Executive Session

Floor Speech

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Mr. THUNE. They have. I simply say to my colleague from Alabama, in his remarks he noted the pattern we are starting to see that exists with regard to--the Senator from Alabama mentioned the Attorney General of this administration and their nominees to the Supreme Court. What that has done is galvanized those at the grassroots level who are very concerned about what they see happening and how it might threaten and put in danger the second amendment right that many of them have enjoyed and believe is something that ought to be protected in the future--it ought to be protected by the Supreme Court, it ought to be protected by the Congress, it ought to be protected by the President of the United States.

We see some of these grassroots people who are concerned about this issue give voice to their concerns through organizations such as the NRA, for example, and Gun Owners of America. I wish to point out, if I may, that both of these organizations have written letters in opposition to Ms. Kagan's nomination.

I ask unanimous consent to have printed in the Record these letters.

There being no objection, the material was ordered to be printed in the Record,

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Mr. THUNE. Mr. President, I continue by saying that after reviewing Ms. Kagan's record of testimony at the confirmation hearing, Gun Owners of America concluded:

..... the available evidence portrays her as a forceful advocate of restrictive gun laws and as a person driven by political considerations rather than the rule of law.

The NRA went on to write:

..... Ms. Kagan's record on the Second Amendment gives us no confidence that if confirmed to the Court, she will faithfully defend the fundamental, individual right to keep and bear arms of law-abiding Americans.

For these reasons, the National Rifle Association has no choice but to oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court. Given the importance of this issue, this vote will be considered in the NRA's future candidate evaluations.

Yes, the answer to the question of the Senator from Alabama is both the NRA and Gun Owners of America have opposed not only this nomination but also Justice Sotomayor's nomination.

Mr. President, I ask unanimous consent to have printed in the Record the NRA's letter in opposition to the Sotomayor nomination.

There being no objection, the material was ordered to be printed in the RECORD,

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Mr. THUNE. I say to my colleague from Nevada, it comes down to their horrible record on gun rights. It made it impossible for these two organizations to conclude that they would be impartial constitutional judges on this issue even though they tried to convince Senators otherwise during their confirmation hearings.

These groups had their concerns about Justice Sotomayor validated on June 30, 2010, when she ruled again that the second amendment is not a fundamental right. Justice Sotomayor assured Senators during her hearing that she believed the second amendment guaranteed an individual right to keep and bear arms. But then in her first ruling on the second amendment as a Supreme Court Justice, she joined the minority opinion in McDonald v. Chicago and failed to protect this individual right, as confirmed by the majority of the Court, for citizens living in the 50 States.

Specifically, at Justice Sotomayor's hearing, she said that she ``understood the individual right fully that the Supreme Court recognized in Heller'' and ``knew how important the right to bear arms is to many Americans,'' and that she did not consider the right ``unfundamental.''

This is in stark contrast to the opinion she signed onto in McDonald that I said--this is a quote from the McDonald opinion:

I can find nothing in the Second Amendment's text, history, or underlying rationale that could warrant characterizing it as fundamental, insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.

I know that many in this body, especially those who supported her confirmation, were surprised by what is seemingly a 180-degree turn.

While I had hoped we could trust her word, I was concerned that her record did not fit her statements at the hearing. I had concerns that her true feelings were much more hostile toward the second amendment right than what she was letting on.

Specifically, I had concerns with two different cases she decided as a circuit court judge, including one after the Supreme Court already recognized the second amendment was an individual right, where she held in that case that the second amendment was ``clearly not a fundamental right'' and did not apply to the States.

There were some Senators at the time who were not as concerned by this record as I was and some of the others of us in the Chamber were and went so far as to say--this is a quote from one of our colleagues:

I do not see how any fair observer could regard her testimony as hostile to the second amendment personal right to bear arms, a right she has embraced and recognized.

That is something said by one of our colleagues in the Senate during the Sotomayor confirmation.

While what Justice Sotomayor said during the hearing certainly gave the impression that she believed in the individual right to keep and bear arms, her prehearing record demonstrated her true beliefs.

I am here today to urge those Members who proclaim to strongly support the second amendment not to be fooled a second time. Ms. Kagan was asked about the second amendment on a number of occasions at her hearing, and each time her response was merely a mimic of Justice Sotomayor's statements on the second amendment at her hearing.

Ms. Kagan would go no further than to acknowledge that the important Supreme Court decisions in Heller and McDonald are ``precedent'' and ``settled law entitled to all the weight the precedent usually gets.''

I believe there is no question that Ms. Kagan will follow in the footsteps of Justice Sotomayor and revert to the beliefs demonstrated by her anti-second amendment record rather than her posturing during her confirmation hearing.

That is the reason the NRA and other groups that treasure the fundamental right to keep and bear arms, such as Gun Owners of America, oppose her nomination, just as they did Justice Sotomayor's.

The only question that remains for us in the Senate is whether pro-second amendment Senators who voted for Justice Sotomayor have learned their lesson and will vote against the Kagan nomination.

I say to my colleagues from Nevada and Alabama, as the old saying goes: Fool me once, shame on you; fool me twice, shame on me. For the sake of gun owners across the country, I hope they will not be fooled again.

I say to my colleagues from Nevada and Alabama, with all the unanswered questions that remain after the Heller and

McDonald cases, are there not lots of reasons why those grassroots people across this country--those gun owners, those people who care profoundly about the right to keep and bear arms--ought to be concerned? For example, what is a sensitive place? Who needs to register? There are going to be registration laws that are put in place. How is the issue of microstamping and the mandates and requirements that might be associated with that going to impact this fundamental second amendment right?

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Mr. THUNE. Mr. President, I close by saying as well, I think in all cases, you have to judge people not by what they say but by what they do. Clearly, the record would suggest, as it did with Justice Sotomayor, a certain hostility toward the second amendment right. Obviously, statements at the Judiciary Committee hearings suggesting an openness to this or acknowledging settled law or precedents or all those sorts of things were meaningless in regard to the Chicago case with regard to Justice Sotomayor.

If we look at the long history of Ms. Kagan with regard to this issue, I think we can conclude where she is going to end up.

It is a critical issue because these are 5-to-4 decisions. These are very narrow decisions that strike at the very heart of a fundamental constitutional right that people in this country deserve to have their leaders, both elected leaders and people on the Court, protect. I am very concerned about where that is headed with this nominee.

I yield to the Senator from Alabama.

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