In written testimony on the nomination of Elena Kagan, Colorado political commentator and law professor David Kopel advances a mélange of distortions of Kagan's record on gun issues.

Kopel, who is scheduled to be a Republican witness at Kagan's hearing, wrote his prepared testimony with attorney Stephen P. Halbrook. While Kopel and Halbrook note that Kagan has shown some solicitude for gun owners in her career, they claim that "[e]vidence of a hostile attitude towards the Second Amendment can be found at the beginning of [Kagan's] legal career." As evidence, Kopel and Halbrook point to the fact that, as a clerk to Justice Thurgood Marshall in the 1987, Kagan said she was “not sympathetic” to a person who asked the Supreme Court to hear a challenge to the District of Columbia's handgun laws.

This is an old smear forwarded more than a month ago by The Drudge Report and we've debunked it before. First, as Justice John Paul Stevens has noted, before 2001, no federal appeals court had ever held that the Second Amendment protected individual rights and the Supreme Court certainly had not done so. And when the Supreme Court found that such an individual right existed in 2008, four justices dissented. So it was hardly out of the mainstream for Kagan to advise Marshall to vote not to hear the case.

Second, contrary to Kopel's and Halbrook's assertion that “Obviously the phrase 'I'm not sympathetic' expressed Kagan's personal views,” legal expert and former Supreme Court clerk Eugene Volokh has stated that the memos show Kagan “doing what she was supposed to do” which “was to give Justice Marshall advice based on whether the Court's decision was likely to clarify or improve the law from Justice Marshall's perspective.” Indeed, Kagan herself has said that the purpose of her memos was to "channel" Marshall.

Third, Kagan's 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.

Kopel and Halbrook then move on to the false claim that in a memo she wrote as a Clinton White House official, Kagan was "[c]omparing the NRA and the KKK as 'Bad guy orgs.' " In fact, Kagan wasn't comparing the NRA to the Klan; rather, she was reportedly taking notes that reflected a Justice Department attorney's assessment of whether proposed legislation would shield volunteers for either of those two groups from lawsuits. Indeed, the supposedly controversial language in Kagan's notes reportedly echoed the language of a memo that the attorney had sent to Kagan.

Kopel and Halbrook try to rebut these facts by pointing to a memo that the Justice Department attorney, Francis Allegra, sent to Kagan. They write: "[A] different document, from Ms. [sic: Mr.] Allegra, makes it clear that it was Kagan who was instructing Allegra specifically to look up the non-profit status of the KKK and the NRA." They quote the portion of the memo that states: “For now, I think we need to be cautious in picking examples of organizations. If you have other names you want me to run down in the Cumulative List, I would be glad to check them out.”

Read the memo for yourself. Does it provide any evidence that Kagan compared the NRA to the Klan? No. Does it provide any evidence that Kagan was the one referring to the Klan and the NRA as “bad guy orgs”? No. It's actually a memo in which Allegra said he had determined that volunteers for the NRA and the Klan would not be protected by the bill and asked if there are other organizations that he should check on.

Kopel and Halbrook then move on to attacks on Kagan for her work on two Clinton administration gun policy initiatives. First, they attack her for her work on “Clinton's 1997 order banning import” of certain firearms. They accuse Kagan of having “bent the law.” But as Kopel and Halbrook acknowledge, the Bureau of Alcohol Tobaco and Firearms order on which Kagan worked was upheld by the U.S. Court for the D.C. Circuit. But Kopel and Halbrook fail to mention that two of the three judges on the D.C. Circuit panel that upheld the decision were Reagan appointees, including Douglas Ginsburg, who President Reagan briefly nominated for a position on the Supreme Court before withdrawing his name over allegations of marijuana use.

Kopel and Halbrook also attack her because a Clinton administration official stated that, based on a suggestion from Kagan, he asked two agencies if some executive action could be taken in the event that the Supreme Court declared part of the Brady Act unconstitutional. This doesn't sound very controversial. And it should be noted that, in a piece for Politico, former Bush administration aide Tevi Troy cautioned not to read any “policy bias” into Kagan's White House papers.

Finally, Kopel and Halbrook also falsely claim that Justice Sonia Sotomayor's testimony during her confirmation hearing that she understood “the individual right [to keep and bear arms] fully that the Supreme Court recognized” in District of Columbia v. Heller was inconsistent with her decision to dissent from a decision extending Heller to state and local laws. We've dealt with this falsehood before. Since the focus of Kopel's and Halbrook's testimony is Kagan, not Sotomayor, we'll just direct you to our previous response on that issue.