Elena Kagan And The Second Amendmentby Doug Mataconis
Today’s controversy burning up Memeorandum is a revelation concerning Supreme Court nominee Elena Kagan’s previously expressed views on the Second Amendment:
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.”
The law in question, of course, were the same firearms law that were at issue some 21 years later in District of Columbia v. Heller, which the Supreme Court ultimately struck down in what was actually the first explicit ruling on its part that the Second Amendment protected an individual right to keep and bear arms.
But, in 1987, a similar challenge to the same law suffered a much different fate:
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.
That is, of course, absolutely correct. Prior to Heller, the Supreme Court’s Second Amendment, though slim, was decidedly against the idea that the amendment protected an individual surprise. Thus, it’s not all that surprising to me as an attorney that a 27 year-old law clerk working for one of the most liberal Justices on the Court at the time would produce a memo arguing that the appeal should be denied.
The question, then, isn’t what Kagan thought twenty years ago when the law was different, but what she thinks now, and she gave at least some clue to that during her confirmation hearings to become Solicitor General:
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.
Kagan should clearly be questioned on her views about the Second Amendment and the Heller decision, but rather than focusing on something she wrote 20 years ago, I would hope that the Senators focus on what she believes today.