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Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law by Hadley Arkes

Engage Volume 11, Issue 3, December 2010

It was her last day of testimony before the Senate Judiciary Committee, and the question seemed to surprise Elena Kagan, the President’s nominee for the Supreme Court. “Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?,” asked Senator Tom Coburn of Oklahoma. 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. 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—I don’t have a view of what
are natural rights independent of the Constitution.”