May 27, 2009 5:40 PM
- Text
Gun Rights Groups Are Wary Of Sotomayor
5039543
Second Amendment advocates are responding warily to President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.
Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms, said on Wednesday that "Judge Sotomayor's position on the Second Amendment is a clear signal that Mr. Obama's claim that he supports gun rights is nothing but lip service."
Dave Kopel of the free-market Independence Institute predicts that "Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms." And Ken Blackwell of the Family Research Council believes her nomination amounts to "a declaration of war against America's gun owners."
The difficulty in evaluating Sotomayor's views on the Second Amendment right to keep and bear arms is the lack of definitive statements. No old law review articles advocating a Scalia-esque originalist approach have been unearthed; no speeches to the Brady Campaign calling for nationwide gun confiscation have surfaced.
A handful of Sotomayor's Second Circuit decisions, however, have.
In a 2004 criminal case, U.S. v. Sanchez-Villar, a three-judge panel that included Sotomayor wrote that "the right to possess a gun is clearly not a fundamental right."
Another case involved a fellow named James Maloney who was arrested in Port Washington, N.Y. for possessing a nunchaku -- typically sticks connected by rope or chain -- in his home. Maloney claimed that the Second Amendment rendered the state law banning nunchakus unconstitutional.
A three-judge panel including Sotomayor unanimously rejected his claim in January 2009, ruling that the Second Amendment "imposes a limitation on only federal, not state, legislative efforts." All members of the panel agreed with this sentiment, but because the opinion was unsigned, it's not clear who wrote it.
The trouble with that line of reasoning is that it relies on a 1886 case called Presser v. Illinois, which did in fact say the Second Amendment "is a limitation only upon the power of Congress and the national government, and not upon that of the state." But that was before a long line of subsequent U.S. Supreme Court rulings that applied the Bill of Rights to state governments; the concept is known as the "incorporation doctrine."
(And, besides, even in Presser, the Supreme Court went out of its way to note "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms.")
That has left gun rights advocates feeling a bit like the decision from Sotomayor's panel this year cherry-picked cases to reach a desired result -- instead of trying to interpret the law fairly. "The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue," Kopel says.
By contrast, the Ninth Circuit, by some counts the most liberal in the nation, ruled in April that the Second Amendment does apply to state laws. Meanwhile, Maloney, the defendant in the New York case, is appealing his loss to the U.S. Supreme Court, and the Seventh Circuit heard oral arguments this week in a related case.
Something with a name like "incorporation doctrine" may sound like an obscure topic only a law professor could love, but it's really not. These disputes will decide whether or not states and municipalities can legally disarm their residents, or whether the Second Amendment right the Supreme Court recognized last year in D.C. v. Heller applies to state and federal laws equally.
In some sense, if Sotomayor holds the same views as the man she's been selected to succeed -- retiring justice David Souter -- not much will change in terms of Second Amendment jurisprudence. Souter disagreed with Heller's 5-4 majority opinion, signing on to a dissent that said: "The majority's decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems."
But based on Candidate Obama's remarks last year, gun owners may have hoped for more. Mr. Obama's campaign platform said he "believes the Second Amendment creates an individual right, and he respects the constitutional rights of Americans to bear arms."
Souter rejected the idea of the Second Amendment protecting an individual right; in her 2004 joint opinion, so did Sotomayor. During confirmation hearings, expect pro-gun senators to ask the judge if she agrees more with her predecessor or the stated views of the president who nominated her.
Second Amendment advocates are responding warily to President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.
Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms, said on Wednesday that "Judge Sotomayor's position on the Second Amendment is a clear signal that Mr. Obama's claim that he supports gun rights is nothing but lip service."
Dave Kopel of the free-market Independence Institute predicts that "Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms." And Ken Blackwell of the Family Research Council believes her nomination amounts to "a declaration of war against America's gun owners."
The difficulty in evaluating Sotomayor's views on the Second Amendment right to keep and bear arms is the lack of definitive statements. No old law review articles advocating a Scalia-esque originalist approach have been unearthed; no speeches to the Brady Campaign calling for nationwide gun confiscation have surfaced.
A handful of Sotomayor's Second Circuit decisions, however, have.
In a 2004 criminal case, U.S. v. Sanchez-Villar, a three-judge panel that included Sotomayor wrote that "the right to possess a gun is clearly not a fundamental right."
Another case involved a fellow named James Maloney who was arrested in Port Washington, N.Y. for possessing a nunchaku -- typically sticks connected by rope or chain -- in his home. Maloney claimed that the Second Amendment rendered the state law banning nunchakus unconstitutional.
A three-judge panel including Sotomayor unanimously rejected his claim in January 2009, ruling that the Second Amendment "imposes a limitation on only federal, not state, legislative efforts." All members of the panel agreed with this sentiment, but because the opinion was unsigned, it's not clear who wrote it.
The trouble with that line of reasoning is that it relies on a 1886 case called Presser v. Illinois, which did in fact say the Second Amendment "is a limitation only upon the power of Congress and the national government, and not upon that of the state." But that was before a long line of subsequent U.S. Supreme Court rulings that applied the Bill of Rights to state governments; the concept is known as the "incorporation doctrine."
(And, besides, even in Presser, the Supreme Court went out of its way to note "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms.")
That has left gun rights advocates feeling a bit like the decision from Sotomayor's panel this year cherry-picked cases to reach a desired result -- instead of trying to interpret the law fairly. "The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue," Kopel says.
By contrast, the Ninth Circuit, by some counts the most liberal in the nation, ruled in April that the Second Amendment does apply to state laws. Meanwhile, Maloney, the defendant in the New York case, is appealing his loss to the U.S. Supreme Court, and the Seventh Circuit heard oral arguments this week in a related case.
Something with a name like "incorporation doctrine" may sound like an obscure topic only a law professor could love, but it's really not. These disputes will decide whether or not states and municipalities can legally disarm their residents, or whether the Second Amendment right the Supreme Court recognized last year in D.C. v. Heller applies to state and federal laws equally.
In some sense, if Sotomayor holds the same views as the man she's been selected to succeed -- retiring justice David Souter -- not much will change in terms of Second Amendment jurisprudence. Souter disagreed with Heller's 5-4 majority opinion, signing on to a dissent that said: "The majority's decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems."
But based on Candidate Obama's remarks last year, gun owners may have hoped for more. Mr. Obama's campaign platform said he "believes the Second Amendment creates an individual right, and he respects the constitutional rights of Americans to bear arms."
Souter rejected the idea of the Second Amendment protecting an individual right; in her 2004 joint opinion, so did Sotomayor. During confirmation hearings, expect pro-gun senators to ask the judge if she agrees more with her predecessor or the stated views of the president who nominated her.
Sonia Sotomayor: More Coverage And Analysis
- Liberals Concerned About Sotomayor's Abortion Views
- W.H. Urged To Address "Racist" Charge
- Who Could Lose In A Confirmation Vote?
- Rigorous Questioning Hasn't Fazed Nominee
- Battle Lines Form Over High Court Pick
- Limbaugh, Gingrich: Sotomayor Is "Racist"
- Ad Supporting Sotomayor Released
- Declan McCullagh: Gun Rights Groups Are Wary Of Sotomayor
- Former Clerk: Sotomayor's A "Legal Purist"
- Sotomayor Unites Disparate Hispanic Groups
- WhiteHouse.gov Transparency? Not In Supreme Court Pick
- Declan McCullagh: Nomination Renews Abortion Debate
- Jeff Greenfield: A Political Matter
- Mark Knoller: How Obama Picked Sotomayor
- Steve Chaggaris: Obama Pick Leaves GOP In Difficult Spot
- Obama Taps Sonia Sotomayor For High Court
- Sonio Sotomayor's Biography
- Early GOP Reaction
- Full Text: Obama And Sotomayor's Comments
- Do Judges "Make Policy"?
- Sotomayor - A Three-Part Harmony
- The First Day Of The Rest Of Her Life
- When Worlds Collide - Prop 8 and Sotomayor
- More CourtWatch
- Obama And Sotomayor
- Sotomayor A Hometown Hero
- Will She Get The Job?
- Sotomayor In Depth
- Analysis: Bob Schieffer | Wyatt Andrews | Andrew Cohen | John Dickerson
- Photo Essay: Sonia Sotomayor
- Timeline Of Sotomayor's Life
Stories:
Andrew Cohen's CourtWatch Blog
Video:
Features
-
Declan McCullagh is the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Follow on Twitter »
Popular Now in Politics
- Eastwood: No political spin to my Chrysler ad
- Santorum sweeps Missouri, Minnesota, Colorado
- Clint Eastwood gives America a pep talk
- Contraception issue heats up as Santorum gains
- After Tues. sweep, Santorum seeks to gain speed
- Obama campaign blurs the line with super PAC
- GOP contests under way in Minn., Mo. & Colo.
- Fallon vs. Obama in fitness challenge
- Romney: Komen shouldn't fund Planned Parenthood
- Romney ties Obama to Carter
- Romney, Gingrich blast Prop 8 ruling
- Republican congressman falls for Onion article
- Obama campaign throws support to Obama super PAC
- What Does 'GOP' Stand For?
- Callista Gingrich: The quiet wife
- Hoekstra defends racially-charged Super Bowl ad
- Romney attacks Obama over "religious liberty"
Latest CBS News Headlines
on Facebook
on CBS News
- Report: Oversight of tribal contracts lacking
- Charlie Rose, Lara Logan on "Person to Person"
- AP Top Financial News At 7 p.m. EST
- White House aide: Syria's Assad "has to go"
on Facebook
- Calif. surfer runs fastest-growing camera company
- Americans getting too much sodium, but not from salty snacks
- Mo. teen gets life in prison for murder of 9-year-old girl
on CBS News
