Kagan told senators during her recent confirmation hearings that an individual's right to bear arms under the Second Amendment is "settled law."
When asked if there's a fundamental right to own a gun for self-defense in one's home, she said, "There is no doubt ... that is binding precedent ... in any case."
But members of the powerful National Rifle Association say Kagan's responses amount to a smokescreen, and the gun-rights organization has launched a last-ditch effort to oppose her confirmation. The NRA has warned it will campaign against any Kagan supporter who faces re-election in the years ahead.
"Everything in her background suggests a vote for Elena Kagan is a vote against gun rights," said Chris W. Cox, executive director of the NRA's lobbying arm.
Kagan helped shape gun control policy as an adviser in the Clinton administration, and wrote "I'm not sympathetic" in a 1987 memo to Justice Thurgood Marshall in a case involving a gun-rights claim. Cox said there had been some hope she would offer a clear endorsement of recent Supreme Court precedent upholding gun rights, but that hope was dashed.
"Supporting a nominee who won't answer a straightforward question on the constitutional right to own a gun is not acceptable," he said. "She was using legal terms for political cover."
The NRA's line in the sand was one reason why Senate Republicans blocked a scheduled Judiciary Committee vote on Kagan's nomination Tuesday, delaying it until next week.
"Most of us would have thought 'settled law' means more than 'deference to precedent,'" said Republican Sen. Jeff Sessions of Alabama, who worries that Kagan doesn't view the Supreme Court's recent decisions on individual gun rights as immutable.
Still, while most political strategists believe the NRA's campaign won't derail Kagan's expected confirmation -- Democrats have the votes and Republicans seem disinclined to filibuster -- it could add political pressure on Democrats from pro-gun states eager to appease the gun lobby but reluctant to oppose President Obama.
"I don't think anybody is going to want to vote to hurt their perfect NRA rating, but if it's a 'no' vote that will cross the president, they might think twice," said Stuart Taylor, contributing editor at Newsweek and the National Journal who specializes on constitutional law and the Supreme Court. "I don't think the NRA threat will make a difference in her overall confirmation, but you may see some senators abstaining" from voting.
Eight Senate Democrats have NRA "A" ratings: Max Baucus and Jon Tester from Montana; Robert Casey from Pennsylvania; Jim Webb and Mark Warner from Virginia; Ben Nelson from Nebraska; Mark Begich from Alaska; and Tim Johnson from South Dakota. So far, none have publicly opposed Kagan.
"This is an important vote," said Cox. "It absolutely matters, and it will factor into our ratings and endorsements in the next election."
NRA Warns Kagan Statements Mirror Sotomayor's
"I understand how important the right to bear arms is to many many Americans," said Sotomayor in a video clip from her confirmation hearing used in the ad. "In fact, one of my godchildren is a member of the NRA, and I have friends that hunt. I understand the individual right fully that the Supreme Court recognized in Heller," she said in the video clip, referring to the 2008 ruling that struck down Washington, D.C.'s 32-year handgun ban as unconstitutional and determined the Second Amendment protected an individual's right to keep and bear arms for self-defense.
The ad's narrator then says that once Sotomayor made it to the Supreme Court bench, she "voted exactly the opposite.
"Sotomayor joined an opinion that would erase the Second Amendment from the Constitution," the voice says, referring to her dissent from the recent McDonald decision that overturned Chicago's strict ban on handguns. "It said that nothing in the Second Amendment states that the right to bear arms is a fundamental right for all Americans."
Kagan testified that she would honor the McDonald decision as "binding precedent" should another gun rights case come before the court.
"It's not enough, even if you think something is wrong, to say, 'Oh, well, that decision was wrong,'" she said during her hearing. "The whole idea of precedent is ... that you assume that it's ... right and that it's valid going forward."
So far, 10 Republican senators -- Minority Leader Mitch McConnell of Kentucky; Johnny Isakson of Georgia; Lisa Murkowski of Arkansas; Orrin Hatch and Bob Bennett of Utah; James Inhofe of Oklahoma; Jim DeMint of South Carolina; Mike Johanns of Nebraska; John McCain of Arizona; and David Vitter of Louisiana -- have announced plans to vote against Kagan.
The Judiciary Committee is expected to vote next Tuesday, keeping Kagan's nomination on track for full Senate consideration before the August recess. Kagan, 50, a former solicitor general for the Obama administration, dean of Harvard Law School and staff attorney in the Clinton administration, has never been a judge. If confirmed, she would become the Supreme Court's 112th justice and the third woman on the bench.