Incorporation of the Second Amendment

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In January 2009, a three-judge panel of the U.S. Court of Appeals for the Second Circuit, including Supreme Court nominee Sonia Sotomayor, ruled that the Second Amendment only applies at the federal level.  This ruling in the case of Maloney v. Cuomo said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.

The opinion stated, “It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right.”  The ruling cited the 1886 Supreme Court case of Presser v. Illinois.  In Presser, the Supreme Court ruled, “the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.”

I believe the Second Circuit was incorrect in their Maloney ruling.  In 2008, the Supreme Court ruled in the case of Heller v. District of Columbia that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.  The Supreme Court ruled that the Second Amendment, “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation.  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”  Stating in Heller that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia” the Supreme Court held that Presser had no bearing on anything beyond a state’s ability to outlaw private militia groups.

Every other part of the Bill of Rights is extended to the states through a process known as incorporation, which utilizes the Due Process Clause of the Fourteenth Amendment.  Section 1 of the Fourteenth Amendment states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For some inexplicable reason, the Second Circuit’s ruling in Maloney disregarded the Fourteenth Amendment.  But not all sanity is gone in the realm of the Court of Appeals.  In April 2009, the Ninth Circuit Court of Appeals ruled in the case of Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.  The Ninth Circuit said, “We therefore conclude that the right to keep and bear arms is deeply rooted in this Nation’s history and tradition…  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

It is clear from the Supreme Court’s Heller ruling and in the Ninth Circuit’s Nordyke decision that the Second Amendment does indeed restrict the power of state and local governments to interfere with individual right to have guns for personal use.  I believe it is our duty as American citizens to ensure that our rights to own firearms, which are guaranteed by the Second Amendment, should not be violated by overzealous politicians who are trying to cater to special interest groups.  We should look to elect officials who will actively preserve the rights guaranteed to us by the U.S. Constitution and protect those rights from ever being infringed upon.


Sonia Sotomayor

Next week, the Senate Judiciary Committee’s confirmation hearing for the nomination of Judge Sonia Sotomayor to be an Associate Justice on the U.S. Supreme Court is scheduled to take place.  From everything that I understand, unless some unknown bombshell of breaking news (such as the evidence of failure to pay her taxes or evidence that she has employed an illegal alien in her house) comes up in the next few days, Sotomayor will easily be confirmed by the Senate.

I am not a legal expert by any stretch of the imagination.  I am not a judge.  I am not a lawyer.  I am not a law clerk.  I never even thought about attending law school.  That being said, I have my reservations about Sonia Sotomayor becoming a part of the Supreme Court of the United States.  I don’t want to get into her ruling in the case of the New Haven firefighters or in the case of whether the rights guaranteed in the Second Amendment of the United States Constitution apply to the individual states.  Those are specific cases that need to be looked at individually at a different time.  Instead, I am taking a broad look at the way Judge Sotomayor sees the world and the role of judges in society.  Sotomayor has made a number of statements that give me pause.

Sotomayor’s most often critiqued quote is from a 2001 symposium at U.C. Berkeley’s School of Law.  The conference’s theme was “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation.”  In her speech, Sotomayor made a point of stating that the life experiences of women and minorities allows them to look at issues from unique points of view, ultimately leading to better judgments and greater overall justice.  Normally, only the very last sentence of her comment is cited by the media.  In the hopes of providing a more comprehensive look at her position, I have decided to cite a larger piece of the speech.  Sotomayor said:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.  Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.  I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle.  I am also not so sure that I agree with the statement.  First, as Professor Martha Minnow has noted, there can never be a universal definition of wise.  Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

This view on the ability of certain judges to make “better” conclusions is disconcerting.  I am a realist.  I can understand how a person’s life experiences may cause them to be more understanding of or more sympathetic to certain people or causes.  But the moment a judge steps into the courtroom, that judge should make a conscious effort to look at the facts of the case before him or her objectively and to make rulings based on the law, not on personal opinion.  But Sotomayor went even further than simply saying it is acceptable to let one’s life experiences supersede the law.  She went on to state that she has an inherent desire to believe that the life experiences of a wise Latina woman would make it more likely to reach a better conclusion than a white male who has had a different accumulation of life experiences.  Outrageous.  What if we were to change around Sotomayor’s statement to read, “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion that a minority female who hasn’t lived that life”?  The public would be outraged.  There would be calls of gender and race discrimination.  There should be similar outrage with Sotomayor’s statement.  As far as I’m concerned, a wise person will be more likely to reach a better conclusion than a less wise person would be, regardless of race or gender.  Wisdom is wisdom, regardless of who the person is.  That is the way things should be.

The second statement made by Sotomayor that concerns me is not cited in the media nearly as much as her “wise Latina woman” remark.  At a 2005 conference at the Duke University Law School, Sotomayor said:

All of the legal defense funds out there, they are looking for people with Court of Appeals experience because the Court of Appeals is where policy is made.  And I know this is on tape and I should never say that because we don't make law.  I know.  Okay, I know.  I'm not promoting it, and I'm not advocating it. You know.

Sotomayor ended her statement by laughing.  From what I was always taught, the legislature makes the laws, and the courts interpret the laws.  The fact that Sotomayor appears to laugh off this basic notion scares me.  It indicates to me that she is an activist judge, who, if confirmed, will be an activist Supreme Court Justice.  She will try to push forward her own agenda via her position on the bench.  I don’t want my laws being created by judges.  I want my laws being created by elected officials in the legislature.  During her confirmation hearings, I look forward to Sotomayor explaining exactly how she sees the role of the courts with regards to the concept of making policy.

The last big picture issue that I have with Sonia Sotomayor stems from a quote of hers from the early 1990s.  Sotomayor said:

I am a product of affirmative action.  I am the perfect affirmative action baby.  I am a Puerto Rican, born and raised in the south Bronx and from what is traditionally described as a socio-economically poor background.  My test scores were not comparable to that of my colleagues at Princeton or Yale.  Not so far off the mark that I wasn't able to succeed at those institutions… But if we had gone through the traditional numbers route of those institutions, it would have been highly questionable whether I would have been accepted.

She went on to say that there are cultural biases built into testing and the attempt to balance out those effects was one of the motivations behind affirmative action.  Clearly, Sotomayor believes that affirmative action is a good thing.  I most definitely do not.  There comes a time when people need to stop making excuses.  In life, decisions need to be made, and criteria are often set forth from which to make decisions.  To give any race a leg up over another for no other reason than simply being that race is not fair.  It is discrimination, plain and simple.  I firmly believe in judging a person for who they are, not by the color of their skin.  I cannot support holding anybody back because of their race.  And by that same reasoning, I cannot support giving anybody an advantage because of their race.  The fact that Sotomayor believes differently on this basic notion of fairness causes me to be leery about her ability to make any sort of wise decisions.

As Sonia Sotomayor’s confirmation hearings begin, I am sure that other issues will arise.  Her notable rulings in various cases will be scrutinized.  I am confident that I will believe that she ruled properly in some of those decisions and that she ruled improperly in others.  But from what I have already seen about her broad outlook of the role of a judge, I am certain that Judge Sotomayor is most definitely not the best candidate to replace David Souter as the next Associate Justice of the Supreme Court of the United States.