June 4, 2009
By Brian Darling
President Obama's nominee to the U.S. Supreme Court, 2nd Circuit
Judge Sonia Sotomayor, owes the American people an explanation on
her view of the Second Amendment.
Most nominees come before the Senate Judiciary Committee and
refuse to answer questions about hot-button issues such as
abortion, gay marriage, gun rights and the death penalty. The
nominee usually says something about not wanting to prejudge future
decisions that may come before the High Court.
But Sotomayor shouldn't be allowed to skirt the Second Amendment
issue, because she cosigned a decision in a case earlier this year
that exhibited a dismissive and hostile view of the right to bear
arms. If Sotomayor's view becomes the view of the Supreme Court,
your right to own the weapon of your choice in your home may be
Because of this decision, Sotomayor may have a problem getting
confirmed by the Senate. If the Sotomayor nomination becomes a
referendum on the Second Amendment, it's unlikely she'll be
After all, during the past few months the Senate has voted three
times on pro-gun legislation. Each of these legislative amendments
passed with overwhelming bipartisan margins. Clearly, the view that
the Second Amendment protects an individual's right to own and
carry a weapon is held by more Senators than the view that the
Second Amendment is an empty phrase.
Back in January, the 2nd Circuit issued a decision in Maloney
v. Cuomo that upheld New York's complete ban on the possession
of a chuka stick (or nunchukas). James Maloney had been arrested at
his home in 2000 for possessing the weapon. He argued that his
Second Amendment rights were violated by the state of New York,
because he had arms in his home (the nunchukas) for the protection
of his family.
The decision, coauthored by Sotomayor, was dismissive of
Maloney's 2nd Amendment claims. Sotomayor and two other justices
held that the "statute neither interferes with a fundamental right
or singles out a suspect classification." They held that a state
legislature has the right to pass a complete ban on weapons in the
home, because the Second Amendment does not apply to the
David Kopel of the Cato Institute, a Second Amendment scholar,
argues that the position supported by Sotomayor was "oddly evasive"
and gave "short shrift to Maloney's argument." Kopel told Human
Events, "The Sotomayor opinion does not even acknowledge the
legally serious argument that was relevant to this case: that under
modern Supreme Court doctrine, the Due Process clause of 14th
Amendment has made most provisions of the Bill of Rights applicable
to the states, and the Supreme Court's standards for which portions
of the Bill of Rights are 'incorporated' by the 14th Amendment
strongly indicate that the Second Amendment is incorporated." In
short, Sotomayor doesn't seem to have given any meaningful
constitutional weight to the Second Amendment rights of all
Americans, nor the natural right of people to protect
This nominee's interpretation of the Second Amendment is of
particular importance in the confirmation battle because of the
Senate's track record on gun issues. In February the Senate voted
62-36 for an Amendment offered by Sen. John Ensign (R-NV) to
restore the Second Amendment rights to District of Columbia
residents. In the wake of the Supreme Court's striking down the
District of Columbia's oppressive gun-control laws, D.C. v.
Heller, and holding that the Second Amendment is an individual
right, the Senate passed an Amendment to restore the gun rights of
the residents of D.C.
The D.C. gun rights vote was a preview of two other Senate
votes. The Senate voted on guns again in April by a 63-35 margin
for an Amendment by Sen. Roger Wicker (R-MS) to ensure that
law-abiding Amtrak passengers are allowed to securely transport
firearms in their checked baggage. This Amendment was necessary to
remove an Amtrak ban on guns in checked luggage.
The third Senate vote on gun rights was May 12th when the Senate
voted 67-29 for an Amendment by Sen. Tom Coburn (R-OK). This
Amendment, known as the "Guns in Parks" language, restored the gun
rights of law abiding Americans -- subject to state law
restrictions -- in our nation's national parks.
Sixteen Democrats voted for all three gun amendments, including
Max Baucus and Jon Tester of Montana, Evan Bayh of Indiana, Mark
Begich of Alaska, Michael Bennet and Mark Udall of Colorado, Robert
Casey and Arlen Specter of Pennsylvania, Byron Dorgan of North
Dakota, Russ Feingold of Wisconsin, Kay Hagan of North Carolina,
Mary Landrieu of Louisiana, Blanch Lincoln of Arkansas, Ben Nelson
of Nebraska, Harry Reid of Nevada, and Jim Webb of Virginia. All of
these Democrats will be on the hot seat if the Sotomayor nomination
becomes a referendum on whether the Second Amendment is a
fundamental right of all Americans.
If Sonia Sotomayor refuses to explain her rational for holding
that Maloney's fundamental right to own a weapon for the protection
of his family was not infringed by the state of New York, many
Democrats who would usually give deference to the President's
choice of a Supreme Court nominee may instead be overcome by
concerns about confirming a justice who seems prone to ignore a
freedom that Americans hold dear.
Brian Darling is director of U.S.
Senate Relations at The Heritage Foundation
First Appeared in Human Events
President Obama's nominee to the U.S. Supreme Court, 2nd Circuit Judge Sonia Sotomayor, owes the American people an explanation on her view of the Second Amendment.
Senior Fellow for Government Studies
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