Also, I Know Some Police Officers Who Carry Guns

Jacob Sullum | July 14, 2009

Today's hearing on Sonia Sotomayor's nomination to the Supreme Court provided a reminder that Sen. Russell Feingold (D-Wis.) is not the sort of civil libertarian whose mental map of the Bill of Rights excludes the Second Amendment (although the borders of his First Amendment get fuzzy in the vicinty of campaign finance reform). Feingold, who joined the congressional brief that urged the Supreme Court to overturn the District of Columbia's handgun ban in D.C. v. Heller, said it was reasonable for Sotomayor to conclude that the Second Amendment, in light of the relevant Supreme Court precedents, does not apply to the states. But he also made it clear that he thinks those precedents should be overturned:

I have long believed that the Second Amendment grants citizens an individual right to own firearms.

And, frankly, I was elated when the court ruled in Heller last year....I think [it] had been a mistake all along, to not recognize it as an individual right....

After Heller, doesn't it seem almost inevitable that, when the Supreme Court does again consider whether the Second Amendment applies to the states, that it will find the individual right to bear arms to be fundamental, which is a word that we've been talking about today?

After all, Justice Scalia's opinion said this: "By the time of the founding, the right to...bear arms had become fundamental for English subjects. Blackstone, whose works we have said constituted the pre-eminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. It was, he said, the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense...."

Isn't there a danger here that if you don't have this incorporated against the states that we'd have this result where the citizens of D.C. have a constitutional right to have a handgun, but the people of Wisconsin might not have that right? Doesn't that make it almost inevitable that you would have to apply this to the states?

Brian Doherty and Damon Root addressed the Second Amendment incorporation issue in the context of Sotomayor's nomination earlier today. While I agree that compelling states to respect the right to arms was one of the 14th Amendment's aims, I also agree with Feingold that deferring to the Court on this question (as both the 2nd and the 7th Circuits did) is defensible and does not necessarily indicate anything about Sotomayor's views on gun control. Here is a better indication, which falls into the category of protesting too much:

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.

Comments

|7.14.09 @ 6:45PM|#

I have long believed that the Second Amendment grants citizens an individual right

Feingold is a moron. The constitution does not grant rights, period. It prohibits the government from infringing on them.

-jcr

hmm|7.14.09 @ 6:49PM|#

The, "Some of my best friends are black!" rebuttal.

What a low brow, intellectually void response. A sucking sound like soup through a straw would have been better.

hmm|7.14.09 @ 6:59PM|#

I have to post my favorite line from Nordyke v. King since it is relevant to the first post and rights. It's from the county supervisor Mary King.

but she had "gotten the run around from
spineless people hiding behind the constitution...

That line makes me cringe every time.

The Angry Optimist|7.14.09 @ 7:03PM|#

JCR - even I catch myself saying "grants rights" on accident sometimes, so:

Yo, JCR, shut the fuck up.

Joel|7.14.09 @ 7:11PM|#

"...spineless people hiding behind the constitution..."

Yo, don't be spineless! Man up and knuckle under to my authoritay!

</|7.14.09 @ 7:30PM|#

The Angry Optimist | July 14, 2009, 7:03pm | #
JCR - even I catch myself saying "grants rights" on accident sometimes, so:

(You constantly remind us what a mindless twit you are)

Yo, JCR Nancy Randy, shut the fuck up.

|7.14.09 @ 7:46PM|#

I understand the individual right fully that the Supreme Court recognized in Heller.

Ok, so she understands it. Will she uphold it or violate it?

-jcr

|7.14.09 @ 7:57PM|#

"Feingold is a moron. The constitution does not grant rights, period. It prohibits the government from infringing on them."

Persnickety much?

|7.14.09 @ 9:59PM|#

You know exactly where someone stands when they go right to hunting when discussing the 2nd. Earnest supporters of the individual right understand it's most importantly about protection. Hunting, pffth - slight of hand. I'm not sure that incorporation is do or die for the individual right, though. The vast majority of states protect gun ownership (in their own constitutions), many as an individual right, some specifically mentioning self defence.

cbmclean|7.14.09 @ 10:28PM|#

Feingold is a moron. The constitution does not grant rights, period. It prohibits the government from infringing on them.

Reading the Reason comments section I get the opinion that the contributors are not a notably religious group of people. The quoted comment above has got me wondering. Where do irreligious libertarians think that "rights" come from, assuming that they recognize the existence of said rights. Please note that I'm not picking an intellectual argument with atheism/agnosticism. I am honestly curious. So please tell me:

1. Do you recognize the existence of objective, non-culturally-dependent rights?

2. If so, what is their source?

|7.14.09 @ 10:51PM|#

cbmclean,

This is not an answer to your question, just a little contribution that will hopefully be worth something:

The person who posted the post you quote seems to believe in some sort of natural law or Randian scheme or something or other. He may jump me for saying so, but in any case he seems to believe in something fundamental like this.

The beef I had with his comment is that if one believes in something so fundamental, then certainly this is something akin to religious belief or at the very least some sort of intuitive or a priori commitment. I'm not saying these kinds of commitments are useless, but not everyone agrees on these fundamental intuitions, so calling someone a moron who happens to not share yours, well, that's moronic.

There's a rich tradition in legal philosophy, positivism, that asserts that law is whatever the sovereign (king, government, etc) says it is. I have no small amount of sympathy for this view (and it follows quite closely, that law and morality are not necessarily connected).

It wouldn't matter then, if the sovereign told the people, in a founding document, that they are the true source of power (see how that's a little weird, a document with all the authority of the sovereign, giving power to the people? I mean, does the document then have the authority of.. anyway, you get the point).

As for your larger question, I think it's possible to be a realist about morality, and still come to disbelieve in any such thing as "rights." Of course there would have to be a difference between "right" and "wrong," if someone was such a realist. But "rights" in the context we're using the term in, seems to be something akin to being entitled to be left alone, or entitled or deserving to be equal (in certain respects) to others, or something like that. So even if one was justified in believing in the reality of good and evil, that would not get one all the way home in terms of belief in rights.

Like I said, I didn't answer your question, I'm a soft libertarian at best (or worst, depending on your POV).

So my little answer here is for whatever it's worth...

|7.14.09 @ 10:53PM|#

I will add though, that some libertarians are not realists at all about morality in *any* sense, rights included. So one can be a libertarian for purely pragmatic reasons, and many are.

|7.14.09 @ 10:54PM|#

Go Feingold Go!

Sometimes I love that guy. Sometimes.

But, I was listening to C-Span radio and some senator asked her 'Can you show me where there is a right to privacy in the constitution?' and she gave some roundabout dumb answer. This is easy. 'Senator, if'n a fundamental right ain't listed or talked about in the Constitution, then look to the ninth or tenth amendment and realize that people do claim a right to privacy.' Then should could have gotten all technical about it and talked about when and where privacy is expected, etc. But the question was dumb and her answer was equally dumb.

And these are our rulers.

phalkor|7.14.09 @ 11:03PM|#

so the above few comments are saying libertarians are not nihilists. I'll buy it, libertarians often, maybe always believe in something.

|7.14.09 @ 11:33PM|#

Sotomayor, 55, told the Senate Judiciary Committee: "I understand how important the right to keep and bear arms is to many people; one of my godchildren is a member of the NRA. I have friends who hunt."

What a racist comment for a sitting judge to make!

What if I were to say that, "I understand how important the right to non-discrimination is to many people; one of my godchildren is a member of the NAACP. I have friends who are Hispanic."?

Our rights are important to all of us. To imply that rights only apply to some who are directly affected by them or that having friends who belong to a certain group makes one open-minded is outmoded thinking and unacceptable for a Supreme Court justice today.

Wade|7.15.09 @ 8:58AM|#

"Sotomayor, 55, told the Senate Judiciary Committee: "I understand how important the right to keep and bear arms is to many people; one of my godchildren is a member of the NRA. I have friends who hunt."

I don't see how this is a racist comment, just irrelevant. I have many friends that I don't agree with their beliefs.

robc|7.15.09 @ 9:08AM|#

Considering the number of leftist Wisconsinites who support gun rights, why cant I carry concealed when I go up there in August?

IIRC, Wisconsin and Illinois are the only states in the union where it is impossible for even residents to get a concealed carry permit.

robc|7.15.09 @ 9:12AM|#

Oatwhore,

If Sotomayor had said the right to privacy comes from the 9th, the Dems would have started lining up to vote against her.

|7.15.09 @ 10:33AM|#

Considering the number of leftist Wisconsinites who support gun rights, why cant I carry concealed when I go up there in August?

They're the dumb fuck gun owners/hunters who also supported the assault weapon ban. The "What do you need one of them for?" types. Not the sharpest knives in the drawer. "Handguns? Who needs 'em. That's what them gawdamn niggers use to commit their crimes". Is it a continuum if it just wraps right around?

Zeb|7.15.09 @ 11:50AM|#

"Sotomayor, 55, told the Senate Judiciary Committee: "I understand how important the right to keep and bear arms is to many people; one of my godchildren is a member of the NRA. I have friends who hunt."

Yeah, where the fuck do you find racism in there?

But it is a silly statement. The second amendment has nothing to say about hunting. As far as the second amendment is concerned, all hunting could be banned completely. It is about military and self defense weapons designed to kill people.

|7.15.09 @ 1:06PM|#

The statement she made isn't racist in itself, but it does smack of the sort of mealy-mouthed equivocation many racists will offer up. After stating something racist they'll follow up with "I can't be racist, some of my best friends are black/hispanic/asian/etc."