Elena Kagan and the Second Amendment

RPC SCOTUS UPDATE:

Will President Obama’s Nominee to the Supreme Court Uphold Gun Rights?

The right to “keep and bear arms” is a cherished feature of American liberty and is enshrined in the Second Amendment to the United States Constitution.[i]  Nonetheless, this right has been the subject of steady attacks from the left for decades.  Recently, supporters of the Second Amendment won an important victory when the Supreme Court struck down the Washington, D.C., gun ban.[ii]  Any day now, with the pending McDonald case, the Court is expected to rule on whether the right to bear arms protects against encroachment by state and local governments as well.[iii]

At this critical point in the history of Second Amendment jurisprudence, it is vital to ask whether Elena Kagan is prepared to enforce this core constitutional right as a justice on the Supreme Court.  Unfortunately, her record suggests she has long been at best indifferent, and at worst hostile, to the Second Amendment.

As a law clerk, Ms. Kagan was dismissive of Second Amendment claim.  While clerking for liberal Supreme Court Justice Thurgood Marshall, Kagan was asked to consider a case remarkably similar to the 2008 case in which the Court struck down the D.C. gun ban.  Assessing this earlier case, Sandidge v. U.S.,[iv] she wrote that Mr. Sandidge’s “sole contention is that the District of Columbia’s firearm statutes violate his constitutional right to ‘keep and bear Arms.’  I’m not sympathetic.”[v]  She recommended that the Court not even consider the case, thereby allowing Mr. Sandidge’s conviction to stand.

Ms. Kagan worked on numerous anti-Second Amendment initiatives in the Clinton Administration.  In the 1990s, Ms. Kagan became a senior advisor to President Clinton.  There, at the center of an anti-gun rights Administration, she worked to advance its policy agenda. 

  • Ms. Kagan was a key figure in the Clinton Administration’s effort to respond to the Supreme Court’s 1997 ruling in Printz v. United States,[vi] which struck down parts of the 1993 Brady handgun law.  Preparation for this effort began months before the Court ruled in the case.[vii]  Proposals considered by Kagan would have effectively outlawed the sale of handguns where a “chief law enforcement officer” remained unavailable or unwilling to conduct a background check. [viii]  
  • Ms. Kagan appears to have backed imposing gun control measures, struck down by the Court in Printz, by presidential fiat.  An e-mail from a Kagan colleague states:  “Based on Elena's suggestion, I have also asked both Treasury and Justice to give us options on what POTUS could do by executive action -- for example, could he, by executive order” reassert aspects of the Brady law prohibiting the sale of handguns without action by a chief law enforcement officer.[ix]  She also considered legislative efforts to the same end.[x]
  • Ms. Kagan co-authored two policy memos in 1998 that advocated for White House events and policy announcements on various gun control proposals, including “legislation requiring background checks for all secondary market gun purchases,”[xi] a “gun tracing initiative,”[xii] a new law “that would hold adults liable if they give children easy access to guns,”[xiii] and a call for a new gun design “that can be shot only by authorized adults.”[xiv]  
  • Ms. Kagan drafted an executive order to restrict the importation of certain semiautomatic rifles, according to documents released to the Judiciary Committee.[xv] 
  • Ms. Kagan’s office also was involved in efforts to allow background check information from lawful sales to be retained by law enforcement.  In a 1998, memo, a member of Kagan’s staff proposed that “the longer we are able to keep records—even days, weeks—the more useful [it] will be as an overall law enforcement tool.  This, of course, is exactly what the gunners don’t want.”[xvi]   

As Solicitor General, Ms. Kagan declined to defend Second Amendment rights.  When she was nominated to be Solicitor General, Ms. Kagan pledged to respect recent Supreme Court jurisprudence concerning the Second Amendment, but declined to address her personal views on the subject.[xvii]  She has not been directly confronted with Second Amendment issues since her confirmation, but notably declined to submit a brief in support of the petitioner in the McDonald case.[xviii]  Although that case involves local law, any ruling by the Supreme Court could have a significant impact on a variety of federal laws and programs.  Her confirmation hearings present an opportunity for Ms. Kagan to explain her thinking and address criticisms[xix] that this decision reflects the continued lack of sympathy toward Second Amendment rights that she demonstrated as a law clerk.

If confirmed as a Supreme Court justice, Ms. Kagan would be in a position to rule upon the Second Amendment claims of American citizens.  She could no longer remain silent on the issue.  With this, as with other issues, Ms. Kagan must demonstrate to the Senate that she is prepared to set aside her personal views and neutrally apply the law.


[i] U.S. Constitution

[ii] District of Columbia v. Heller, 554 U.S. 290 (2008)

[iii] McDonald v. Chicago, docket number 08-1521

[iv] 520 A.2d 1057 (D.C.), cert. denied, 484 U.S. 868 (1987)

[v] Memorandum from Elena Kagan to Justice Thurgood Marshall on Sandidge v. United States, August 27, 1987

[vi] 521 U.S. 898 (1997)

[vii] Memorandum to from Dennis Burke to Michelle Crisci and Bruce Reed (copying Elena Kagan), March 17, 1997

[viii] Id.

[ix] Id.

[x] Id.; Memorandum from Larry Shimabukuro to Bruce Reed, Elena Kagan, Michelle Crisci, October 11, 1998

[xi] Memorandum from Elena Kagan and Bruce Reed to the Chief of Staff, “re: DPC October Events Ideas,” September 16, 1998

[xii] Id.

[xiii] Memorandum from Elena Kagan and Bruce Reed to the Chief of Staff, “re: Summer Announcements and Events,” June 22, 1998

[xiv] Id.

[xv] Memorandum from Elena Kagan and Charles F.C. Ruff to President Bill Clinton, Memorandum for the President, November 13, 1997, http://online.wsj.com/public/resources/documents/Kaganassaultweapons.pdf

[xvi] Memorandum from Jose Cerda to Bruce Reed, Elena Kagan, and Leanne Shimabukuro, October 6, 1998

[xvii] Elena Kagan, Answers to Written Questions, Confirmation Hearing on the Nominations of Thomas Perrelli to be Associate Attorney General of the United States and Elena Kagan Nominee to be Solicitor General of the United States, 11th Cong. 151 (2009), http://documents.nytimes.com/elena-kagan-documents#document/p318 

[xviii] “Kagan’s Inaction on Second Amendment Case Raises Questions,” Hans von Spakovsky and Todd Gaziano, The Foundry (Heritage Foundation), May 14, 2010, http://blog.heritage.org/2010/05/14/kagans-inaction-on-second-amendment-case-raises-questions/

[xix] Id.; “Elena Kagan’s Opposition to Gun Rights,” Ken Klukowski, Townhall.com, http://townhall.com/columnists/KenKlukowski/2010/05/13/elena_kagan%E2%80%99s_opposition_to_gun_rights?page=full&comments=true/page/full