Kim Askew, Chair of Standing Committee Mary Boies, Primary Reviewer

Sotomayor, Civil Rights and Guns

The right to bear arms is one civil right that must apply to the states. This week the Senate Judiciary Committee has an obligation to find out where Judge Sotomayor truly stands on this right. 
Over the next two weeks, one of the critical issues will be your civil rights on guns. Senators could benefit from context to understand the importance of this civil right to protect families, especially racial minorities. Given Judge Sotomayor's long record, her confirmation must be more than "transparent," it must be penetrating and the Senators must dig deep.
When slavery ended in America after the Civil War, no civil right was more important for black Americans than the right to keep and bear arms. We passed an amendment to the Constitution to make that possible.
Now the Supreme Court will decide this issue. And Sonia Sotomayor has already come down against this civil right, relying on a discredited precedent from a dark chapter in our nation's past.
The next big gun-rights case to go to the Supreme Court will be whether the right to bear arms applies to the states. When the Bill of Rights (including the Second Amendment) was ratified in 1791, it only applied to federal laws and the federal government.
But after the Civil War, Congress and the states passed the Fourteenth Amendment, empowering all Americans with those fundamental rights in the Constitution that had protected them against federal oppression. For example, most people know that the First Amendment rights of free speech, religious freedom and peaceful assembly are rights they have against their states. This is true only because of the Fourteenth Amendment.
History makes clear that our post-Civil War leaders considered no civil right more important in 1868, when they ratified the Fourteenth Amendment, than the Second Amendment right to keep and bear arms.
In the Southern slave states, it had become illegal for blacks -- whether slave or free -- to own firearms. Under the "Black Codes," people of color were defenseless against racial violence.
And the Congress that proposed the Fourteenth Amendment knew that this was the greatest need of black Americans. They needed to be able to protect themselves against criminals. But more than that, they needed to protect themselves against their state or local governments, which rarely protected them and were often the source of deadly danger facing these former slave families.
In Congress, as they crafted the Fourteenth Amendment, they referred over and over again to the right to bear arms for defending yourself and your family as an essential right of American citizens, which every American needed to be able to assert against his state or city. Many of their lives depended on it.
But shortly after the Fourteenth Amendment was passed, the Supreme Court held that the Second Amendment did not apply to the states, and did so twice again just a few years later. Judge Sotomayor relied on one of these cases when she said that people have no gun rights when it comes to state or city laws. Her supporters laud this opinion, saying that it proves she upholds precedent.
But not all precedents should be upheld. The cases that Judge Sotomayor relied on also state that our revered First Amendment doesn't apply to the states, either. Thankfully, the Supreme Court has long since rejected that idea. None of Judge Sotomayor's boosters seem willing to discuss the fact that these precedents she relied on denied free speech and religious liberty against cities and states.
Those precedents also came down during the same time as another infamous decision, Plessy v. Ferguson, which created the standard of "separate but equal" among the races. This terrible decision was precedent in our country for half a century, until the Supreme Court overruled it in Brown v. Board of Education. -- Clearly, sometimes precedent must be overruled.
Specifically, precedent should be overruled when doing so fulfills the original intentions of the Founding Fathers to make people free, as those intentions are found in the Constitution's text.
The Second Amendment deserves to be on equal footing with the First Amendment. The precedent Sonia Sotomayor followed stated that neither of these amendments applied to the states. Even if she were bound to follow it, she should have noted these facts and recommended that the Supreme Court overrule it. She did no such thing.
The right to bear arms is one civil right that must apply to the states. This week the Senate Judiciary Committee has an obligation to find out where Judge Sotomayor truly stands on this right. 
Ken Blackwell is a senior fellow with the Family Research Council and the American Civil Rights Union.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
Related Columns:
Gun Issue Heats Up for Sotomayor as NRA Appeals to Supreme Court
Second Amendment Freedoms Aided the Civil Rights Movement

Hatch Questions Sotomayor on Gun Rights
 

Naftali Bendavid reports on Sonia Sotomayor’s confirmation hearing.

Gun rights haven’t been an issue in recent Supreme Court confirmation battles because the Supreme Court hadn’t tackled a major Second Amendment case in decades. But that changed with the court’s recent decision in the Heller case, finding that the right to bear arms was an individual right and not a collective one. So the issue arose this morning in Judge Sonia Sotomayor’s confirmation hearing.

Sen. Orrin Hatch (R., Utah), a senior member and former chairman of the committee, questioned Sotomayor on a comment in one of her opinions that the right to gun ownership was “not fundamental” and that the Second Amendment applied to the federal government but not the states.

Sotomayor said the term “not fundamental” was a technical one, not a general comment on the importance of the right to bear arms. And the ruling that the Second Amendment did not apply to the states, she added, “was based on precedents and the holding that precedents did not apply to the states.”

Hatch persisted, in a courtly way, complaining that one of her opinions ruled that a government can restrict gun ownership as long as it has a “rational basis” for doing so. “As a result of this very permissive standard, and it is permissive, doesn’t your decision…mean that virtually any city or state weapons ban would be permissible?”

Sotomayor responded that the case dealt with the city’s prohibition on owning nunchuks, two sticks connected with rawhide, rope or a chain that can be deadly. “To the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession, in the way that New York did, the question for our court was…did the state have a rational basis for prohibiting the possession of this kind of instrument?” she said. “So it was a very narrow issue.”

Much of the exchange between Hatch and Sotomayor was technical, focusing on the “doctrine of incorporation” and when certain rights bind the states as well as the federal government. But the gun issue is politically potent, and although Sotomayor has issued few rulings on gun issues, Republicans have seen it as one of the few issues that could affect the votes of conservative Democrats from states where guns are popular.

Second Amendment is still in the Constitution

By Wayne LaPierre | Wednesday, July 15, 2009

   
Other than declaring war, neither house of Congress has a more solemn responsibility than the Senate's role in confirming justices to the U.S. Supreme Court. As the Senate considers the nomination of Judge Sonia Sotomayor, Americans are watching to see if this nominee would lend her support to those who've declared war on the rights of America's 80 million gun owners.

After the first day of confirmation hearings, gun owners have good reason to worry. Those of us who respect the Second Amendment are concerned about the case of Maloney v. Cuomo, which reviewed whether this freedom applies to all law-abiding Americans or only to residents of Washington. If it's incorporated, the Second Amendment prevents the states from disarming honest Americans. If it's not, the Second Amendment is meaningless outside of our nation's capital.

Judge Sotomayor was on the U.S. 2nd Circuit panel that decided the Maloney case in a short, unsigned and clearly incorrect opinion. The fact that the Maloney panel misread precedent in order to avoid doing the 14th Amendment "incorporation" analysis required by the Supreme Court is troubling to say the least.

Equally troubling is the fact that Judge Sotomayor said she wasn't even familiar with the Supreme Court's modern incorporation cases. There are few issues more important for a judge to understand than whether the fundamental guarantees in the Bill of Rights apply to all Americans. Our First Amendment right to free speech applies to all Americans. Our Fourth Amendment protection from illegal search and seizure applies to all Americans. It's hard to believe that a potential Supreme Court justice wouldn't be familiar with those cases.

Despite that judicial amnesia, Judge Sotomayor co-authored an opinion -- in January -- holding that the Second Amendment does not apply to the states. So that leaves two options: Either she failed to follow the Supreme Court's direction in Heller that judges are required to analyze the modern incorporation cases or she actually did review those cases but came to an incorrect conclusion. Neither option gives gun owners much confidence in her view of the Second Amendment.

It is only by ignoring history that any court can say -- as the 2nd and 7th U.S. Circuits did -- that the Second Amendment doesn't apply to the states. The one part of the Bill of Rights that Congress clearly intended to apply to all Americans was the Second Amendment. History is clear on this point.

In his speech introducing the proposed amendment, for example, Sen. Jacob M. Howard listed the freedoms guaranteed by the Bill of Rights "such as ... the right to keep and bear arms," and said the proposed amendment would "restrain the power of the states and compel them at all times to respect these great fundamental guarantees."

Under questioning, Judge Sotomayor was also evasive on the question of whether the Second Amendment guarantees a fundamental right. In fact, her previous decision in United States v. Sanchez-Villar held that it was not. Let me be clear on this -- any judge who does not believe the Second Amendment guarantees a fundamental right is unacceptable to gun owners.

Judges often try to hide behind precedent in order to avoid answering fundamental constitutional questions during confirmation hearings. But history has shown that, in many cases, precedent was wrong and needed to be changed.

It was wrong when precedent prevented a black's vote from counting the same as a white man's. And it was wrong when precedent prevented blacks from owning firearms. It was equally wrong when precedent prevented women from voting. It took judges with courage and conviction to stand up and rule against this type of ill-conceived precedent.

This nation was founded on a set of fundamental freedoms. Our Constitution does not give us those freedoms -- it guarantees and protects them. The right to defend ourselves and our loved ones is one of those. The individual right to keep and bear arms is another. These truths are what define us as Americans.

The Supreme Court is compelled to respect the Second and 14th Amendments and to interpret and apply them correctly. The cases in which Judge Sotomayor and her colleagues have mishandled these issues raise serious questions about her fitness to serve on the highest court in the land.

Wayne LaPierre is executive vice president of the National Rifle Association of America.

EDITORIAL: Sotomayor and gun rights

The judge dodges questions about the Second Amendment

By | Wednesday, July 15, 2009

• Supreme Court nominee Sonia Sotomayor refused yesterday to say whether or not she believes the Constitution guarantees that Americans can keep and bear arms.

The Second Amendment -- which enumerates your individual right to own, store and carry guns -- is the one that typically troubles liberal nominees most. A conservative or moderate will shrug when asked about it, just as if he had been asked about the First Amendment's right of the people to "peaceably assemble." But a modern liberal will need a strategy to slide past this part of the Constitution.

Yesterday, we saw Judge Sotomayor's strategy. One of her godchildren is a member of the National Rifle Association, she said. And, get this, she actually knows people who hunt. But these are evasions. Either a civil right to gun ownership exists or it does not.

While she also sought to assure senators that she would keep an "open mind" concerning any Second Amendment case, her past rulings tell a different story. As the NRA's Wayne LaPierre explains on the facing page, she twice wrote that the right to bear arms is not a "fundamental right."

Furthermore, in District of Columbia v. Heller, the U.S. Supreme Court found that the Constitution guarantees an individual right to own and carry guns. The next legal question: Does the Heller decision stop not just the federal government, but the individual states as well from infringing that essential right to armed self-defense?

In Maloney v. Cuomo, Judge Sotomayor ruled that the decision did not apply to the states, citing some 19th-century cases. But she completely ignored the fact that the question in those 19th-century cases involved different constitutional clauses than the ones at issue now. Without getting lost in legal minutia, suffice it to say that she completely evaded the issue at hand.

Supposedly pro-gun Democratic senators might feel the heat if she does not more explicitly support the essential, individual right to own guns and they vote to confirm her anyway.

WASHINGTON – President Obama said that comments by Supreme Court nominee Sonia Sotomayor in a 2004 speech in which she called for the “castration of all white males until they are no longer dominant,” have been “taken out of context” by right wing ideologues.

In the speech delivered to the San Juan chapter of NOW, Sotomayor said, “I want to be perfectly clear about this next comment so that there is no mistaking my words to mean something other than what they plainly say: the time has come to end white male oppression by castrating every white male until they are no longer dominant in Western culture. That means forcible removal of their testicles. I realize the brutality of  my comment, and I don’t know how to say it more clearly.”

It was revealed that Sotomayor used precisely the same language in seven other speeches.

White House spokesman Robert Gibbs agreed with President Obama that the statement “has been taken out of context,” and added that Sotomayor “certainly did not mean” that white males should be castrated.  “Judge Sotomayor was simply saying that there should be room at the American table for diverse cultures, that’s all. It is astounding that people are reading ‘castration’ into it.”

President Obama told MSNBC:  ”Look, when Judge Sotomayor appears before the Senate committee, all this nonsense being spewed out by ideologues will be revealed for what it is.”