The court’s 2008 case of District of Columbia v. Heller is an example of the limits of the “it means what it says” approach to constitutional analysis. Regardless of your personal feelings on individual gun ownership, a candid reading of the Second Amendment reveals that the sparse 27 words of text are just not that clear. What does it mean to “keep and bear Arms”? What is a “well regulated Militia” and what does it have to do with “the right of the people”? And, seriously, what’s with all the commas? The justices had a crazy hard task in front of them when they set about parsing the amendment for the first time in decades, and so they did what justices do—they tore apart the text and examined every word. When that failed to clarify matters, they all turned to history in an attempt to decipher what these phrases meant at the time and what the drafters thought they were saying. They reread prior court cases and considered whether the reasoning of past justices made as much sense in this case. They thought a bit about how Americans use guns both then (mostly to hunt grizzlies, according to Justice Kennedy) and now (mostly to shoot one another, according to Justice Breyer). And in the end, they took 157 pages to explain to us that they completely disagreed, by a score of 5-4, about both what the Constitution says as well as what it means.
Elena Kagan needs to talk honestly about what Supreme Court justices really do.