Supreme Court nomineee Judge Sonia Sotomayor speaks during the third day of her confirmation hearings on Capitol Hill in Washington Wednesday.
(Jonathan Ernst/Reuters)Photos (1 of 1)
Sotomayor dodges gun-rights questions
The Supreme Court nominee is choosing her words carefully about the Second Amendment during confirmation hearings.
By Warren Richey | Staff writer/ July 15, 2009 edition
For the second day, Supreme Court nominee Sonia Sotomayor dodged questions about whether she believes the Second Amendment guarantees a fundamental right to keep and bear arms.
Judge Sotomayor told senators Wednesday that the US Supreme Court had ruled in 2008 that there is an individual right to guns and other weapons. But she stopped short of revealing her thoughts on whether that right was worthy of the kind of judicial protection afforded fundamental rights like the First and Fourth Amendments.
At one point Sen. Tom Coburn (R) of Oklahoma asked Sotomayor whether he had a right to self defense.
“That is an abstract question with no meaning to me,” Sotomayor responded.
Senator Coburn persisted. “That’s what the American people want to know. Is it okay to defend yourself in your home if you are under attack?”
Questions about Sotomayor’s views on the Second Amendment stem from her involvement in a New York appeals court decision in January that sharply restricted gun rights.
The three-judge panel of which she was a part said the Supreme Court’s 2008 decision applies only to the federal government. The Sotomayor panel ruled that New York and other states were free to regulate or ban weapons if they have a rational basis to do so.
The questions are being asked in an attempt to gain insight into how Sotomayor may vote as a Supreme Court justice.
The question isn’t just hypothetical. Her panel’s decision is one of three lower court opinions currently under appeal to the Supreme Court. If the high court agrees to hear the cases, they could be argued as early as next term.
All three cases raise the issue of whether the right to keep and bear arms is a fundamental right that may not be infringed by state governments except under sharply limited circumstances.
In its 2008 decision, the Supreme Court left that question unanswered. But in a footnote, Justice Antonin Scalia gave lower court judges – such as Sotomayor – an important hint about how the five justices in the majority (all conservatives) believe that issue must be resolved.
The footnote suggests that the legal rationale limiting Second Amendment rights – a series of century-old high court decisions dating to 1875, 1886, and 1894 – is no longer good law.
The note says that the high court’s more recent cases are based on a different line of analysis, which embraces a significantly broader view in applying the protections of the Bill of Rights to the states.
Despite this footnote, Sotomayor’s panel relied on the 1886 precedent, adopting a sharply limited view of the Second Amendment’s protections for gun owners.
Sen. Orrin Hatch (R) of Utah asked Sotomayor about this Tuesday. “I believe you’ve applied the wrong line of cases,” he told the nominee.
Sotomayor has not offered a detailed explanation on why she relied on an 1886 precedent rather than following Justice Scalia’s hint.
Sotomayor has told the senators that when the recent gun-rights case arrived at her court, she and her colleagues read the Scalia footnote and concluded that the Supreme Court had not “explicitly rejected” the 1886 precedent supporting a narrow view of the Second Amendment. So the appeals court used it to decide the case, she said.
Earlier, Sotomayor had told Judiciary Committee Chairman Patrick Leahy of Vermont that she had accepted and applied the high court’s 2008 gun rights decision in her own decision.
“Completely, sir,” she said. “I accepted and applied established Supreme Court precedent.”
She added that the Supreme Court had decided a different issue than her court decided, but she stressed that she’d been faithful to existing Supreme Court precedent.
Senator Leahy followed up with a basic question: “Would you have an open mind on the Supreme Court in evaluating whether Second Amendment rights should be considered fundamental rights and thus applicable to the states?”
“Absolutely,” she said.
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Comments
2. Barbara A. Hood | 07.16.09
Having just attended a family reunion in Arkansas and listened to the boneheaded rhetoric regarding more and bigger guns in the family arsenal, I could only marvel that the only person present who had used a gun and understood what it truly means to shoot a another person was my 76 year-old husband, who at age 19, fought in the Korean War. He does not view guns and right to “self defense” in the simplistic terms expressed by my nephews and our Congressional representatives. I surmise that were their homes or offices invaded by criminals, they would call the police and/or stand there dumbfounded and scared like most of us.
For the record I am an American voter and I don’t believe the Second Amendment guarantees the right for every man, woman, and child to have firearms comparable to the US military.
Barbara Hood
Louisville, KY
3. TechiePatriot | 07.16.09
She is a GUN GRABBER plain and simple - she won’t tell us what her stance is on the 2nd Amendement because she knows would would crucify her over her anti-2nd amendment position. She has time and time again been against the 2nd amendment.
Try to come and take our guns Sotomayor! Just try it!
4. Tiffany Trouble | 07.16.09
The second amendment should not be up for debate. It’s only one sentence long — how hard is that to figure out? Bill of Rights, Article II: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Let me remind you that “militia” can be translated as “military.” “The people,” however, can only be translated as “the people.” It certainly cannot mean “some people,” or “people in the police force or military.” The precise reason we need to be able to keep and carry guns, in all the same levels of dangerousness as those whose jobs require it, is because people whose jobs require it are necessary to protecting our freedoms. Each is dependent on the other if we expect to remain truly free. To say that any right, especially one that our founding fathers decided was important enough to be included in the very second article of the Bill of Rights, needs to be “restricted” is absolutely unacceptable.
5. Siggy | 07.16.09
Second Amendment:A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
American citizens are the militia to be called upon by neighbors and the governemnt in case of invasion OR in case said government gets out of hand,”That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government” Declaration of Independence.
How a candidate for the Supreme Court seems to be willingly ignorant of these basic principles is a shame.
Good luck folks.
6. waldo5 | 07.16.09
A Supreme Court nominee is not going to reveal how he/she will rule on future cases. That would be admitting prejudice on her/his part. For Senators to ask this type of questions is unfair and a waste of time because the nominees are prepared not reveal how they will rule since each case is different and must be weighed according to the particular facts of the case.
The senator from Oklahoma asked a personal question that was inappropriate and none of his business. Apparently he thought such a question might reveal the nominee’s personal feelings—which might affect court decisions.
Supreme Court is way overdue in having Latin representation; such a highly-qualified judge as Sotomayor should not have to submit to certain close to indignities/accusations/ which some senators have indulged in during this difficult trial for this way-over qualified lady.
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1. BillS | 07.16.09
I agree with the senators who are saying,she’s not answering these questions directly. I believe she also already answered no to the question,whether the 2nd Amendment should be considered a fundamental right,applicable to the states,in her past ruling in New York. I believe she will not change her opinion,while on the Supreme Court. And also not answering a simple basic question asked by Sen Coburn,whether he has the right of self defense. Regardless,that should be a simple yes,or no. In my opinion,she means no. Finally,her being highly endorsed by the “Brady Campaign” speaks volumes where she stands on 2nd Amendment rights,and guns in general.