.), as well as Republicans Alexander, Bond , Graham and Martinez.

Appearing Wednesday before the Senate Judiciary Committee for the third day, Republicans again hit Kagan on her record on military recruiting as dean of Harvard law school and whether she supports the Second Amendment. In a rare moment of drama, Kagan was forced to defend her revision of an obstetrician group’s policy statement on partial-birth abortion while she was adviser in the Clinton White House.

Kagan continued to play it cautiously and refused to take open positions on various controversial issue, including gay marriage, saying only that she would divorce her politics from her deliberations on cases and respect precedent.

Her confirmation is on track, and seems all but assured.