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U.S. Supreme Court Confirmation Hearings Regarding the Second Amendment — Elena Kagan and Sonia Sotomayor Shenanigans!

Nominated by President Barack Obama (after Justice John Paul Stevens retired in April 2010), Elena Kagan has been the first U.S. Supreme Court Justice appointed without prior experience as a judge since the appointment of William Rehnquist in 1972. It now seems to me that her nomination by President Obama was payback for the fact that Kagan had legally represented him in stalling all court challenges attempting to ascertain Obama’s citizenship.(1)  But what about her standing on the Second Amendment?

Elena Kagan to Senator Charles Grassley (R-IA) in confirmation testimony, June 2010:

“It has long been thought, starting from the ‘Miller’ case, that the Second Amendment did not protect such a right. . . .Now the Heller decision has marked a very fundamental moment in the court’s jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein there is no question going forward that ‘Heller’ is the law, that it is entitled to all the precedent that any decision is entitled to and that is true to the ‘McDonald’ case as well…”(2)

So Kagan’s testimony affirmed that gun rights are a matter of “settled law.” In other words, Kagan agreed that the Second Amendment is “settled” as an individual right to keep and bear arms for law-abiding citizens. The intimation is that she would not oppose this settled question.

Mendacity: In July that same year, as a recently confirmed Supreme Court Justice, Elena Kagan voted with the minority against striking down the Chicago gun ban in the McDonald v. Chicago decision. Translation: the Second Amendment is not an individual right of citizens, so it is an “unsettled” law!

Now, let’s go back to Sonia Sotomayor’s confirmation testimony just a couple of years previously. As Obama’s first Supreme Court nominee, Sotomayor promises to be no better Justice than Kagan, certainly no legal eagle. Rather, they seem to be birds of a different feather that flock together. Despite her past decisions contravening the Second Amendment, Sotomayor also promised the Senate Judiciary Committee in 2009 that she would support District of Columbia v. Heller, “follow and accept it,” guaranteeing an individual right to self-defense.(3)

Senator Patrick Leahy: “. . . you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?”

Sotomayor: “It is.”

And yet, in McDonald v. Chicago, like Kagan, Sotomayor reneged on her promise and voted with the liberal justices, Breyer and company, in another sharp 5 to 4 decision.

We still have a perilous situation, the Supreme Court has been very narrowly supportive of an individual’s right to keep and bear arms. Remember the decision was 5-4 in District of Columbia v. Heller when the U.S. Supreme Court struck down Washington, D.C.’s handgun ban in 2008, and a similar 5-4 decision to strike down Chicago’s handgun ban in McDonald v. Chicago in 2010.

These 5 to 4 decisions hang by a thread. The liberal justices’ dissent provide a clear warning: “The Supreme Court is just one vote away from totally reversing District of Columbia v. Heller (federal ban) and McDonald v. Chicago (state ban), and asserting the government can completely ban private gun ownership as it had done in Chicago, New York, San Francisco, and Washington, D.C.


1. Supreme Court of the United States, No. 09-8857, Jerome Julius Brown, Sr., Petitioner v. Barack H. Obama, President of the United States, et al. Docketed: January 29, 2010.

2. Lott, John. A vote for Kagan is a vote to take away your guns., June 30, 2010.

3. Amicus Brief No. 07-290 IN THE Supreme Court of the United States DISTRICT OF COLUMBIA, ET AL., Petitioners, v. DICK ANTHONY HELLER, Respondent. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit. , February 7, 2008. 

Written by Dr. Miguel Faria

This article was published exclusively for on November 28, 2011. The article can be cited as: Faria MA. U.S. Supreme Court confirmation hearings regarding the second amendment — Elena Kagan and Sonia Sotomayor shenanigans!, November 28, 2011. Available from:

Copyright ©2011 Miguel A. Faria, Jr., M.D.

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2 thoughts on “U.S. Supreme Court Confirmation Hearings Regarding the Second Amendment — Elena Kagan and Sonia Sotomayor Shenanigans!”

  1. Amicus Brief No. 07-290 IN THE Supreme Court of the United States DISTRICT OF COLUMBIA, ET AL., Petitioners, v. DICK ANTHONY HELLER, Respondent. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit. BRIEF FOR AMICUS CURIAE ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC. IN SUPPORT OF RESPONDENT. ANDREW L. SCHLAFLY Counsel for Amicus, February 7, 2008.

  2. William Heino Sr.

    In light of the recent ruling (6/3/21 ) by Federal judge Roger Benitez overturning a California firearms ban on assault weapons where he ruled it violates the Constitutional right to bear arms, his words, referring to the Second Amendment, I have a suggestion. In my thesis regarding the Second Amendment I think it will prove his ruling right to bear arms” has everything to do with a “militia” and nothing to do with a “person” or individual, which the following will suggest..

    Justice Amy Coney Barrett Second Amendment dilemma

    In some 225 years neither law professors, academic scholars, teachers, students, lawyers or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing  Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.

    I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    Militia, a body of citizens organized for military service.

    If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)

    The 4th Amendment reminds us, “The right of the people to be secure in their persons….”

    The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.

    It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”

    Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?

    Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s  view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
    Leaving Supreme Court Justice Barrett’s judgment in question.

    In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.

    Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..

    And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”

    “[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;

    The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall  not infringe or encroach  on beliefs other to what is evident as to the subject “Militia.”

    Clarifying “..the right of the people to keep and bear arms…
    People. Human beings making up a group or assembly or linked by a common interest.

    I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.

    William Heino Sr

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