Obama Supreme Court nominee was 'not sympathetic' as law clerk to gun-rights argument

By Chad D. Baus

Bloomberg News is reporting that Elena Kagan, who was recently nominated by President Obama to the United States Supreme Court, 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.

According to Bloomberg News, Kagan 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.

From the article:

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.

The article goes on to say that 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.

Bloomberg News notes 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.

Again, from the article:

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.'"

As noted in the article, 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. And yet by his refusal to hear the 1987 challenge to the D.C. gun ban, he proved to be markedly unconcerned about the other civil right of people of color living in the District - the right to bear arms for self-defense.

Information provided in the article proves Marshall was also inconsistent other social issues - as a justice, he opposed the death penalty, but backed abortion rights. Now 50 years-old, Kagan clerked for Marshall during the court's 1987-88 term and has described him as one of her heroes.

Once more from the article:

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.

Opponents of Kagan's nomination are certain to focus on her complete lack of judicial experience as the Senate moves toward confirmation hearings. She has never been a judge, and her resume of courtroom experience is decidedly thin.

One year ago, President Obama declared war against America's gun owners with his nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, despite revelations that she had once ruled on a Second Circuit Appeals Court panel that the Second Amendment is not a fundamental right and does not apply to the states.

The president's nomination of Kagan presents further proof that he lied during the campaign when describing himself as a pro-Second Amendment candidate.

Chad D. Baus is the Buckeye Firearms Association Vice Chairman.