Breitbart.com promoted a series of falsehoods about the legality of Proposition 8 in order to champion the efforts of San Diego County Clerk Ernest J. Dronenburg, Jr., who unsuccessfully sought to have the California Supreme Court issue a stay on the issuing of same-sex marriage licenses in his county.
In a July 23 column, Breitbart.com legal affairs analyst Ken Klukowski lambasted the judicial overruling of California's Proposition 8 and argued that Dronenburg "is under no court order" to issue marriage licenses to same-sex couples. Klukowski's analysis of the Prop 8 case and his assertion that Dronenburg has the authority to block same-sex marriages are fundamentally misguided.
First, Klukowski vehemently denounced Vaughn Walker, the U.S. District Court judge who found Prop 8 unconstitutional in 2010. According to Klukowski, Walker's legal reasoning was both flawed and deeply antagonistic toward religious Americans:
The first clear item is that his opinion is simply terrible. He made official judicial findings of fact that religious beliefs defining marriage as one man and one woman are irrational, and driven by either superstitious ignorance or hateful bigotry. It is emphatically not the province of the federal courts to make such pronouncements regarding the peaceful faith of over 200 million Americans.
Breitbart.com blogger Ken Klukowski has joined the ranks of right-wing figures hyping the bogus conspiracy theory that the ATF's botched Operation Fast and Furious was actually a secret Obama administration plot to undermine the Second Amendment rather than an operation to bring down Mexican drug cartels. However, the lead Republican investigating the Fast and Furious operation, House Oversight Committee Chairman Darrell Issa (R-CA), has repeatedly released reports that have debunked this theory.
Klukowski wrote that "the NRA has been pushing for information regarding who knew what in the administration, and any related political objectives being pursued by Team Obama." Klukowski also quoted NRA chief lobbyist Christopher Cox as saying that "[a]ccording to their internal emails, it was all to advance their gun-control agenda."
But in a May 3 memorandum and accompanying report attempting to lay the groundwork for a contempt citation against Attorney General Eric Holder, Issa said that the Fast and Furious operation to allow straw purchasers to buy and transfer guns without being arrested was conceived because law enforcement officials "hoped the weapons, after they were recovered at crime scenes in Mexico, could be traced and linked to cartel operatives including possible high-level financiers, suppliers, and possibly even king-pins."
From Issa's memorandum:
Fast and Furious Conceived
The ATF Phoenix Field Division began Operation Fast and Furious in the fall of 2009 after suspicious weapons purchases led agents to the discovery of an apparent Phoenix-based arms trafficking syndicate. Having been encouraged to devise grander strategies to stop the transfers of weapons to Mexican drug cartels, the Phoenix based agents devised a strategy that went beyond simple arrests or weapons confiscations. They would allow the U.S.-based associates of a Mexican drug cartel to continue acquiring firearms uninterrupted. In doing so, they hoped the weapons, after they were recovered at crime scenes in Mexico, could be traced and linked to cartel operatives including possible high-level financiers, suppliers, and possibly even king-pins.
The operation sought to achieve its lofty goals by focusing on the ringleader of the weapons smuggling syndicate they had identified: Manuel Celis-Acosta. Celis-Acosta was using a then-unknown number of straw-purchasers, including Jamie Avila, to purchase weapons.
At no point in the 17-page memo or accompanying 44-page draft contempt citation against Holder did Issa assert that the program may have had a different, more nefarious purpose.
Conservative media have relied on distortions to paint Elena Kagan as an opponent of the constitutional right to keep and bear arms. Now, Constitutional Accountability Center's Doug Kendall has pointed out a particularly disingenuous attack on Kagan in this area. Last week, Townhall.com columnist Ken Klukowski and former Ohio Secretary of State Ken Blackwell claimed on BigGovernment.com that Elena Kagan showed that she opposes gun rights by deciding not to file a brief in a case challenging Chicago's gun control laws. In fact, as Kendall has demonstrated, Kagan followed normal Solicitor General practice in the case, and Blackwell's and Klukowski's purported evidence to the contrary is based on a falsehood.
Blackwell and Klukowski claimed to have evidence that Kagan opposes "Americans' Second Amendment right to own a gun." They cited Kagan's decision as Solicitor General not to file a brief in McDonald v. City of Chicago, a case dealing with the question of whether the Second Amendment individual right to keep and bear arms enunciated in District of Columbia v. Heller applies to the states through the "incorporation" doctrine, under which certain protections of the Bill of Rights apply to the states.
The argument is nonsensical on its face: Kagan didn't file a brief in the case. Therefore, she didn't take a position on whether the Second Amendment applied to the state. Therefore, one can't determine her views on the Second Amendment on the basis of what she did in that case. Not to mention that one can't infer personal legal opinions from Kagan's actions as Solicitor General in any event.
But Kendall has uncovered an even more fundamental dishonesty in their work. Blackwell and Klukowski insist that it is normal practice for the Solicitor General's office to file briefs in incorporation doctrine cases and cite the fact that, in 1969, the Solicitor General filed a brief in Benton v. Maryland -- a case dealing, in part, with whether the Double Jeopardy Clause of the Fifth Amendment applies to the states. Blackwell and Klukowski wrote:
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.
In fact, as Kendall notes, the Solicitor General's brief in Benton v. Maryland did not even mention the incorporation issue. Rather, the SG's brief dealt solely with another issue in the case: the issue of whether the federal courts should continue to apply the "concurrent sentence doctrine" to avoid hearing certain appeals in criminal cases. The SG's brief in Benton does not even mention the Double Jeopardy Clause or the incorporation doctrine. In addition, it was filed at the invitation of the Supreme Court. According to the majority opinion by Justice Thurgood Marshall: "The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument."
From the April 28 edition of Fox News' Hannity:
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From the April 28 edition of Fox News' Hannity:
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