Is Sotomayor Anti-Gun?

When it comes to the Second Amendment, Obama's Supreme Court nominee practices judicial restraint, not judicial activism.

Last summer, the Supreme Court, for the first time ever, said the Second Amendment protects an individual right to own a gun for self-defense. It was a historic decision that put real limits on gun control. But gun-rights advocates complain that someone didn't get the memo—someone named Sonia Sotomayor.

Exhibit A is her decision in January to uphold the conviction of a New York man for possession of fighting sticks called nunchakus. He said the law violated his right to keep and bear arms. But in a unanimous decision joined by Sotomayor, the 2nd Circuit Court of Appeals found "it is settled law ... that the Second Amendment does not apply to the states and therefore imposed no limitations on New York's ability to prohibit the possession of nunchakus"—or, by implication, firearms.

Does that sound like the sort of arrogant verdict you would expect from an activist, liberal, gun-hating judge? It shouldn't. Sotomayor's decision was a model of judicial restraint that was entirely appropriate given the Supreme Court's record.

Don't take my word for it. The issue of whether the Second Amendment limits the power of state and local governments recently came up in the 7th Circuit Court of Appeals in Chicago. Good luck finding an activist liberal on the panel issuing that decision. It was composed entirely of judges appointed by Republican presidents. Yet it ruled exactly the same way.

The author of the decision was Frank Easterbrook, one of the most intellectually formidable conservatives on the federal bench. In his opinion, he said "we agree with" the Sotomayor court's decision. Last year's Supreme Court ruling, he noted, applied only in the District of Columbia, a federal enclave, and past Supreme Court rulings rejected extending the Second Amendment to the states.

That conclusion, said Easterbrook, "is open to re-examination by the justices themselves when the time comes." In the meantime, a lower court should not "strike off on its own." There is no guarantee, in his view, that the Supreme Court will expand the reach of the Second Amendment. "Federalism," he wrote, "is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

You could interpret Sotomayor's ruling (and Easterbrook's) as proof of something bad: a rejection of the Second Amendment. Or you could interpret it as proof of something good: judicial restraint. It is tempting for supporters of gun rights, myself included, to wish that lower courts would go beyond what the Supreme Court has done. But that is the kind of judicial activism we tend to oppose when it's done for other, less congenial causes.

But her critics charge that Sotomayor's anti-gun bias was on display even before this decision. In 2004, she joined a decision dismissing a Second Amendment claim by an illegal immigrant convicted of handgun possession, noting that her court had previously said "the right to possess a gun is clearly not a fundamental right."

Sorry, but this assertion is no smoking gun either. It was merely a reasonable summary of legal precedents that she was obligated to follow. The Supreme Court's chief previous ruling on the Second Amendment, in 1939, after all, rejected the idea that individuals have a right to own guns for personal use.

If that weren't clear enough, in 1980 the justices stated that a federal ban on gun possession by felons did not affect "any constitutionally protected liberties." When Sotomayor's court said gun ownership is not a fundamental right, it was giving not a personal opinion of what should be, but a simple declaration of the state of the law as it stood in 2004.

Of course Sotomayor may have found that it also fit neatly with her policy preferences. Given her generally liberal profile and her selection by a president who is not exactly a Second Amendment stalwart, the chances are pretty good that she takes a favorable view of gun control.

But you can't prove it based on how she's ruled from the bench. Nothing in her judicial record would preclude her from voting to reaffirm the court's decision last year—or going further to strike down state and city gun bans.

Maybe that's hoping for too much. But Supreme Court nominees have surprised presidents before. Until we find a certified mind reader to ransack Sotomayor's innermost thoughts about gun laws, we ought to admit something commentators hate to say: We don't know.


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  • ||

    I really wish Sotomayer would go crawl back under the rock from which she emerged.


  • ||

    Somebody needs to explain to me why some amendements are held to apply to the states and some amendments are held not to apply to the states.

  • ||

    Hmmmm...guess I should have read Damon Root's 6-17-09 article before I posted the above comment. Thanks Damon.

  • ||

    It's even more frightening when it attempts to smile.


  • Joel||

    "Federalism," [Easterbrook] wrote, "is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

    He had me up to this point. From the time they first emerged from the primordial soup, looked around and said, "Hey! Where're my teeth and claws?", humans have recognized the right to carry any particular kind of weapon. Federalism came a little later.

    Which is why it's been a long time since I really cared what federal judges said or thought about my right to do anything.

  • Barry Loberfeld||

  • ||

    Red text on a lemon yellow background?

    The irises are the tenderest of sphincters, Barry. Please don't rape them.

  • John||

    Sotomayor's saying that it is "settled law" that the second amendment isn't incorporated is not necessarily restraint, since the very conception of the right itself was not well-defined until Heller. It would be well within her judicial prerogative to determine that the second amendment right, newly identified by Heller, were indeed a fundamental right that should be incorporated to the states. That is a novel issue, not settled law.

    PS - If all judges ruled as Sotomayor, no circuit split could ever take place, and circuit splits often set up Supreme Court examination.

  • ||

    I agree that Sotomayor's not an obvious enemy of gun rights. But I think Chapman errs in congratulating the 7th as merely respecting precedent; see Damon Root on this:

  • ||

    Federalism," [Easterbrook] wrote, "is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

    What a steaming pile of crap. Looked at narrowly, the 2A and the rest of the Constitution were adopted simultaneously.

    Looked at historically, the right to self-defense and the tools to conduct it go further back in the English tradition than "federalism."

  • ||

    Sotomayor's saying that it is "settled law" that the second amendment isn't incorporated is not necessarily restraint,

    Particularly since the cases they cite essentially stand for the proposition that nothing is incorporated, a doctrine that has since been substantially abandoned.

  • Norbert Sluzewski||

    In our system of government, a supreme court justice is selected for a life term. There are nine supreme court justices, each yielding great power over the manner in which laws are interpreted in our country. We typically spend over a year and a half choosing our president. We spend months selecting our senators and congressmen. Compared to a supreme court justice, each of these is appointed for a relatively short term.

    Why then do we rush to confirm this candidate through the confirmation process? Senate Judiciary Committee Chairman Pat Leahy is forging ahead to complete the process by July 13, in total 2 months since her candidacy was announced as the president's pick.

    Let's respect the gravity of the decision that is about to be made and give all the time to fully review judge Sotomayor's qualification, judicial demeanor and temperament. Once made it can not be un-made and there is no 30-day satisfaction guarantee if later events or discoveries make us question the decision.

    More insights at

  • Jonas||

    I'm surprised nobody's complained yet that it was Steve Chapman who wrote this rather underwhelming piece...

  • Federale||

    I certainly don't believe for a minute that she believes in judicial restraint or states rights except on the issue of the Second Amendment. The moment she is on the court, judicial restraint, States Rights, and the Second Amendment will be out the window. Do you think we are stupid?

  • Ben||

    Chapman is reasoning from entirely false premises, just as the corrupt system has trained him to.

    1) There is NO constitutional authorization for amendment given to the judiciary. In article III, they are authorized to *rule* in the case of constitutional law; just as a town judge can rule if you are accused of spitting on the sidewalk; the power to rule is (sometimes) that of (a) determining if you DID spit on the sidewalk, and (b) (always) if found guilty, applying the penalt(y/ies), if any. SCOTUS is constitutionally given the authority to see if the FEDS have violated the law, because the 2nd is a restraint on the FEDS, not on the citizens. They are not given the authority to change the law of the constitution any more than the town judge can say that the spitting law suddenly applies to dropping tears, or that it doesn't apply to spitting if you're chewing wads of cancer bush. The specific line in the constitution (and the ONLY line) that empowers the SCOTUS with regard to the constitution is: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution" -- see anything there about amendment or redefinition of the constitution? No, you don't. That's because NO SUCH THING IS AUTHORIZED. SCOTUS can judge cases where violations are alleged to have occurred. That's it. Period. End of authorization. So the ONLY question about arms and citizens it is authorized to answer is, does a federal law infringe on the right of the citizen to keep and/or bear arms?

    2) The specific and explicit constitutional restraint on the feds is contained in the operative phrase of the 2nd amendment: "the right of the people to keep and bear Arms, shall not be infringed." Therefore, in the case of a FEDERAL law, clearly, there can be no authorized law created that restrains one from carrying and/or keeping nunchukau (arms) on one's own property or on public property. This means that almost every federal law on the books dealing with the keeping and carrying of arms of any kind is unauthorized, with the notable exception of laws that might define penalties for the creation or enforcement of restraining laws.

    3) The 14th amendment is a restraint upon the states, in that it specifies that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It doesn't say that an immunity/privilege has to be "incorporated", it simply says you can't abridge them, and the source of the immunity/privilege, explicit or implied, isn't a matter of consequence. Therefore, the 2nd restrains the states, as it is a VERY clearly and cleanly defined explicit declaration of an immunity of the citizen -- specifically, an immunity from being restrained to keep or bear arms. Not rifles, pistols, knives or cannon; ARMS. This means that almost every STATE law on the books dealing with the keeping and carrying of firearms is unauthorized, again with the notable exception of laws that might define penalties for the creation or enforcement of restraining laws.

    4) The fact that Sotomayor, like most of her conspirator brethren in the legal system, will not read the plain English of the constitution and come up with the obviously correct answer (minus the sophist garbage lawyers and judges have been feeding the gullible for years) is a rousing condemnation of any possible qualification for the SCOTUS. It is also a huge red flag that she does indeed subscribe to the idea that taking well defined and explicitly defined immunities/rights from unconvicted citizens is perfectly ok.

    5) If there is a need to restrain the keeping and carrying of arms, then article five is waiting for the specifics. No argument of "necessity" is sufficient to supersede the constitution; because if we allow the government to do what it wants because it says it needs to, regardless of having been FORBIDDEN to do so by its establishing charter, we now have a government that is acting as a de facto dictatorship, unrestrained by anything more concrete than "We wanted to, so we did."

    6) The constitution, as I mentioned above, is a restraint upon the federal government. With the 14th, some of that restraint (rights / immunities) extends to the state governments. This restraint remains in power to this day, despite its age, because of the oaths that the federal and state legislators are required to swear. NONE of this is a restraint upon today's citizen, unless you so choose to be restrained. This is because no contract is binding on an individual unless you (a) sign it, or (b) swear to it. No one can commit you to a contract you didn't sign or swear to. Including a bunch of dead guys who wrote a contract centuries ago. Therefore, regardless of what the feds do or don't do, the authorization they operate under did not come from you and does not obligate you as a party to it (again, unless you'd like to swear to your end of it or sign something to that effect... have you?) The upshot of this is that if the feds (and the states, for that matter) can't even be bothered to obey the founding charter that authorizes them to exist, and the oaths that bind them to that charter, why should you, as someone who has *not* sworn an oath or signed a contract, be constrained by anything they have to say? I mean, other than blatant threat of harm and unauthorized use of power? Which is, of course, again absolutely identical to the operation of a pure dictatorship: Do what I say, or I'll hurt you and yours. Straight-up coercion.

    This society is destroying itself. Its long term demonstrated inability to implement the principles upon which it was founded are the very root of its illegitimacy; unable to hew to those principles, it founders at law, at honor, and at liberty. Today, it is a construct far out of control of the people, and without any clear guides whatsoever other than superstition, greed and raw accrual of power.

    If you had any power to do so, I'd suggest you work against the acceptance of Sotomayor; but you don't. You'll get Sotomayor because the power structure has decided it wants her, regardless of what you say or do.

    Chapman, like many of the bewildered, plays right into the hands of the current dictatorship when he asserts that there is an established legitimacy to infringement upon the people's right to keep and bear arms. He is completely, utterly wrong on *every* end of his assertions. There is no such legitimacy. There is only an established illusion based upon dictatorial and unauthorized misuse of power.

  • ||

    "The right to possess a gun is clearly not a fundamental right."
    -Sonia Sotomayor (2004 United States v. Sanchez-Villar)

    "The Supreme Court's chief previous ruling on the Second Amendment, in 1939, after all, rejected the idea that individuals have a right to own guns for personal use."

    So, she should ignore SCOTUS precedent (Heller), but should follow a different SCOTUS precedent (Miller)?

    The author debunks himself.

    US v Miller is a very poor case to use as n example. It really was a "throw the book at him and ignore the Constitution" case. Any rational (truthful) Libertarian leaning person would reject it.

    The case was argued without the presence of defendant or defense team. Miller's death put a damper on fighting the case. Also, since the NFA was used as a political smokescreen after the St. Valentine's massacre, it lends itself to misuse.

    Using a deeply flawed decision to support a candidates decision while ignoring a better decision that doesn't support your view is just plain weak.

    "Nothing in her judicial record would preclude her from voting to reaffirm the court's decision last year-or going further to strike down state and city gun bans."

    Take this statement at face value. The converse is just as valid.

    In point of fact, the Sotomayor quote above indicates that she would respect the Constitution just as well as it was respected in 1939.
    That is: Not at all.

  • Nick||

    If she walks like a duck, quacks like a duck - she is a duck.

    Don't bother looking for a reason why she is anti-gun. That's how she is, period. There is no need in any kind of research on why she feels that way, it's pointless, that's who she is. Take it, or leave it.

    Some people respect Constitution the way it was written, some people speculate that it was written long time ago and need to be reviewed. She is one of them. And trust me, she WILL review it. You've elected her Master into Office and she will serve Him well. Be ready.


  • ||

    I'm really surprised that only "jc" came close to a correct answer regarding the Miller decision. I guess the left has been telling us for decades that it held that the 2d wasn't an individual right, and people believed them. Miller held that a short barrel shotgun was not an appropriate militia weapon because the government held that it had no military application. That was wrong, shorter barrel shotguns having been used in WW I through at least Viet Nam. But with no defense appearing, the record was not corrected. Miller did NOT comment at all about the status of the 2d vis a vis whether it applied to the people or the states.

    Also, Chapman missed the fact that in Scalia's opinion he footnoted that the 2d would (or should. can't remember which at this moment) be subject to incorporation by the 14th Amendment.

    IN any event, for once the 9th Circuit got it "right". It isn't "judicial activism" for a Circuit Court of Appeals to apply the clear language of the Constitution, particularly when there is ample case law of the SCOTUS applying the 14th to every other individual right in the Bill of Rights (other than the 3d, which hopefully will never have a case even at the District Court level). Add the "hint" Scalia footnoted into the decision that the 2d is an individual right, and incorporation should have been clearly indicated.

  • ||

    The 14th Amendment removes states' discretion when it comes to upholding our fundamental rights. Otherwise, we could end up in a gunless theocracy with no private press or right to a fair trial and stoning as the preferred method of capital punishment.

  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on...the Bible's books were written by people with very different order to really get the Books of the Bible, you have to cultivate such a mindset, it's literally a labyrinth, that's no jokeAlso, Chapman missed the fact that in Scalia's opinion he footnoted that the 2d would (or should. can't remember which at this moment) be subject to incorporation by the 14th Amendment.


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