Sotomayor's Gun Control Positions Could Prompt Conservative Backlash

Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states.

FOXNews.com

Thursday, May 28, 2009

Judge Sonia Sotomayor could walk into a firestorm on Capitol Hill over her stance on gun rights, with conservatives beginning to question some controversial positions she's taken over the past several years on the Second Amendment.

Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states.

A 2004 opinion she joined also cited as precedent that "the right to possess a gun is clearly not a fundamental right."

Ken Blackwell, a senior fellow with the Family Research Council, called Obama's nomination a "declaration of war against America's gun owners."

Such a line of attack could prove more effective than efforts to define Sotomayor as pro-abortion, efforts that essentially grasp at straws. Sotomayor's record on that hot-button issue reveals instances in which she has ruled against an abortion rights group and in favor of anti-abortion protesters, making her hard to pigeonhole.

But Sotomayor's position on gun control is far more crystallized.

Blackwell, who also ran unsuccessfully to head the Republican National Committee, told FOX News her position is "very, very disturbing."

"That puts our Second Amendment freedoms at risk," he said. "What she's basically saying is that your hometown can decide to suppress your Second Amendment freedoms."

The chief concern is her position in the 2009 Maloney v. Cuomo case, in which the court examined a claim by a New York attorney that a New York law that prohibited possession of nunchucks violated his Second Amendment rights. The Appeals Court affirmed the lower court's decision that the Second Amendment does not apply to the states.

The ruling explained that it was "settled law" that the Second Amendment applies only to limitations the federal government might seek on individual gun rights.

Despite last year's landmark Supreme Court ruling in the District of Columbia v. Heller, in which the court ruled that the Second Amendment protects an individual right to bear arms, the Maloney ruling determined that case "does not invalidate this longstanding principle" that states are not covered by the Second Amendment. (Another appeals court since the Heller case reached the opposite conclusion.)

Justice David Souter, whom Sotomayor would replace, dissented from the majority decision in D.C. v. Heller, so Sotomayor wouldn't necessarily tip the balance on such issues. But she's joining a split body -- the D.C. case was a 5-4 decision -- and with the Maloney case likely to be appealed to the Supreme Court her presence could be threatening to gun rights groups.

"We have concerns and we have questions," Andrew Arulanandam, public affairs director for the National Rifle Association, told FOXNews.com. He said the NRA would work with members of Congress to have those concerns addressed in the coming months, and that the NRA has researchers looking more closely at Sotomayor's gun rights record.

Ken Klukowski, a fellow and legal analyst with the American Civil Rights Union, predicted this issue would heat up as the confirmation process moves forward.

"If this nomination were not to succeed, it would likely be because of the Second Amendment issue," he said.

Klukowski questioned the brevity of the Maloney decision, which spanned only a few pages, more than the actual conclusion. He said it glossed over decades of relevant legal precedent.

"The idea that you would be the first circuit court to take up this profound, constitutional question after the Supreme Court's landmark ruling and only give it one paragraph is stunning," he said.

But Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said the issue of Sotomayor's gun rights position is being "overblown" since the court was merely following precedent. He agreed that the Heller decision did not mean Second Amendment rights apply to states.

He said any controversy over the issue would be a "red herring."

As interest groups launch a heated campaign to define Sotomayor and draw the battle lines ahead of her confirmation process, the White House has voiced unequivocal confidence in her judgment.

White House Press Secretary Robert Gibbs said Thursday that Obama was "very comfortable with her interpretation of the Constitution being similar to that of his."

He agreed that the Heller decision did not mean Second Amendment rights apply to states.

Helmke et al have taken the position that since D.C. is not a state, that Heller only applies to it specifically, and not to the 50 states.

That really seems patently absurd to a simple fellow like myself. I mean this thing went to the Supreme Court but only applies to the District of Columbia? I think that Helmke guy's been sippin' on the sterno.

Heller was crafted to provide SCOTUS with exactly one issue - does the 2nd protect an individual right.
Other issues are for future cases.

But the constitution applies to American's true? Not just to people living in DC. So if the 2d amendment (like Freedom of Speech, Freedom of Religion, etc) doesn't belong to ALL Americans, then it wouldn't have been written down as one of our inalienable rights!

You're among friends here. I think most of us would agree with you. However, none of us sit on the bench (AFAIK).

Yeah, It's just infuriating that what is really common sense to the "common" man can be rationalized, raped and dissected by seemingly educated persons whose motives are mostly less than than pure-- Please don't take my rants personally.

Originally the Second Amendment simply limited the power of the federal government to control weapons. It was something the STATES agreed to, and had little or nothing to do with individual rights of the citizens of the various states.

The language of the second amendment is broad enough to embrace both Federal and State governments -- nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should he added. And in the first session of the first Congress, ten of these amendments having been agreed to by that body, and afterwards sanctioned by three-fourths of the States, became a part of the Constitution. But admitting all this, does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

Questions under some of these amendments, it is true, can only arise under the laws and Constitution of the United States. But there are other provisions in them, which were never intended to be thus restricted, but were designed for the benefit of every citizen of the Union in all courts and in all places; and the people of the several States, in ratifying them in their respective State conventions, have virtually adopted them as beacon-lights to guide and control the action of their own legislatures, as well as that of Congress. If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence ? In solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia; the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate? Would they not be recreant to themselves, to free government, and false to their own vow, thus voluntarily taken, to suffer this right to be questioned? If they hesitate or falter, is it not to concede (themselves being judges) that the safety of the States is a matter of indifference?

Such, I apprehend, was never the meaning of the venerated statesman who recommended, nor of the people who adopted, this amendment.

The right of the people peaceably to assemble and petition the government for a redress of grievances; to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; in all criminal prosecutions, to be confronted with
the witness against them; to be publicly tried by an impartial jury; and to have the assistance of counsel for their defence, is as perfect under the State as the national legislature, and cannot be violated by either.

Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed;" The right of the whole people, old and young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.

In Nunn,the Georgia Supreme Court is simply deciding what the law means in Georgia. It's not a United States court interpretation which is binding on another state. State's rights vs the federal government are not at issue.

That's different than saying the United States Supreme decision in Heller obviates a state law. Heller was undoubtably selected because it was a DC case which would avoid this question of incorporation, which might have really sunk our boat.

We've now got Justices which purport to believe in a strict constructionist view, and Justices who don't like guns. And nobody who is a big fan of the Second Amendment.