[Guest post by DRJ]
CBS News reports on Day 2 of the Elena Kagan hearings regarding Senator Grassley’s questions about the Second Amendment. Kagan pointed out the McDonald decision was “based so much on history” and stated the Court has decided gun ownership is a fundamental right that is “good precedent going forward.”
All case law is precedent but that won’t stop the Court from changing it if the Justices think it’s wrong. That’s especially true here, where Kagan characterizes the decision as “based so much on history” — presumably as opposed to the law. Kagan reinforces the idea that the decision isn’t based on law when she adds the italicized qualifier: “The [McDonald] case is based so much on history, which I’ve never had the occasion to look at.”
Kagan is a lawyer, a law professor and a former Law School Dean. If she’s never looked at the history of gun rights and the Second Amendment, it’s either because she has no interest in the subject or it’s because she thinks history is not required to decide a Second Amendment legal question. I think the latter is more likely.
Thus, this may be what Kagan is really saying: A judge is not required to know about history to decide a legal question, and a legal decision based on history instead of law can be wrong.