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vantec08
05-13-2010, 5:49 AM
http://www.bloomberg.com/apps/news?pid=20601087&sid=aPI35t8uR6Gs

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.

spencerhut
05-13-2010, 6:02 AM
She is bad news for us, but feel there is not much we can do about it. Wait, I know! Let's call and fax and write letters! I'm certain our elected officials will want to hear our opinion on this before they appoint this lady for life. :rolleyes:

(Yes I'll call write etc. I'm just not real sure they care)

vantec08
05-13-2010, 6:25 AM
Hear ya loud and clear, spencer. Between Kagan and ole Meg, not much hopey-changey for the 2nd in CA. Perhaps Ken Klukowski was right .. . . . she's a stealth anti.

ScottB
05-13-2010, 7:04 AM
As long as Obama or someone of his ilk is in the White House, judicial appointments are going to be a bitter pill for 2A supporters. Obama has had the extraordinary opportunity to appoint 2 Supreme Court justices before the mid-point of his first term (the average is about 1 appointment per term). Remember that Ginsberg has had a recent bout with pancreatic cancer - which is about 95% fatal within 1 year after diagnosis. I wouldn't wish that fate on anyone, but that she is still around and sitting on the bench is amazing, but you have to consider she is on borrowed time.

The likelihood is there will be at least one more Obama appointment. The only way we can impact that is to gain control of ther Senate in November and elect a different president in 2012. Both prospects are unlikely at this point. (frankly, I don't think gun control is all that interesting to Obama, but it is to his base, his advisors and his party). There is one other thing to hope for ... that Kagan turns out to be the left's Souter, but don't hold your breath.

Maybe I am wrong, but given the short list of appointees, Kagan appears to be the least threatening to the 2nd. If she goes down, who do we get? Kuo? Woods? Sustein? All known to be bad news.

Dr Rockso
05-13-2010, 10:32 AM
Maybe I am wrong, but given the short list of appointees, Kagan appears to be the least threatening to the 2nd. If she goes down, who do we get? Kuo? Woods? Sustein? All known to be bad news.

Agreed. Part of me also thinks this is an attempt by Bloomberg to bait the NRA et al into opposing Kagan (who isn't, IMO, a 'true believer' on gun control), only to get a real anti instead...

SAN compnerd
05-13-2010, 12:07 PM
Yes we are in a terrible position, but I am starting to agree with the 'lesser of evils' perspective. While her comments on Heller from her SG confirmation show some hope for her not to be a complete anti, her comments on the 1a and how if speech is not 'socially valuable' it could be restricted worries me.

It is also starting to look like she is willing to take whatever position is politically advantagous to her so that may indicate that all bets are off on which way she will really go on constitutional issues. It is quite telling that she clerked for Justice Marshall, who I believe is credited with coining the phrase "living constitution". I have also read that she supports Marshall's idea that the court should decide issues based on helping the 'deprived and underprivildged', not equally based on what is written in the constitution.

tube_ee
05-13-2010, 1:21 PM
It is quite telling that she clerked for Justice Marshall, who I believe is credited with coining the phrase "living constitution".

Not really... Lawrence Lessig clerked for Scalia.

Bright, ambitious law students need to clerk for the highest-placed judges they can. Nary a one of 'em's gonna turn down an offer to clerk for any SCOTUS justice, no matter what their personal ideology is.

--Shannon

bwiese
05-13-2010, 1:32 PM
Agreed. Part of me also thinks this is an attempt by Bloomberg to bait the NRA et al into opposing Kagan (who isn't, IMO, a 'true believer' on gun control), only to get a real anti instead...

Yeah. We screwed up on Sotomayor - NRA's Halbrook attacked her, and there was no conceivable chance she wasn't gonna be confirmed (even aside from gun issues, the Republicans just don't have the votes).

cmaynes
05-13-2010, 4:50 PM
UH THAT WAS ON BLOOMBERG NEWS..... WHO OWNS BLOOMBERG NEWS EVERYONE?

Scarecrow Repair
05-13-2010, 8:31 PM
UH THAT WAS ON BLOOMBERG NEWS..... WHO OWNS BLOOMBERG NEWS EVERYONE?

Someone who doesn't have to shout to draw attention to the obvious.

five.five-six
05-13-2010, 8:35 PM
Someone who doesn't have to shout to draw attention to the obvious.


LMMFAO