Justice Sonia Sotomayor really did an about face on her understanding of the 2nd Amendment in McDonald as she joined with the dissenting opinion stating…
“I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes”.
Yes during her confirmation hearings last year, Justice Sonia Sotomayor repeatedly stated that the Supreme Court’s historic Heller decision was “settled law”. Even further, in response to a question from Chairman Leahy, she said…
“I understand the individual right fully that the Supreme Court recognized in Heller’.”
If this is what she believed then there is no non-political reason for her to have ruled the way she did as this case was, if any was – a text book case of the individuals right to bare arms.
Here for your review are the transcripts of the testimony of Justice Sonia Sotomayor on the Second Amendment in her confirmation hearings in July of 2009…
Questioning by Senator Patrick Leahy (D-VT), Chairman of the Senate Committee on the Judiciary:
LEAHY: Good. Let me (ph) talk to you about another decision that’s been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it’s an individual right. I’ve owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting. Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you. And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?
SOTOMAYOR: It is.
LEAHY: And you accept and applied the Heller decision when you decided Maloney?
SOTOMAYOR: Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged, answered the — a different question.
LEAHY: Well, that — let me — let me refer to that, because Justice Scalia’s opinion in the Heller case expressly left unresolved and explicitly reserved as a separate question whether the Second Amendment guarantee applies to the states and laws adopted by the — by the states.
Earlier this year, you were on a Second Circuit panel in a case posing that specific question, analyzing a New York state law restriction on so-called chuka sticks (ph), a martial arts device.
Now, the unanimous decision of your court cited Supreme Court precedent as binding on your decision, and that Supreme Court — longstanding Supreme Court cases have held that the Second Amendment applies only to the federal government and not to the states.
And I noticed that the panel of the Seventh Circuit, including people like Judge Posner, one of the best-known very conservative judges, cited the same Supreme Court authority, agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. The Supreme Court has not held that applicable to the states.
Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states. And I understand that petitions asking — seeking to have the Supreme Court revisit the question applied to the Second Amendment to the states are pending (inaudible) that case appears before the Supreme Court and you’re there how you’re going to rule, but would you have an open mind, as — on the Supreme Court, in evaluating that, the legal proposition of whether the Second Amendment right should be considered fundamental rights and thus applicable to the states?
SOTOMAYOR: Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.
SOTOMAYOR: As you pointed out, Senator, in the Heller decision, the Supreme Court was addressing a very narrow issue, which was whether an individual right under the Second Amendment applied to limit the federal government’s rights to regulate the possession of firearms. The court expressly — Justice Scalia in a footnote — identified that there was Supreme Court precedent that has said that that right is not incorporated against the states. What that term of incorporation means in the law is that that right doesn’t apply to the states in its regulation of its relationship with its citizens.
In Supreme Court province (ph), the right is not fundamental. It’s a legal term. It’s not talking about the importance of the right in a legal term. It’s talking about is that right incorporated against the states. When Maloney (ph) came before the Second Circuit, as you indicated, myself and two other judges read what the Supreme Court said, saw that it had not explicitly rejected its precedent on application to the states and followed that precedent because it’s the job of the Supreme Court to change it.
LEAHY: Well…
SOTOMAYOR: You asked me — I’m sorry, Senator. I didn’t mean…
LEAHY: No, no, go ahead.
SOTOMAYOR: … to cut you off.
LEAHY: No, go ahead.SOTOMAYOR: If you asked me whether I have an open mind on that question, absolutely. My decision in Maloney (ph) and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue. And I would not prejudge any question that came before me if I was a justice on the Supreme Court.
Questioning by U.S. Senator Orrin Hatch (R-Utah):
HATCH: Well, thank you, Mr. Chairman. Welcome again and to your lovely family. We’re — we’re grateful to have you all here. Now, let me ask you a question about settled law. If a holding in the Supreme Court means it is settled, do you believe that — that Gonzales v. Carhart, upholding the partial-birth abortion ban, is settled law?
SOTOMAYOR: All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel.
HATCH: I want to begin here today by looking at your cases in an area that is very important to — to many of us, and that’s the Second Amendment, the right to keep and bear arms, and your conclusion that the — that the right is not fundamental.
Now, in the 2004 case entitled United States v. Sanchez Villar, you handled the Second Amendment issue in a short footnote. You cited the second circuit’s decision in United States v. Toner for the proposition that the right to possess a gun is not a fundamental right.
Toner, in turn, relied on the Supreme Court’s decision in United States v. Miller. Last year, in the….
…District of Columbia v. Heller, the Supreme Court examined Miller and concluded that, quote, “The case did not even purport to be a thorough examination of the Second Amendment,” unquote, and that Miller provided, quote, “no explanation of the content of the right,” unquote. You’re familiar with that.
SOTOMAYOR: I am, sir.
HATCH: OK. So let me ask you, doesn’t the Supreme Court’s treatment of Miller at least cast doubts on whether relying on Miller, as the second circuit has done, for this proposition is proper?
SOTOMAYOR: The issue…
HATCH: Remember, I’m saying at least cast doubts.
SOTOMAYOR: Well, that is what I believe Justice Scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental. It’s not that I considered it unfundamental, but that the Supreme Court didn’t consider it fundamental so as to be incorporated against the state.
HATCH: Well, it didn’t decide that point.
SOTOMAYOR: Well, it not only didn’t decide it, but I understood Justice Scalia to be recognizing that the court’s precedent had held it was not. His opinion with respect to the application of the Second Amendment to government regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller with respect to that issue.
HATCH: Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that it — that the doctrine of incorporation is inevitable with regard to state — state issues?
SOTOMAYOR: That’s the very question that the Supreme Court is more than likely to be…
HATCH: To decide.
SOTOMAYOR: … considering. There are three cases addressing this issue, at least, I should say, three cases…
HATCH: Right.
SOTOMAYOR: … addressing this issue in the circuit courts. And so it’s not a question that I can address. As I said, I bring an open mind to every case.
HATCH: I accept that. In Sanchez Villar, you identified the premise that a right to possess a gun is not fundamental and the conclusion that New York’s ban on gun possession was permissible under the Second Amendment, but there’s not a word actually connecting the premise to the conclusion. Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment.
Is that what you believe?SOTOMAYOR: No, sir, because that’s not — I’m not taking an opinion on that issue, because it’s an open question. Sanchez was…
HATCH: So you admit it’s an open question.
SOTOMAYOR: Well, I admit that Justice — admit. I — the courts have been addressing that question. The Supreme Court, in the opinion authored by Justice Scalia, suggested that it was a question that the court should consider.
I’m just attempting to explain that U.S. v. Sanchez was using fundamental in its legal sense, that — whether or not it had been incorporated against the states.
With respect to that question, moreover, even if it’s not incorporated against the states, the question would be would the states have a rational basis for the regulation it has in place. And I believe that the question there was whether or not a prohibition against felons possessing firearms was at question, if my memory serves me correctly, if it doesn’t. But even Justice Scalia, in the majority opinion in Heller, recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a Second Amendment right.
HATCH: Well, in the District of Columbia v. Heller, the Supreme Court observed that, quote, “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right,” unquote. And the court also observed this, quote, “By the time of the founding, the right to have arms had become fundamental for English subjects,” unquote. Now, the court also described the right to bear arms as a natural right. Do you recall that from that decision?
SOTOMAYOR: I do remember that discussion.
HATCH: OK. All right.
In what way does the court’s observation that the Second Amendment codified a pre-existing fundamental right to bear arms affect your conclusion that the Second Amendment does not protect a fundamental right?SOTOMAYOR: My conclusion in the Maloney case or in the U.S. Sanchez-Villar was based on precedence and the holding of precedence that the Second Circuit did not apply to the states.
HATCH: Well, what’s … excuse me, I’m sorry. I didn’t mean to interrupt you. What’s your understanding of the test or standard the Supreme Court has used to determine whether a right should be considered fundamental? I’m not asking a hypothetical here. I’m only asking about what the Supreme Court has said in the past on this question. I recall (inaudible) emphasizing that a right must be deeply rooted in our nation’s history and tradition, that it is necessary to an Anglo- American regime of ordered liberty, or that it is an enduring American tradition.
I think I’ve cited that pretty accurately on what the court has held with regard to what is a fundamental right. Now, those are different formulations from the Supreme Court’s decisions, but I think the common thread there is obvious. Now, is that your understanding of how the Supreme Court has evaluated whether a right should be deemed fundamental?
SOTOMAYOR: The Supreme Court’s decision with respect to the Second Circuit incorporation — Second Amendment incorporation doctrine is reliant on old precedent of the court, and I don’t mean to use that as precedent that doesn’t bind when I call it old. I’m talking about precedent that was passed in the 19th century.
Since that time, there is no question that different cases addressing different amendments of the Constitution have applied a different framework. And whether that framework and the language you quoted are precise or not, I haven’t examined that framework in a while to know if that language is precise or not. I’m not suggesting it’s not, Senator. I just can’t affirm that description.
SOTOMAYOR; My point is, however, that once there’s Supreme Court precedent directly on point, and Second Circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word “fundamental,” then my panel, which was unanimous on this point — there were two other judges — and at least one other — or one other panel on the Seventh Circuit by Justice — by Justice — by Judge Easterbrook has agreed that, once you have settled precedent in an area, then, on a precise question, then the Supreme Court has to look at that.
And under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that’s what the Supreme Court will do.
HATCH: OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?
SOTOMAYOR: Those rights have been incorporated against the states. The states must comply with them. So in — to the extent that the court has held that…
HATCH: Right.
SOTOMAYOR: … then they are — they have been deemed fundamental, as that term is understood legally.
HATCH: What about the Fourth Amendment, about unreasonable — unreasonable searches and seizures?
SOTOMAYOR: As well.
HATCH: Same…
SOTOMAYOR: But with respect to the holding as it relates to that particular amendment.
HATCH: I understand. Let me turn to your decision in Maloney v. Cuomo. This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court. I think I should be more specific. In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller. And am I right that your authority for that proposition was the Supreme Court’s 1886 decision in Presser v. Illinois?
SOTOMAYOR: That, plus some Second Circuit precedent that had held…
HATCH: OK.
SOTOMAYOR: … that it had not been — that the amendment had not…
HATCH: But Presser was definitely one of the…
SOTOMAYOR: It was, but…
HATCH: … cases you relied on? OK. In that case — or, I should say, that case involved the 14th Amendment’s privileges and immunities clause. Is that correct? You’re aware of that?
SOTOMAYOR: It may have. I haven’t read it recently enough to remember exactly.
HATCH: You can take my word on it.
SOTOMAYOR: OK. I’ll accept…
HATCH: Thank you. Last year’s decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the court did say that its 19th century cases about applying the Bill of Rights to the states, quote, “did not engage the sort of 14th Amendment inquiry required by our later cases,” unquote.
Now, here’s my question: Am I right that those later cases to which the court referred involved the 14th Amendment’s due process clause rather than its privileges and immunities clause?
SOTOMAYOR: As I said, I haven’t examined those cases recently enough to be able to answer your question, Senator. But what I can say is that, regardless of what those cases addressed or didn’t address, the Second Circuit had very directly addressed the question of whether the Second — whether it viewed the Second Amendment as applying against the states. To that extent, if that precedent got the Supreme Court’s teachings wrong, it still would bind my court.
HATCH: I understand that.
SOTOMAYOR: … to the extent that justice…
HATCH: I’m talking about something beyond that. I’m talking about what should be done here. Isn’t the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they’ve used the privileges and immunities clause, not the 14th Amendment due process clause, to incorporate? See, the later cases have all used 14th Amendment, as far as I can recall.
SOTOMAYOR: As I said, Senator, I just haven’t looked at those cases to analyze it. I know what Heller said about them. In Maloney, we were addressing a very, very narrow question.
HATCH: Right.
SOTOMAYOR: And in the end, the issue of whether that precedent should be followed or not, it’s a question the Supreme Court’s going to address if it accepts certiorari in one of the three cases in which courts have looked at this question, the court of appeals has.
HATCH: Well, the reason — the reason I’m going over this is because I believe you’ve applied the wrong line of cases in Maloney, because you were applying cases that used the privileges and immunities clause and not cases that used the 14th Amendment due process clause.
Let me just clarify your decision in Maloney. As I read it, you held that the Second Amendment does not apply to state or local governments. You also held that, since the right to bear arms is not fundamental, all that is required to justify a weapons restriction is some reasonably conceivable state effects that could provide a rational basis for it. Now, am I right that this is a very permissive standard that could be easily met, the rational basis standard?
SOTOMAYOR: Well, all standards of the court are attempting to ensure that government action has a basis.
HATCH: Right.
SOTOMAYOR: In some cases, the court looks at the action and applies a stricter scrutiny to the government’s action. In others, if it’s not a fundamental right in the way the law defines that, but it hasn’t been incorporated against the states, then the standard of review is of rational basis.
HATCH: And my point is, it’s a permissive standard that can be easily met. Is that correct?
SOTOMAYOR: Well, the government can remedy a social problem that it is identifying or a difficulty it’s identifying in conduct not in the most narrowly tailored way, but one that reasonably seeks to achieve that result. In the end, it can’t be arbitrary and capricious.
HATCH: Well…
SOTOMAYOR: That’s a word that is not in the definition…(CROSSTALK)
HATCH: Maybe I could use the words “more easily met.” How’s that? OK?
SOTOMAYOR: As I said, it — the rational basis does look more broadly than strict scrutiny may.
HATCH: Right, that’s my point. That’s my point. As a result of this very permissive legal standard — and it is permissive — doesn’t your decision in Maloney mean that virtually any state or local weapons ban would be permissible?
SOTOMAYOR: Sir, in Maloney, we were talking about nunchuk sticks.
HATCH: I understand.
SOTOMAYOR: Those are martial arts sticks.
HATCH: Two sticks bound together by rawhide or some sort of a…
SOTOMAYOR: Exactly. And — and when the sticks are swung, which is what you do with them, if there’s anybody near you, you’re going to be seriously injured, because that swinging mechanism can break arms, it can bust someone’s skull…
HATCH: Sure.
SOTOMAYOR: … it can cause not only serious, but fatal damage. So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court — because the Second Amendment has not been incorporated against the state — was, did the state have a rational basis for prohibiting the possession of this kind of instrument?
Every kind of regulation would come to a court with a particular statute, which judicial — judicial — legislative findings as to why a remedy is needed, and that statute would then be subject to rational basis review.
HATCH: Well, the point that I’m really making is that the decision was based upon a 19th century case that relied on the privileges and immunities clause, which is not the clause that we use to invoke the doctrine of incorporation today, and that’s just an important consideration for you as you see these cases in the future.
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