High Court's Ruling on Second Amendment; Confirmation Hearing of Elena Kagan


WAYNE LAPIERRE, NATIONAL RIFLE ASSOCIATION: It's a landmark decision. The Second Amendment as an individual right is now a real part of American constitutional law. And that is a vindication for the majority of Americans that have known this was their individual right and worth defending.

PAUL HELMKE, BRADY CAMPAIGN: I look at this as a narrow, limited defeat. They define the Second Amendment as dealing with the right to have a gun in the home for self defense.


BRET BAIER, "SPECIAL REPORT" HOST: The five-four decision at the Supreme Court today, the case, the Supreme Court held the Second Amendment right to bear arms applies to the 14th Amendment, the due process clause, to all 50 states. Gun ownership advocates have this as a monumental victory.

This comes, of course, on the day when Elena Kagan started her confirmation process with the first day of hearings. Let's bring in our panel, Fred Barnes, Executive Editor of The Weekly Standard, Erin Billings, deputy editor of Roll Call, and Tucker Carlson, editor of thedailycaller.com

Fred, how big a decision is this? Put it in context.

FRED BARNES, EXECUTIVE EDITOR, THE WEEKLY STANDARD: It was big but obvious and logical after the decision two years ago in the D.C. gun case, where the court said the right to bear arms under the Second Amendment is an individual right.

This has been debated for decades about whether the Constitution meant that or not and the court ruled and there was consensus of experts it is an individual right like the right of free speech or the guarantee in the Fourth Amendment against unreasonable searches and seizures and so on. It's an individual right.

And what this means is that practically all these gun control laws which are piled up in cities like Chicago, who was a defendant in the case, that in effect banned the private ownership of guns and whether you have them in your home or carry them, in many states, those laws are unconstitutional. They can't do that.

And the second part of this is, this ruling and the one two years ago puts the whole gun situation in some sort of, in the neighborhood of reality. Because the reality is, gun control doesn't work. It never has worked. It will never work. In Chicago even officials say their ban has not worked and violence goes on and on.

And the reality now what they need to do is if the court -- and the court will rule on more gun cases -- what they need to look for is rules that will allow people to have a gun and use it for self defense. What are the rules that apply to that rather than keeping people from getting guns? That is over. That is why the decision is big.

BAIER: Erin?

ERIN BILLINGS, DEPUTY EDITOR, ROLL CALL: What I thought was interesting was the timing. This happened as Elena Kagan kicked off her confirmation hearing.

And very quickly we saw that this ruling translated into that hearing room. We had Democrats, some Democrats like Dianne Feinstein condemning it.

And we had Republicans quickly pouncing on this and saying, look, this is another reason why we need to question how trustworthy the Supreme Court nominees are because they go back to the Sotomayor hearings where she said that gun ownership, the Second Amendment, is a fundamental right yet she was on the dissenting end of this decision.

BAIER: Tucker?

TUCKER CARLSON, EDITOR, THEDAILYCALLER.COM: It is a hugely significant decision theoretically. The question is, will it be implemented? How will the states implement it? There are a lot of ways that municipalities can thwart the will of the Supreme Court, as we know of the Constitution.

In the District, it came down two years ago, try to buy a gun in Washington D.C., there are no gun dealers. And today Mayor Daly of Chicago said this is now the law. We will make it so difficult to own a firearm you will not be able to. The city of Chicago will require fingerprinting, safety courses, a requirement you buy liability insurance.

So at that point you ask, what is the difference between banning guns and making it so difficult to obtain a gun you cannot have one? I think what you are going to see and should see are legislative efforts from Washington, as you saw 40 years ago in protection of other rights, that force states to acknowledge the truth, which is the Second Amendment protecting an individual right to own a firearm, and Congress has to do that.

BARNES: I think you will have to wait for the Supreme Court to do it and rule in cases like Chicago again, and Washington, D.C.

BAIER: We heard for the first time in this process from the nominee to the Supreme Court, Elena Kagan. Take a look.


ELENA KAGAN, SUPREME COURT NOMINEE: I will listen hard to every party before the court and to each of my colleagues. I will work hard. I will do my best to consider every case impartially, modestly, with commitment to principle and in accordance with law.


BAIER: And deliberately, as well. Fred, it sounded like Justice Roberts at times in the opening statement. What about the process and the questioning that's to come tomorrow?

BARNES: Here we go again. I think Elena Kagan, all the evidence is, she is a liberal activist would likes that judge and her favorite judge is an Israeli judge who thinks the judges should rule not on the law but on whatever is their concept of justice. That is her view.

But we will not hear that view. You heard her say she will rule modestly and use restraint. And she talked about the limits on what the Supreme Court can do and so on. This is another Sonia Sotomayor, who pretends to be one thing and gets on the court and is liberal activist.

What I would like to see for once is, and I think if Elena Kagan did this she would still probably be confirmed, and that is say, look, I'm an activist, liberal judge, and I am going to defend that as the proper judicial philosophy.


BAIER: She once wrote that the hearings are "vapid" and "hollow," and she wanted nominees to say more. Obviously there was not a lot of expectation for the opening statements. Can there be more expectation?

BILLINGS: The impression of Elena Kagan -- the hearings have become that way. We certainly saw it with Sotomayor. They say the right things, they thread that needle so well regardless of what the questions are. It is predictable.

And, frankly it is predictable on both sides. The Democrats say the predictable thing, and the Republicans they say she will be liberal activist -- and I was not motioning toward you. But it is very predictable and pro forma. I don't think we will see a lot of fireworks this week. Republicans will certainly try.

If she makes a misstep it could maybe change the dynamics, but she has practiced a lot for this.

BAIER: It is hers to lose.

CARLSON: Yes, but she said on tape a number of years ago that she counted herself among those who would like to regulate "hate speech," and "pornography." That seems like -- if that is not a controversial statement then it is hard to imagine what is.

A huge portion of the left has to profoundly object to that. They do on principle. Certainly many on the right would object to that. And when the questioning starts we will hear all kinds of interesting threads of debate. I think she will get through, but I think it could be rougher than we expect.

BAIER: Tell us what you think the most important area of questioning for Elena Kagan will be. Vote in online poll.

Up next, financial regulatory legislation, is it on the ropes?



SEN. JAY ROCKEFELLER, D-W.VA.: It was in the halls of the United States Senate where Robert C. Byrd became known as the "Soul of the Senate," a fierce defender of the Constitution, a respected historian, and an absolutely fearless legislator.

SEN. ORRIN HATCH, R-UTAH: This is a great loss to the Senate. The man is without question the all time great senators, and certainly the longest serving of all time.


BAIER: Senator Rockefeller and Senator Hatch from both sides praising the longest serving member of Congress, Robert Byrd, who died at 92 in a Virginia hospital this morning. He was seen as the senator who protected the Senate and the Constitution. He carried one around in his pocket. First, back with the panel about the life and legacy and career of Senator Byrd.

CARLSON: He was an impressive guy. Self-made, truly self-made, but a very complicated person, not that you got a sense of that from the obituaries this morning. The Associated Press said he was 19 when he was involved with the Klan affiliation.

I do think that his enduring legacy apart from the amazing knowledge of Senate procedure are all the monuments to himself that taxpayers paid for, 40 just in the state of West Virginia named after Robert Byrd. It's hard to endorse that. That is a little over the top.

BILLINGS: Certainly it was a sad day for the Senate. This particular senator was, he really did represent the institution. And I think Bob Byrd's death on top of Ted Kennedy's death, we saw these two iconic figures, certainly veteran Democrats, but they really did represent a lot of what people think is great about the Senate, Kennedy being a good legislator, whether you agree with him or not, and Bob Byrd, really, he really did represent what the Senate was supposed to be.

BAIER: A parliamentarian.

BARNES: He represented a lot of what was bad about the Senate. And so did Teddy Kennedy, two guys committed more than anything else, to spending other people's money. And they spent a lot it, and as Tucker suggested, a lot of it went to West Virginia, which got something like $1.75 compared to every $1 in taxes.

And if you add the monuments, the projects, the highways, the facilities and everything that had his wife's Erma's name as well, then there were over 50 of them. And that is a huge part of the legacy. If that is the soul of Senate, and I think it is, spending billions and billions of dollars of federal money and getting it back to your state, and he was very good at that.

BAIER: A lot of comments at the Elena Kagan hearings obviously about the passing of Senator Byrd.

As that happens, obviously there is some head counting going on as far as passing legislation. The financial regulation overhaul after it came out of conference committee is now heading to the Senate, and now we are really seeing who is left voting for it and against it. Democrats against the bill, the first time around Senators Cantwell and Feingold. We know for a fact that Senator Feingold is going to vote against it this time. We don't know about Senator Cantwell. Now, Republicans who voted for the bill last now, Scott Brown we understand is a "no" at this hour, Senator Collins and Snowe are still undecided, and we still haven't heard from Senator Grassley. For Harry Reid, Tucker, this is a time when they're adding numbers and it really is on the ropes.

CARLSON: It really is, and it may come down to Brown. We seem to have gotten confirmation from Brown's office from a spokesman saying that he will not vote for anything that contains a tax increase, and it in fact does.

BAIER: A $19 billion tax against banks.

CARLSON: Right, and I don't think they will get it by July 4. And if you step back, the market melted down was almost two years ago and we have not had comprehensive reform since then and things have been getting better. Do we need it by July 4? Probably not.

BAIER: Erin?

BILLINGS: I don't think it will not happen before July 4, because I think the governor of West Virginia is not going to appointment Byrd's successor until after July 3 and so thereby giving the Democrats one more vote. But, yes, this is dicey. There is a lot of pressure on Scott Brown in particular from both sides and K Street as well.

BARNES: The Democrats couldn't help but overreach on this bill. Neither the Senate nor the House in their version had the $19 billion tax on banks, and, yet, the conference of Democrats decided it should be in the bill. And that is how they lost Scott Brown, and that is how they may lose the Maine senators, both Republicans, and that is how they may lose Grassley. They will need at least three of them, anyway. And, look, this is easy to fix. Get rid of the tax and the bill will pass.

BAIER: Down the road, yes-or-no, pass or no pass.

BARNES: Pass without the tax.

BILLINGS: I think it will pass, and the question is much, how many members will vote for cloture even if they don't want to stomach the final product.

CARLSON: It will not pass before the 4th of July.

BAIER: Well, with that caveat.

BARNES: You specialize in caveats.