In 2010, on the last day of her testimony before the Senate Judiciary Committee,
Justice Elena Kagan, was asked “Do you believe it is a fundamental, pre-existing
right to have an arm to defend yourself?,” by Senator Tom Coburn of
When Kagan began to answer by stating that she “accept[ed]” the Supreme Court’s decision in District of Columbia v. Heller, which held that the Second Amendment guarantees an individual right to keep and bear arms, Coburn interrupted to clarify that he was not asking whether she believed the right to be protected by the Constitution, but rather whether she considered it to be a “natural right.”
“Senator Coburn,” replied Kagan, “to be honest with you, I don’t have a view of what are natural rights independent of the Constitution.”
The full exchange is as follows:
Coburn: Do you believe it is a fundamental, pre-existing right to have
an arm to defend yourself?
Kagan: Senator Coburn, I very much appreciate how deeply important the
right to bear arms is to millions and millions of Americans. And I
accept Heller, which made clear that the Second Amendment conferred
that right upon individuals, and not simply collectively.
Coburn: I'm asking you, Elena Kagan, do you personally believe there
is a fundamental right in this area? Do you agree with Blackstone [in]
the natural right of resistance and self-preservation, the right of
having and using arms for self-preservation and defense? He didn't say
that was a constitutional right. He said that's a natural right. And
what I'm asking you is, do you agree with that?
Kagan: Senator Coburn, to be honest with you, I don't have a view of
what are natural rights, independent of the Constitution. And my job
as a justice will be to enforce and defend the Constitution and the
laws of the United States.
Coburn: So you wouldn't embrace what the Declaration of Independence
says, that we have certain God-given, inalienable rights that aren't
given in the Constitution that are ours, ours alone, and that a
government doesn't give those to us?
Kagan: Senator Coburn, I believe that the Constitution is an
extraordinary document, and I'm not saying I do not believe that there
are rights pre-existing the Constitution and the laws. But my job as a
justice is to enforce the Constitution and the laws.
Coburn: Well, I understand that. I'm not talking about as a justice.
I'm talking about Elena Kagan. What do you believe? Are there
inalienable rights for us? Do you believe that?
Kagan: Senator Coburn, I think that the question of what I believe as
to what people's rights are outside the Constitution and the laws,
that you should not want me to act in any way on the basis of such a
Coburn: I would want you to always act on the basis of the belief of
what our Declaration of Independence says.
Kagan: I think you should want me to act on the basis of law. And that
is what I have upheld to do, if I'm fortunate enough to be confirmed,
is to act on the basis of law, which is the Constitution and the
statutes of the United States.