Judge Sotomayor told senators Wednesday that the US Supreme Court had ruled in 2008 that there is an individual right to guns and other weapons. But she stopped short of revealing her thoughts on whether that right was worthy of the kind of judicial protection afforded fundamental rights like the First and Fourth Amendments.
“That is an abstract question with no meaning to me,” Sotomayor responded.
Senator Coburn persisted. “That’s what the American people want to know. Is it okay to defend yourself in your home if you are under attack?”
Questions about Sotomayor’s views on the Second Amendment stem from her involvement in a New York appeals court decision in January that sharply restricted gun rights.
The three-judge panel of which she was a part said the Supreme Court’s 2008 decision applies only to the federal government. The Sotomayor panel ruled that New York and other states were free to regulate or ban weapons if they have a rational basis to do so.
The questions are being asked in an attempt to gain insight into how Sotomayor may vote as a Supreme Court justice.
The question isn’t just hypothetical. Her panel’s decision is one of three lower court opinions currently under appeal to the Supreme Court. If the high court agrees to hear the cases, they could be argued as early as next term.
All three cases raise the issue of whether the right to keep and bear arms is a fundamental right that may not be infringed by state governments except under sharply limited circumstances.
In its 2008 decision, the Supreme Court left that question unanswered. But in a footnote, Justice Antonin Scalia gave lower court judges – such as Sotomayor – an important hint about how the five justices in the majority (all conservatives) believe that issue must be resolved.
The footnote suggests that the legal rationale limiting Second Amendment rights – a series of century-old high court decisions dating to 1875, 1886, and 1894 – is no longer good law.
The note says that the high court’s more recent cases are based on a different line of analysis, which embraces a significantly broader view in applying the protections of the Bill of Rights to the states.
Despite this footnote, Sotomayor’s panel relied on the 1886 precedent, adopting a sharply limited view of the Second Amendment’s protections for gun owners.
Sotomayor has not offered a detailed explanation on why she relied on an 1886 precedent rather than following Justice Scalia’s hint.
Sotomayor has told the senators that when the recent gun-rights case arrived at her court, she and her colleagues read the Scalia footnote and concluded that the Supreme Court had not “explicitly rejected” the 1886 precedent supporting a narrow view of the Second Amendment. So the appeals court used it to decide the case, she said.
Earlier, Sotomayor had told Judiciary Committee Chairman Patrick Leahy of Vermont that she had accepted and applied the high court’s 2008 gun rights decision in her own decision.
“Completely, sir,” she said. “I accepted and applied established Supreme Court precedent.”
She added that the Supreme Court had decided a different issue than her court decided, but she stressed that she’d been faithful to existing Supreme Court precedent.
Senator Leahy followed up with a basic question: “Would you have an open mind on the Supreme Court in evaluating whether Second Amendment rights should be considered fundamental rights and thus applicable to the states?”
“Absolutely,” she said.
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