Sotomayor Again Says No to 2nd Amendment

CFJ Executive Director Curt Levey on Sonia Sotomayor’s growing Second Amendment problem:

Concerns about Sonia Sotomayor’s hostility to the Second Amendment continued to grow this week. After meeting with Sotomayor yesterday, Sen. Jim DeMint, Chairman of the Senate Steering Committee, emphasized that

“[Sotomayor] was unwilling to say the Second Amendment protects a fundamental right that applies to all Americans, which raises serious questions about her view of the Bill of Rights.”

And on Monday, Congressional Quarterly reported that the National Rifle Association (NRA) and Gun Owners of America are preparing to “weigh in” on Sotomayor’s nomination to the Supreme Court:

“[T]he NRA staff is scouring her record, [NRA Institute for Legislative Action executive director Chris] Cox said. They are paying close attention to Maloney v. Cuomo, in which a three-judge panel on which she served … stated that the [Second] amendment applies only to limitations sought by the federal government, not to those imposed by state or local governments.”

“[Gun Owners of America] president, Larry Pratt, said a vote to confirm [Sotomayor] would cancel out any previous pro-gun-rights votes cast by congressional lawmakers. ‘She’s very hostile to the Second Amendment,’ he said. ‘A vote for her says you don’t really support the Second Amendment. . . . It nullifies all we have achieved and hope to achieve.’”

Even the liberal Ninth Circuit disagreed with Sotomayor’s conclusion in Maloney that only D.C. residents have full Second Amendment rights. Attempts to defend Sotomayor by pointing to last week’s Seventh Circuit gun decision fell flat once analysts looked more closely at the two cases. As John Lott explains in today’s Washington Times,

“[T]he media are either unable or unwilling to read beyond who won the 2nd and 7th circuit cases and the most basic parts of the decisions. … Judge Sotomayor's panel tried to eviscerate the recent Supreme Court decision that had struck down the District's gun ban even for federal laws. To her panel, the Second Amendment would not block any gun-control laws as long as the politicians passing the laws thought the weapon was ‘designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill.’ With that interpretation, the Supreme Court never could have struck down the D.C. gun ban, let alone any other gun-control law. That Judge Sotomayor would make such an argument … means she would vote to return the D.C. gun ban the first chance she got. For those who have any remaining doubts, in a 2004 decision, U.S. v. Sanchez-Villar, Judge Sotomayor ruled ‘that the right to possess a gun is clearly not a fundamental right.’ … It also tells us that no matter how much he protests, Mr. Obama's views on guns are out of sync with those of the vast majority of Americans.”

Judge Sotomayor’s hostility to the Second Amendment is likely the biggest threat to her confirmation, both because more than three-quarters of Americans disagree with her that the Second Amendment is not a fundamental right, and because her views put red state Democrats in a difficult position. As I previously noted,

“[E]very red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he’s supporting a nominee who thinks those constituents don’t have Second Amendment rights. Because they can send red state Democrats running for cover, gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate.”

Majority Leader Harry Reid apparently agrees, given his warning to Democratic senators that “I dare any one of them to say they’re not” supporting Sotomayor (Roll Call 6/4/09). Yesterday on the Senate floor, Sen. Orrin Hatch commented on Reid’s warning, calling it

“a strange tactic indeed, especially so publicly and so early in the process. It makes me wonder whether there are concerns even on the majority side that the leadership simply cannot allow to be expressed.”