Patterico's Pontifications


Elena Kagan on Law and History

Filed under: Judiciary,Second Amendment — DRJ @ 12:43 pm

[Guest post by DRJ]

CBS News reports on Day 2 of the Elena Kagan hearings regarding Senator Grassley’s questions about the Second Amendment. Kagan pointed out the McDonald decision was “based so much on history” and stated the Court has decided gun ownership is a fundamental right that is “good precedent going forward.”

All case law is precedent but that won’t stop the Court from changing it if the Justices think it’s wrong. That’s especially true here, where Kagan characterizes the decision as “based so much on history” — presumably as opposed to the law. Kagan reinforces the idea that the decision isn’t based on law when she adds the italicized qualifier: “The [McDonald] case is based so much on history, which I’ve never had the occasion to look at.”

Kagan is a lawyer, a law professor and a former Law School Dean. If she’s never looked at the history of gun rights and the Second Amendment, it’s either because she has no interest in the subject or it’s because she thinks history is not required to decide a Second Amendment legal question. I think the latter is more likely.

Thus, this may be what Kagan is really saying: A judge is not required to know about history to decide a legal question, and a legal decision based on history instead of law can be wrong.



  1. If she’s never looked at the history of gun rights and the Second Amendment, it’s either because she has no interest in the subject or it’s because she thinks history is not required to decide a Second Amendment legal question. I think the latter is more likely.

    Or her attention has been on other matters. That is: “I have no interest in [x]” and “I have interest in [x] but I have more interest in [y...n] and only so much time to go around” would both explain failure to look at something.

    (For what it’s worth, I have little interest in the history of gun rights, have never studied it, and think that the court got it right in both cases because there’s no principled way to incorporate speech but not gun rights. But I also think it’s unreasonable to expect someone to specialize in everything; that’s what specialists are for. :) ).

    Comment by aphrael (e0cdc9) — 6/29/2010 @ 1:50 pm

  2. Remember when Estrada was considered unqualified? Now we have a wise Latina and Kagan.

    Comment by JD (959071) — 6/29/2010 @ 1:57 pm

  3. Remember when Thomas said that he’d never studied Roe and had no opinion on it? This is like that.

    Comment by Kevin Murphy (805c5b) — 6/29/2010 @ 3:09 pm

  4. To respond to aphrael, the short answer to the history is where Stevens talked about not needing the RKBA for a civilized society, and considering the history of Jim Crow which his “correctly decided” 19th Century cases fostered.

    Comment by Kevin Murphy (805c5b) — 6/29/2010 @ 3:12 pm

  5. Comment by Kevin Murphy — 6/29/2010 @ 3:09 pm

    No, I think J.Thomas’ response was that they had never discussed Roe “around the water cooler” in the dorms. Whatever his exact words were, it was probably an evasion, but legally/semantically correct.
    Kagan is just flat-out lying.
    And, the problem with specialization is that you get so narrowed in your focus, that you are unable to see the “big picture” and to connect-the-dots.
    That is why we have so many “unintended consequences” in law today – too many checkers players, and not enough chess players.

    Comment by AD - RtR/OS! (f22b48) — 6/29/2010 @ 3:45 pm

  6. Kevin, oh I think the claim that Kagan has no opinion would be absurd. That said … I’ve got opinions about lots of things which I haven’t studied, and part of being an intelligent adult is that I’m willing to accept that those opinions are unfounded and not shoot my mouth off about them until I know more. :)

    So my interpretation of both Kagan and Thomas’ comments is in that vein: well, we’ve talked about it, and I’ve got an opinion, but I haven’t done the work needed to know if my opinion is horsesh*t or not, so I’m not willing to say anything in public.

    Comment by aphrael (e0cdc9) — 6/29/2010 @ 4:06 pm

  7. aphrael – On gun rights apparently all you have to know is two words. Appamattox. Settled. Everything else is just crazy talk.

    Comment by daleyrocks (1d0d98) — 6/29/2010 @ 4:31 pm

  8. Daleyrocks, I’m sure that was intended as snark, but I don’t follow it.

    Comment by aphrael (9e8ccd) — 6/29/2010 @ 9:04 pm

  9. Question – Can we start a move to impeach Sotomayor for her vote in the MacDonald case? She specifically stated Heller was the proper decision and settled law during her hearings just months ago and now votes 180 degrees the other way.

    (And what does it say about left ideology when even a leftist, appointed by a leftist, testifying before a leftist controlled institution, reported on by a leftist media, has to lie about a subject as basic as this.)

    Comment by Have Blue (854a6e) — 6/29/2010 @ 10:40 pm

  10. Have Blue – Linky for #9, please?

    Comment by JD (959071) — 6/29/2010 @ 10:51 pm

  11. What it means is that it’s all part of “the show”.

    Comment by Icy Texan (b865a5) — 6/29/2010 @ 10:54 pm

  12. aphrael @8 – You are correct and it wasn’t directed at you. It flows from some other recent threads.

    Comment by daleyrocks (1d0d98) — 6/29/2010 @ 10:59 pm

  13. Sorry no link right now. Does anyone have quick link to a transcript?
    Heller was a major issue when Sotomayor was testifying and she was specifically asked about it.

    Comment by Have Blue (854a6e) — 6/29/2010 @ 11:12 pm

  14. HB…here’s one link:

    Comment by AD - RtR/OS! (f22b48) — 6/29/2010 @ 11:22 pm

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