Kagan: Possession is “one of the proverbial sticks in the bundle of property rights”

May 18th, 2015

Justice Kagan’s unanimous decision in Henderson v. United States offers this chestnut for Property professors:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an- other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Usually, the Court focuses on  the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. U.S. (1979). But here, the focus is on “ownership.” Her use of the “thick” stick is an apt image. I will use that in class rather than the bland “essential.”

Kagan is really giving Scalia and Roberts a run for their money. Her writing is so short and crisp. She handles a somewhat-complicated statutory interpretation issue in only 8 pages. There is very little verbiage, and it cuts right to the chase. Every sentence accomplishes what it aims to accomplish. And this property reference is directly on point. Plus the case was argued on 2/24/15. Less than two months to decision. Sharp.