Sotomayor Elusive on Second Amendment
Huh.
On guns, Sotomayor was grilled by Republicans about an appellate ruling she participated in that found that the right to bear arms in the Second Amendment applies only to federal and not state regulations, based on past precedents.
But she took issue with any suggestions that her ruling revealed hostility or indifference to gun rights. When Alabama Republican Jeff Sessions suggested she recuse herself from any Supreme Court cases on the question because her mind was made up, Sotomayor objected.
“I have not made up my mind,” Sotomayor said.
“I don’t hold a view,” she said, saying her ruling was based on her reading of precedent only, and as a member of the high court, she would be in a position to give fresh consideration to the constitutional issues in the case.
Sessions called the gun question a “really big issue,” saying that if Sotomayor’s interpretation was correct, then Americans enjoyed no protection under the Bill of Rights from gun restrictions and prohibitions passed by states and localities.
She should be required to be under a lie detector while she is being questioned. I’m sure this response would have pegged the meter on the LIE side!
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 0741 hrs
<b>Any<//b> supreme court nominee will be elusive on any hypotheical question on a constitutional issue, especially if its an issue they might actually have to rule on.
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 0742 hrs
I had to laugh when she said she had friends who hunt. What’s that got to do with the Right to Keep and Bear arms? The Founders wrote that in so the people could protect themselves from Government.
Posted by Billiam on July 16, 2009 at 0747 hrs
I hate to say it, but she does have a point. See Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
Writing for a unanimous court, Chief Justice John Marshall held “[t]hese [first ten] amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.” Barron v. Baltimore, 32 U.S. 243, 250.
The case was particularly important in terms of American government because it stated that the freedoms guaranteed by the Bill of Rights did not restrict the state governments. Later Supreme Court rulings would reaffirm this ruling of Barron, most notably United States v. Cruikshank, 92 U.S. 542 (1875). However, beginning in the early 20th century, the Supreme Court has used the Due Process Clause of the Fourteenth Amendment to apply most of the Bill of Rights to the states through the process and doctrine of selective incorporation. Therefore, as to most, but not all, provisions of the Bill of Rights, Barron and its progeny have been circumvented, if not actually overruled.
(quotes are from http://en.wikipedia.org/wiki/Barron_v._Baltimore )
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 0800 hrs
Mildly inappropriate for Sessions to ask a judicial candidate to express an opinion on a matter that will almost certainly be on the SCOTUS docket either this term or next term. And in the case at hand she deferred to precedent which, last I checked, is the kind of judicial restraint that conservatives like. Except, of course, when it leads to an undesirable outcome. Then, a little activism is okay. Because both sides love judicial activism when it gets them what they want.
Posted by Recess Supervisor on July 16, 2009 at 0816 hrs
But, RS, she followed up with this:
and as a member of the high court, she would be in a position to give fresh consideration to the constitutional issues in the case.
Sounds contrarian to me. But this is emblematic of how she has dodged, ducked, dipped, dived, and dodged on the issue of precedent. She has consistently stated how she defers to settled law/precedent but yet follows up with her committment and long record of looking at things like a wise latina with the richness of her experiences.
If she defers to precedent, then why does she need to discuss the richness of her experiences and lend her wisdom as a latina?
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 0846 hrs
She buthered the 2A issue, but it was largely becasue she butchered the whole incorporation doctrine, which is ConLaw 101.
Posted by Jed on July 16, 2009 at 0901 hrs
elovrich - she has no point. Relying on case law that predates the doctrine of incorporation to determine whether or not something is incorporated is pretty bad judging. She was not bound by precedent on that issue. Instead, the issue was one of first impression for her court and instead of taking a stab at it she cited took cover under irrelevant case law.
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 0918 hrs
I find it more disturbing that she wouldn’t even concede that she personally believes in any right for an individual to defend themselves if attacked. Coburn asked a very straight up question, laid out a way for her to get out of the question, and she still couldn’t concede that there was any fundamental (not in legal definition, which she doesn’t understand anyway) right for an individual to defend themselves.
I also think there was a more interesting exchange on potential gun cases with Sen. Kyl two days ago. He asked her if she would recuse herself if Maloney came up to SCOTUS as a test of incorporation. She said she would because she’d have to. However, when he asked her if the Court decided to take Maloney, but merge it with NRA v. Chicago, she indicated she may not recuse herself. Then they asked if NRA or Nordyke is accepted purely on the question of incorporation, she again indicated she wouldn’t recuse herself. I’d be curious to know what the precedent on this since she very specifically ruled on the matter in Maloney.
For any lawyers here, do you think there’s a chance that a minor controversy could be stirred in legal circles on the recusal matter so that she would feel peer pressure to recuse herself from NRA or Nordyke? I imagine that as a “historic” justice, she wouldn’t want her first term to be remembered for a controversy on an ethics issue.
Posted by Bitter on July 16, 2009 at 0956 hrs
Joe;
Granted Barron v. Mayor of Baltimore predates incorporation. but US v. Cruikshank follows well after the 14th Amendment (although both it and Presser v Illinois precede the general acceptance of incorporation.) I am not arguing that Barron, Cruikshank, Presser et al., are good law. Nor am I arguing that the 2nd Amendment shouldn’t be incorporated. I am simply making the observation that Sotomayor made a valid statement that precedence is on the side of non-incorporation in this instance. The fact that it is a split circuit issue only confounds the situation.
Personally I am with Hugo Black and think mechanical incorporation was the way to go.
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 1037 hrs
Everyone has an opinion on abortion and gun rights. It is not believable that she “hasn’t formed an opinion”. She has one - she just doesn’t want everyone else to know she believes in killing babies and outlawing guns.
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 1203 hrs
an appellate ruling she participated in that found that the right to bear arms in the Second Amendment applies only to federal and not state regulations
Apparently she believes, as a Latina woman, she has arrived at a better decision that bunch of old White guys that wrote and ratified the constitution ...
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 1340 hrs
TD;
Actually, she is agreeing with a bunch of old white guys who decided that the Bill of Rights ONLY applied to the federal government and not to the states. At least until the 14th Amendment came along. Then it was a question of whether to incoporate all of the first 8 Amendments ( 9 and 10 are special cases) all at once or only as they came up before the court.
See the cases I cite above for more details.
As I said, I may not agree with the decision she has come to, but she HAS followed the precedents that the SCOTUS has laid out on this. And as has been said, it is not intellectually honest to only call someone an activist when they disagree with you…
Posted by .(JavaScript must be enabled to view this email address) on July 16, 2009 at 1510 hrs
I’ll vote with Bill here.
No matter WHAT she believes, she’s going to hide it until she’s confirmed.
Posted by dad29 on July 16, 2009 at 2005 hrs
Wisconsin’s Senator, Russ Feingold, strongly believes that the process of selective incorporation should be extended to include the Bill of Rights provisions on gun ownership.
He believes that the 14th. Amendment’s guarantee of due process and equal protection extends to the 2nd. Amendment, and the states cannot pass laws that improperly infringe on 2nd. Amendment rights.
He understands the 2nd. Amendment means what it says, and that the 14th. Amendment incorporates it and extends it to actions by State government as well.
Posted by .(JavaScript must be enabled to view this email address) on July 17, 2009 at 0955 hrs
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