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, D.C. 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 Second 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 Fourteenth 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 of this year -- 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 Second and Seventh 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, Senator 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 an African-Americans’ vote from counting the same as a white man’s. And it was wrong when precedent prevented African-Americans from owning firearms. It was equally wrong when precedent prevented women from voting. It took people with courage and conviction to stand up 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 defines us as Americans.
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.