La Raza Justice

President Barack Obama and Vice President Joe Biden walk to the East Room of the White House in Washington, Tuesday, May 26, 2009, with his Supreme Court choice Sonia Sotomayor before the president made the announcement. (AP Photo/Pablo Martinez Monsivais) 

What would you think of a Supreme Court Justice who would rule that the city of Atlanta could ban entirely the carry or possession of firearms, even in the home, without running afoul of the Constitution's "right to keep and bear arms?"

Enter Second Circuit Court of Appeals Judge Sonia Sotomayor.

President Obama announced this week that Judge Sotomayor is his pick to replace Justice Souter.  This has gun owners nationwide very concerned.  We need to look at a little history to see why.

Last year, the United States Supreme Court held in Heller that individual citizens have a right to keep arms in their homes and that a DC law banning functional firearms violated that right.  Most of the public assumed that this right was now protected from government interference, but they were wrong.  The Heller case applied only to DC, which means that the right was protected against federal interference since DC is a federal district.  The Supreme Court left unsettled the additional question of whether state and local governments could infringe upon the right to keep and bear arms. 

Since Heller, a number of cases have raised the issue of whether the right to keep and bear arms offers any protection against state and local legislation.  Only federal two courts of appeals have written opinions on the subject.   The Ninth Circuit  Court of Appeals, based in California, ruled that the Second Amendment applies to state and local legislation (Nordyke v. King).  The Second Circuit Court of Appeals, based in New York, held that the Second Amendment offers no protection against state and local infringement, and Judge Sotomayor sat on the panel that made that decision (Maloney v. Cuomo).

While most people commenting upon the Maloney v. Cuomo decision have focused upon the refusal to incorporate the Second Amendment against the state of New York, even more troubling is a comment on page 4 of the decision that there is no Fourteenth Amendment protection because the right to keep and bear arms is not a fundamental right. 

Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if rationally related to a legitimate state interest

 

The assumption here is that the right to bear arms is not a "fundamental right" and that therefore the court must apply a "rational basis" test, the lowest standard of review.  In making this ruling, the court committed two grave errors.  First, Heller clearly described the right to keep arms as fundamental.

By the time of the founding, the right to have arms had become fundamental for English subjects.

Second, while the Supreme Court in Heller refused to set out a clear standard of review, they categorically rejected the lowest "rational basis" standard of review, which means that any future test must be some higher standard.  Thus, while the Second Circuit claims to be following precedent, the judges utterly ignored Supreme Court precedent from 2008. 

Judge Sonia Sotomayor ought to have to answer for this in her confirmation hearings.  Dave Kopel of the Independence Institute observed that her opinions "demonstrate a profound hostility to Second Amendment rights. If we follow Senator Obama's principle that Senators should vote against judges whose views on legal issues are harmful, then it is hard to see how someone who supports Second Amendment rights could vote to confirm Sonia Sotomayor."

She claims to be guided on the judicial bench by wisdom derived from her "richness of experiences" that result only from her ethnicity and sex. 

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life.

Essentially, this statement means that white males, such as James Madison and Thomas Jefferson, reach inferior conclusions.  One wonders what the Senate confirmation hearings would be like for a white male nominee who uttered such words about "Latina woman" judges and their decision making capability.

Perhaps it is Judge Sotomayor's "richness of experiences" that lead her to believe that the "right to keep and bear arms shall not be infringed, except in the case of state and local governments, in which case they may not only infringe but utterly destroy the right."  If the Founders left that last part off, well, we can only conclude this was due to their lack of "richness of experiences," and U.S. Supreme Court Justice Sonia Sotomayor, once confirmed by the Senate, will soon correct their oversight for the entire nation, reaching her "better conclusion" as a "wise Latina woman."