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Kagan Was ‘Not Sympathetic’ as Law Clerk to Gun-Rights Argument

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Elena Kagan, U.S. solicitor general
Elena Kagan, U.S. solicitor general, smiles during a meeting in Washington, on Wednesday. Photographer: Joshua Roberts/Bloomberg

May 13 (Bloomberg) -- 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.

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.”

Kagan, currently the U.S. solicitor general, has made few public remarks about the Constitution’s Second Amendment. The Supreme Court in 2008 ruled, in a case that overturned the District of Columbia’s handgun ban, that the Constitution protects individual gun rights.

As a nominee to be solicitor general last year, Kagan told lawmakers that she accepted that 5-4 decision in District of Columbia v. Heller as a precedent of the court.

“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,” she said.

Review Denied

The Heller decision left room for states to require registration of weapons. The majority also said the ruling didn’t cast doubt on laws barring handgun possession by convicted felons and the mentally ill, or restrictions on bringing guns into schools or government buildings.

The lower court ruling in the 1987 case, issued by the District of Columbia’s highest court, said the Second Amendment protects only the rights of states to raise militias, and not individual gun rights. The ruling upheld Lee Sandidge’s conviction for carrying a pistol without a license, possession of an unregistered firearm and unlawful possession of ammunition.

The high court refused to hear the case, known as Sandidge v. United States. The memo to Marshall, found in his papers at the Library of Congress, includes a handwritten “D,” indicating that he was among those who voted to deny review.

White House spokesman Ben LaBolt said the position taken in the memo to Marshall reflected the prevailing view of the law at the time.

Reflecting Marshall

During her confirmation hearing to be solicitor general, the federal government’s top Supreme Court advocate, Kagan said she was trying to reflect Marshall’s views when she evaluated so-called petitions for certiorari, or cert petitions. She called herself a “27-year-old pipsqueak” working for a “90-year-old giant in the law.”

“He was asking us, in the context in those cert petitions, to channel him and to think about what cases he would want the court to decide,” Kagan said. “And in that context, I think all of us were right to say, ‘Here are the cases which the court is likely to do good things with from your perspective, and here are the ones where they’re not.’”

Marshall was a civil rights icon before becoming the first black justice. He led the legal fight to dismantle the “separate but equal” regime in public education, arguing the landmark Brown v. Board of Education case.

As a justice, he opposed the death penalty and backed abortion rights and affirmative action. Kagan, now 50, clerked for Marshall during the court’s 1987-88 term and has described him as one of her heroes.

Clues to Kagan

The memos provide clues to Kagan’s potential approach as a justice. Much like Marshall, Kagan might find herself playing defense, at least in her first few years, working strategically to thwart the agenda of a more conservative majority.

Kagan on numerous occasions urged the justice to vote for so-called defensive denials, rejecting appeals from criminal suspects and defendants to prevent his more conservative colleagues from giving more power to police and prosecutors.

She urged rejection of an appeal from an Illinois man whose burglary conviction hinged on evidence discovered when he was stopped, ordered to lie down and searched by police. The search took place even though police lacked the “probable cause” required to make an arrest, Kagan said.

Kagan said she thought the court, if it heard the case, would uphold the conviction. That “would be an awful and perhaps quite consequential holding,” she wrote.

In recent years, Chief Justice John Roberts and four colleagues have joined forces in 5-4 decisions to strike down campaign finance regulations and limit shareholder lawsuits, as well as to protect gun owners’ rights.

B-Minus in Torts

The Marshall papers also include Kagan’s Harvard Law School transcript and glowing letters of recommendation to the justice from her professors. “She is soft-spoken and delightful to be with, but razor-sharp and iron-hard in intellectual give and take,” wrote one, Abram Chayes.

One professor referenced her transcript, which showed Kagan got off to a slow start as a law student. She received a B in criminal law and a B-minus in torts in the fall of her first year, later receiving predominantly A’s in classes including constitutional law.

“Whatever was in her way on those fall term exams, it wasn’t affecting her class performance even during the fall, and evidently was gone by exam time in May,” wrote Frank Michelman, who taught her in a spring property law course and said he had contact with his students starting in September.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Kristin Jensen in Washington at kjensen@bloomberg.net.

To contact the editor responsible for this story: Robin Meszoly at rmeszoly@bloomberg.net.

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