Sotomayor: latinas, guns, and werewolves

July 5, 12:33 PMDC Gun Rights ExaminerMike Stollenwerk

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18th century engraving of a werewolf

Opponents of United States Supreme Court nominee Sonya Sotomayor have grounded their position in Sotomayor's alleged racial bias pointing to speeches in which she says things like "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."  But that dog's probably not gonna hunt.

The reality is that almost every modern American institution including corporate America, the military, and academia have been publicly cheering on women and minorities in public forums, literature, programs seeking to improve workplace performance by leveraging diversity, etc. for decades.  It's frankly a mainstream, widely accepted, and not a completely meritless phenomena.  If opponents of Sotomayor think they are going to be able to play musical chairs with her on this issue at Sotomayor's confirmation hearing, its they who will look foolish.

These opponents might also think that they can point to the recent Supreme Court's 5-4 reversal of the Second Circuit panel decision in Ricci v. DeStefano in which Sotomayor  joined both other judges in allowing New Haven, Connecticut to discard "the results of promotion exams because black candidates had scored poorly."  But here, Sotomoyor stands with the majority of the 13 judges in the case who considered the matter on the merits, making it hard to say that Sotomayor was very far off the judicial reservation.

But Sotomayor detractors do have some effective ammunition from her gun rights jurisprudence should they choose to deploy it. 

In the 2004 case of United States v. Sanchez-Villar Sotomayor joined a panel decision admitting that "[u]nder New York law, it is a crime to possess a firearm" but then summarily rejecting, without analysis and by way of a mere terse footnote, "Sanchez-Villar's argument that New York's statutory scheme offends the Second Amendment of the United States Constitution. See U.S. Const. amend. II; United States v. Toner, 728 F.2d 115, 128 (2d Cir.1984) (stating that 'the right to possess a gun is clearly not a fundamental right')."

There are two shocking problems with the Sotomayor panel opinion in Sanchez-Villar. 

First, instead of rejecting Sanchez-Villar's Second Amendment claim as precluded by existing Supreme Court holdings that the Second Amendment was not yet incorporated to apply to constrain state power, the opinion went out of its way to reject the Second Amendment claim outright as irrelevant citing to a federal case, United States v. Toner, which said that the Second Amendment did not protect a "fundamental right."  This was an uncalled for pot shot at the Second Amendment which was not applicable to New York, a state, in the first place.

Second, Sotomayor and crew did not analyze Sanchez-Villar' Second Amendment claim at all.  Contrast this with Toner where, even though the Defendant conceded that his Second Amendment claim merited only rational basis scrutiny (as a non-fundamental right), it took the court four full paragraphs (not footnotes) to apply rational basis to Mr. Toner, an illegal alien criminal, and conclude that the Second Amendment did not stand as a bar to his prosecution for unlawful gun possession in his particular circumstances.

Having gone out of their way to pick on the Second Amendment, the Sotomayor panel's failure to even go through the motions to apply the rational basis test to the onerous New York statutory scheme is particularly outrageous.  It was tantamount to saying that the Second Amendment provides no individual right at all, an idea rejected by the Second Circuit law Toner.

This is clear evidence of Sotomayor's judicial activism and animus against the Second Amendment by way of gross misapplication of prior authority.  As Judge Silberman wrote for the DC Circuit in Parker v. District of Columbia (affirmed in District of Columbia v. Heller):

"In Toner, the court stated only that the Second Amendment right was not "fundamental." Id. at 128. The opinion in no way addressed the question whether the Second Amendment requires that use and possession of a weapon be for civic purposes. We are not aware of any Second Circuit decision that directly addresses the collective versus individual nature of the Second Amendment right. See Silveira, 312 F.3d at 1063 n. 11 (noting that only the Second and D.C. Circuits had yet to decide nature of Second Amendment right)."

In essence, the Sotomayor panel unnecessarily tee-ed up the Second Amendment issue only so it could take a swing at bashing the Second Amendment as providing no individual right at all.   This opinion contradicted not just Second Circuit law but also the Supreme Court's pre-Heller but post-Miller Supreme Court decision of Johnson v. Eisentragger where the Court treated the Second amendment as providing a companion individual right to all of our other rights, but just not applicable to enemy combatants and, of course, werewolves:

"If the Fifth Amendment confers it rights on all the world except Americans engaged in defending it, the same must be true of the companion civil rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that, during military occupation, irreconcilable enemy elements, guerrilla fighters, and "were-wolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments."

In sum, Sotomayor's joining of the Sanchez-Villar opinion's preemptive ambush on the Second amendment is a smoking gun example of her stealth activism against gun rights.  This objection to Sotomayor may not be as sexy as a speech about latinas or a ruling against white firemen, and it may not be a silver bullet capable of taking on werewolves, but at least its on-point and relevant to the open question of Sotomayor's worthiness to be a lifetime decider of the rights of Americans.