Sotomayor's Bias; Second Amendment Is Still in the Constitution

Article excerpt


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. 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 U.S. 2nd 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 14th 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 - 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 2nd and 7th U.S. Circuits did - that the Second Amendment doesn't apply to the states. …