President Obama's first nominee to the high court did say that she believed Americans do not currently enjoy a fundamental right to bear arms, which echoes her two previous rulings on the topic as an appeals court judge.
Existing Supreme Court decisions indicate the Second Amendment only limits "the actions the federal government could take with respect to the possession of firearms" and can't be used to strike down broad state laws, Sotomayor told the Senate Judiciary Committee on Wednesday.
Last year, the U.S. Supreme Court ruled that the Second Amendment protects an individual right from overreaching federal laws (and in federal enclaves like the District of Columbia). The case is called D.C. v. Heller.
But the justices chose not to rule on the broader question of whether the Second Amendment's guarantee of the right to keep and bear arms applies to state laws. Attorneys in two cases raising that question -- including an appeal of Sotomayor's January 2009 decision -- have petitioned for Supreme Court review in the last few weeks, and another petition is likely by the end of the summer.
Because Sotomayor has not clarified her position on gun rights, and has declined repeated invitations to do so during this week's Senate hearing, advocacy groups have turned to her written opinions and the president's own record on firearm regulation. (This parallels the abortion question: While Sotomayor parried those questions on Wednesday, the White House had previously reassured liberal groups that she would be a staunch pro-choice vote on the court.)
The results were predictable. The Brady Campaign on Tuesday formally endorsed Sotomayor, saying her opinions show respect "for precedent and for the considered judgments of legislative bodies in protecting communities from gun violence."
And Wayne LaPierre, the National Rifle Association's executive vice president, wrote after Tuesday's hearing that: "The Supreme Court is compelled to respect the Second and Fourteenth 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."
So far, the NRA has not formally opposed Sotomayor's nomination, even though past president Sandy Froman has called on NRA members to do so, and other gun rights groups including the Second Amendment Foundation have.
If the NRA chooses to take that step, it could cost Sotomayor some Senate votes, especially from senators in more rural states. (One aspect of this week's hearing worth noting is that liberal Democrats like Patrick Leahy and Russ Feingold have taken pains to stress their support for gun rights.)
Then again, losing a few votes isn't the same as losing the nomination. The Sotomayor hearing continues on Thursday morning at 9:30 a.m. ET with approximately 30 more witnesses, including ex-NRA president Froman, gun rights advocate David Kopel, and Ilya Somin, an assistant professor of law at George Mason University who has written critically about firearm restrictions in the past.
Addendum: To avoid revealing her own beliefs, Judge Sotomayor has resorted to lectures that seem straight out of law school, at the cost of clarity. Read on for excerpts from her exchange on Wednesday with Sen. Tom Coburn, a Republican from Oklahoma who is also a medical doctor.
COBURN: Do I have a right to personal self-defense?
SOTOMAYOR: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one.
SOTOMAYOR: Generally, as I understand, most criminal law statutes are passed by states. And I'm also trying to think if there's any federal law that includes a self-defense provision or not. I just can't...
COBURN: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?
SOTOMAYOR: I -- as I said, I don't know.
COBURN: I'm talking about your...
SOTOMAYOR: I don't know if that legal question has been ever presented.
COBURN: I wasn't asking about the legal question. I'm asking about your personal opinion.
SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...
COBURN: Well, I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?...
Those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right?
SOTOMAYOR: I know it's difficult to deal with someone as a -- like a judge who's so sort of -- whose thinking is so cornered by law.
COBURN: I know. It's hard.
SOTOMAYOR: Could I...
COBURN: Kind of like a doctor. I can't quit using doctor terms.
SOTOMAYOR: Exactly. That's exactly right, but let me try to address what you're saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I'm talking in very broad terms.
But, under New York law, if you're being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat...
If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend...
COBURN: You'll have lots of 'splainin' to do.
SOTOMAYOR: I'd be in a lot of trouble then. But I couldn't do that under a definition of self-defense. And so, that's what I was trying to explain in terms of why, in looking at this as a judge, I'm thinking about how that question comes up and how the answer can differ so radically, given the hypothetical facts before you.
COBURN: Yes. You know...
SOTOMAYOR: Or not the...
COBURN: The problem is is we think -- we doctors think like doctors. Hard to get out of the doctor skin. Judges thing like judges. Lawyers think like lawyers.
And what American people want to see is inside and what your gut says. And part of that's why we're having this hearing.