Drudge "not sympathetic" to the facts on Kagan's gun-rights record

››› ››› ADAM SHAH

Matt Drudge posted a headline stating that Elena Kagan is " 'Not Sympathetic' to Gun Rights Argument," referencing comments Kagan reportedly made in a 1987 memo about an appeal to the Supreme Court. In fact, the view that the Second Amendment does not protect civilian gun rights was generally accepted at the time Kagan wrote those words.

A Drudge Report headline claimed: "Kagan 'Not Sympathetic' to Gun Rights Argument":

Report: In 1987 memo, Kagan wrote she was "not sympathetic" to argument that Second Amendment protected civilian gun rights

From the May 13 Bloomberg News article to which Drudge linked:

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."

When Kagan wrote memo, it was accepted that the Second Amendment did not protect civilian gun rights

In 2008, Stevens and three other justices agreed that the Second Amendment did not protect gun rights for non-military purposes. In a dissent to District of Columbia v. Heller, the case that struck down Washington, D.C.'s handgun ban, Justice John Paul Stevens, who Kagan has been nominated to replace, stated that "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution." Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. From Stevens' dissent:

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939) , provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In 1987, no Supreme Court or federal appellate court decision had found that the Second Amendment protected the right to carry guns for non-military purposes. In Heller, a 2008 case, Stevens cited United States v. Miller, a 1934 Supreme Court case that upheld a ban on sawed-off shotguns, and stated: "Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980." Stevens also stated:

Until the Fifth Circuit's decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes.

Even Ed Whelan concedes that Kagan's memo does not "establish her current views on the Second Amendment"

From a May 13 blog post by National Review Online's Ed Whelan:

I am of course not contending that Kagan's 1987 statement establishes her current views on the Second Amendment, but (depending on how one reads her statement that she was "not sympathetic") it may well be one piece of evidence that supporters of Second Amendment rights try to factor into their overall calculus.

In the legal context, the term "not sympathetic" does not connote personal political views

Whelan claims that by using the term "not sympathetic," Kagan may have been referring to her personal views. From Whelan's blog post:

[I]t's interesting that Kagan, rather than stating that the claim was meritless, wrote that she was "not sympathetic" to it. Now perhaps Kagan simply used those concepts interchangeably (in the same way that lots of folks say "I feel" when they presumably mean "I think"). Or maybe it means that long before President Obama spelled out his lawless "empathy" standard, Kagan thought it meaningful to form and express her legal judgment in terms of her personal sympathy (or, in this case, lack thereof).

Supreme Court justices have often used the term "sympathetic" to refer to their agreement with legal arguments. Examples of justices using the word "sympathetic" or a form of that word to refer to agreement include:

  • Justice Samuel Alito, who wrote in an opinion joined by Justice Clarence Thomas:

As I have previously explained, I believe that the Court's approach in Begay, like its approach in this case, "cannot be reconciled with the statutory text." I nonetheless recognize that "stare decisis in respect to statutory interpretation has 'special force,' " and I am sympathetic to the majority's efforts to provide a workable interpretation of the "residual clause" of the Armed Career Criminal Act (ACCA), while retaining the "categorical approach" that we adopted in Taylor v. United States. In light of Taylor and Begay, I agree that this case should be remanded for resentencing. I write separately, however, to emphasize that only Congress can rescue the federal courts from the mire into which ACCA's draftsmanship and Taylor's "categorical approach" have pushed us. [emphasis added, citations omitted]

  • Justice Thomas, who wrote in a dissent:

In the end, I am sympathetic to petitioner's argument that §636(b)(3) should be read in pari materia with §3401(b). See Brief for Petitioner 38 ("If, in enacting the [Federal Magistrates Act] Congress believed a defendant's explicit, personal consent was constitutionally necessary to bestow authority upon a magistrate judge in federal misdemeanor cases, then a fortiori Congress would have believed that such explicit, personal consent is necessary to permit a magistrate judge to conduct felony jury selection"). And I share his view that Congress undoubtedly would have adopted something akin to §3401(b)'s requirements had it authorized delegation of felony jury selection. See Peretz, supra, at 947, n. 6 (Marshall, J., dissenting) ("I would think, however, that the standard governing a party's consent to delegation of a portion of a felony trial under the additional duties clause should be at least as strict as that governing delegation of a misdemeanor trial to a magistrate"). [emphasis added]

  • Chief Justice William Rehnquist, who wrote in an opinion:

Even the District Court, ultimately sympathetic to VMI's position, found that "[t]he Report provided very little indication of how [its] conclusion was reached" and that "[t]he one and one-half pages in the committee's final report devoted to analyzing the information it obtained primarily focuses on anticipated difficulties in attracting females to VMI." [emphasis added]

  • Justice Stevens, who wrote in a dissent:

Because I believe that political gerrymanders are more objectionable than the "racial gerrymanders" perceived by the Court in recent cases, I am not entirely unsympathetic to the Court's holding. I believe, however, that the evils of political gerrymandering should be confronted directly, rather than through the race specific approach that the Court has taken in recent years. [emphasis added, citations omitted]

Drudge's other Second Amendment attack on Kagan is equally baseless

Drudge also baselessly attacked Kagan for asserting that Second Amendment protections are "not unlimited," a statement with which Justice Antonin Scalia and the conservative majority of the Supreme Court agreed in Heller.

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