Bench Memos

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Kagan on Second Amendment


This Bloomberg article reports that Elena Kagan, as a law clerk to Justice Marshall, wrote that she was “not sympathetic” to a man’s claim that “the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms.’” 

According to the article, a White House spokesman “said the position taken in the memo to Marshall reflected the prevailing view of the law at the time.”  But it’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). 

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.


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