From The Law, by Frederic Bastiat:

What, then, is law? It is the collective organization of the individual right to lawful defense.

Each of us has a natural right–from God–to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?

If every person has the right to defend — even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

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On Fox News Sunday, Supreme Court Justice Stephen Breyer spoke of his dissenting decisions in the several Second Amendment cases that he heard as a Justice. He told host Chris Wallace that he thought that James Madison only included the Second Amendment in the Bill of Rights as a sop to the states and Breyer insisted that historians agreed.

In essence, Breyer was saying that Madison was not interested in an individual’s right to gun ownership and self-protection and for that reason his dissenting opinions against that individual right accorded well with what the founder’s thought on the issue.

But Breyer’s assumption that a citizen’s right to bear arms is not sacrosanct and his following contention that the founders would agree seems to ignore much of the history of the era not to mention the precedents in law and the historical record upon which the founders relied to define their political ideas — including Madison.

Of course, it is a bit ridiculous to take one lone founder’s words and assume that it represents the opinion of all of them. It is quite easy, after all, to find quotes from any particular founder that in no way reflected even a minority opinion of the day. For instance, Thomas Jefferson once advocated that all laws be dumped every few decades so that the next generation could start over with their own ideas unencumbered by past generations. Even Madison thought that idea was absurd. Hamilton found that many of his most dearly held financial ideas left his fellows cold. John Adams thought that we should call the president “your majesty,” an idea that earned him much derision. And Poor Richard himself, Benjamin Franklin, once proposed that each galaxy had it’s own “God” that ruled in his own sphere meaning that there were infinite gods for infinite galaxies. Not every idea the founders had were gems, to be sure.

Still, Madison spoke with most of his contemporaries, not outside them, when he considered the meaning of the Second Amendment.

It is certainly true that the founder’s chief interest in creating the Second Amendment was to serve two important roles. One was to create a citizen army, a militia that could be called upon to defend the nascent nation. The second was to prevent the necessity of a large standing army, a body that most of the founders feared. Based on a clear reading of history, the prevailing opinion of the day was that a standing, powerful army served the forces of tyranny far more often than it served those of liberty. Consequently they wanted to figure out a way to make sure that the U.S. Army was small and too weak to threaten the citizenry.

This fact is what Breyer pointed to in order to prove his contention that Madison was not concerned with an individual’s right to own firearms.

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This week’s historic Supreme Court case on gun rights has pivotal implications for Elena Kagan’s Supreme Court confirmation hearings. From now on, the biggest battles over the Second Amendment will be won or lost in the Supreme Court.

In the 2008 case D.C. v. Heller, the Supreme Court held 5−4 that the Second Amendment secures an individual right to own a gun. But because the Bill of Rights only applies directly to federal laws (such as those in D.C.), Heller only made the Second Amendment a right against the federal government.

On June 28 of this year in McDonald v. Chicago, a new 5−4 Supreme Court decision held that the individual right to own a gun from Heller is a fundamental right, and as such extends through the Fourteenth Amendment as a right against state and local governments as well.

Justice Stephen Breyer wrote a dissent that Justices Ruth Bader Ginsburg and Sonia Sotomayor joined in full. (Justice John Paul Stevens wrote a separate dissent.) That dissent contains a telling revelation about Barack Obama’s Supreme Court.

When Sotomayor was nominated for the High Court last year, she was asked by Judiciary Committee Chairman Pat Leahy (D−VT) whether after Heller it is now a matter of settled law that the Second Amendment secures an individual right to own a gun. Her answer was clear and direct: “Yes, sir.”

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A third instance of Elena Kagan opposing Americans’ Second Amendment right to own a gun became public Thursday, ensuring gun rights will be a major issue in her Supreme Court confirmation hearings. It also confirms that President Obama’s gun-control agenda is to create a Supreme Court that will “reinterpret” the Second Amendment until that amendment means nothing at all.

This year, no case on the Supreme Court docket is more important than McDonald v. Chicago, where the Court is deciding whether the Second Amendment right to keep and bear arms is only a right you have against the federal government, or instead if the Second Amendment (like most of the Bill of Rights) also secures a right you can assert against state and local governments. At issue is whether Chicago’s law banning guns—even in your own home—is constitutional.

When the Supreme Court considered its last Second Amendment case in 2008, District of Columbia v. Heller, then-Solicitor General Paul Clement filed a brief in the case, and then requested and received time to argue the federal government’s position on the meaning of the Second Amendment.

When the McDonald case was argued before the Court on March 2, current Solicitor General Kagan argued… Nothing. Not only did she not ask for time during oral argument, she didn’t even file a brief (which the solicitor general routinely does in important constitutional cases—and the McDonald case is tremendously important).

If someone asserts that the solicitor general shouldn’t file a brief because it’s a state issue as to whether the Second Amendment is “incorporated” to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court “incorporated” a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) was given time in oral argument time to express the government’s views in front of the Court.

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Elena Kagan may be hostile to the view that the 2^ndAmendment to the Constitution protects American’s individual right to keep and bear arms.  Bloomberg reports today, “Kagan Was ‘Not Sympathetic’ as Law Clerk to Gun-Rights Argument.”  With the evidence presented by the Los Angeles Times that Kagan was very active in the gun control agenda during her time as counsel for the President Bill Clinton Administration, a thorough examination of Kagan’s views on the 2^nd Amendment is merited.

Bloomberg Reports that “Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.”  In the wake of the District of Columbia v. Heller decision holding that the 2^nd Amendment is an individual right, it is incumbent upon Senators to explore the views of Solicitor General Elena Kagan on American’s civil right to own a firearm. More from Bloomberg:

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal. The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

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Last year’s landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment secures an individual right—not a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

Through a series of legal decisions handed down over the past century, the Supreme Court has gradually held that most of the protections in the Bill of Rights apply to the states via the Fourteenth Amendment, which declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Second Amendment, however, has been glaringly absent from this process, leaving state and local governments free to systematically violate gun rights.

Until now.

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