The Los Angeles Times reported that “gun advocates have seized upon a short memo” Elena Kagan wrote as a clerk for Justice Thurgood Marshall in the late 1980s “in which she urged him not to hear the appeal of a man convicted of having an unlicensed gun.” The Tmes added: “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.' But the Supreme Court ruled otherwise in 2008."

However, Kagan's statement was not an outside-the-mainstream position in 1987. In the 2008 case, 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.

Furthermore, in 1987, no Supreme Court or federal appellate court had found that the Second Amendment protected the right to carry guns for non-military purposes. In Heller, 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.

In addition, Kagan's 1987 use of the phrase “not sympathetic” is not evidence that she was referring to her personal views. Numerous current and former Supreme Court justices -- including Samuel Alito, Clarence Thomas, William Rehnquist, and Stevens -- have used the term “sympathetic” to refer to agreement or disagreement with legal arguments.