Pasifikawv
Member
Sen. Coburn and Hon. Sotomayor discuss 2nd Amendment:
COBURN: ...So the -- the question I'd like to turn to next is in your ruling, the 2nd Circuit ruling on -- and I'm trying to remember the name of the case -- Maloney, the position was is that there's not an individual fundamental right to bear arms in this country. Is that -- is that a correct understanding of that?
SOTOMAYOR: No, sir.
COBURN: OK. Please educate me, if you would.
SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal -- the federal government could take with respect to the possession of firearms. In that case we're talking about handguns.
The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.
Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.
COBURN: Through the 14th Amendment.
SOTOMAYOR: Through -- and others. But the -- generally. I shouldn't say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with -- for us was a very narrow one. We recognized that Heller held -- and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.
The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense. That was the Court's holding.
COBURN: Did the Supreme Court say in Heller that it definitely was not? Or did they just fail to rule on it?
SOTOMAYOR: Well, they failed to rule on it. You're right.
COBURN: There's a...
SOTOMAYOR: But I...
COBURN: There's a very big difference there.
SOTOMAYOR: I agree.
COBURN: OK. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law in the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today?
SOTOMAYOR: It's not how I see the law.
COBURN: Well, as you see the interpretation of the law today? In your opinion of what the law is today, is my statement a correct statement?
SOTOMAYOR: No, that's not my interpretation. I was applying both Supreme Court precedent deciding that question and Second Circuit precedent that had directly answered that question and said it's not incorporated. The issue of whether or not it should be is different question, and that is the question that the Supreme Court may take up.
In fact, in his -- in his opinion, Justice Scalia suggested it should. But it's not what I believe. It's what the law has said about it.
COBURN: So what does the law say today about the statement? Where do we stand today about my statement that I have -- I claim to have a fundamental, guaranteed, spelled-out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?
SOTOMAYOR: I can't answer the question of incorporation other than to refer to precedent.
COBURN: OK.
SOTOMAYOR: Precedent says, as the Second Circuit interpreted the Supreme Court's precedent, that it's not -- it's not incorporated. It's also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. And by that I mean, what the Court with look at is a state regulation of your right.
COBURN: Yes.
SOTOMAYOR: And then determine can the state do that or not. So even once you recognize a right, you're always considering what the state is doing to limit or expand that right and then decide is that OK constitutionally.
COBURN: You know, it's very interesting to me. I went back and read the history of debate on the 14th Amendment. For many of you who don't know, what generated much of the 14th Amendment was in reconstruction. Southern states were taken away the right to bear arms by freedmen -- recently freed slaves. And much of the discussion in the Congress was to restore that right of the Second Amendment through the 14th Amendment to restore an individual right that was guaranteed under the Constitution.
So one of the purposes for the 14th Amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the Southern states post-Civil War.
COBURN: Let me move on.
In the Constitution, we have the right to bear arms. Whether it's incorporated or not, it's stated there. I'm having trouble understanding how we got to a point where a right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled fixed.
I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?
I don't want to tie you down on any future decisions, but how'd we get there when we can read this book, and it says certain things, and those aren't guaranteed, but the things that it doesn't say are?
SOTOMAYOR: One of the frustrations with judges and their decisions by citizens is that -- and this was an earlier response to Senator Cornyn -- what we do is different than the conversation that the public has about what it wants the law to do.
We don't, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution, and see what it says, and attempt to take its words and its -- the principles and the precedents that have described those principles, and apply them to the facts before you.
In discussing the Second Amendment as it applies to the federal government, Justice Scalia noted that there have been long regulation by many states on a variety of different issues related to possession of guns. And he wasn't suggesting that all regulation was unconstitutional; he was holding in that case that D.C.'s particular regulation was illegal.
As you know, there are many states that prohibit felons from possessing guns. So does the federal government.
And so it's not that we make a broad policy choice and say, "This is what we want -- what judges do." What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix.
All of that is the court's function, so I can't explain it philosophically. I can only explain it by its setting and what -- what the function of judging is about.
COBURN: Thank you.
COBURN: ...So the -- the question I'd like to turn to next is in your ruling, the 2nd Circuit ruling on -- and I'm trying to remember the name of the case -- Maloney, the position was is that there's not an individual fundamental right to bear arms in this country. Is that -- is that a correct understanding of that?
SOTOMAYOR: No, sir.
COBURN: OK. Please educate me, if you would.
SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal -- the federal government could take with respect to the possession of firearms. In that case we're talking about handguns.
The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.
Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.
COBURN: Through the 14th Amendment.
SOTOMAYOR: Through -- and others. But the -- generally. I shouldn't say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with -- for us was a very narrow one. We recognized that Heller held -- and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.
The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense. That was the Court's holding.
COBURN: Did the Supreme Court say in Heller that it definitely was not? Or did they just fail to rule on it?
SOTOMAYOR: Well, they failed to rule on it. You're right.
COBURN: There's a...
SOTOMAYOR: But I...
COBURN: There's a very big difference there.
SOTOMAYOR: I agree.
COBURN: OK. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law in the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today?
SOTOMAYOR: It's not how I see the law.
COBURN: Well, as you see the interpretation of the law today? In your opinion of what the law is today, is my statement a correct statement?
SOTOMAYOR: No, that's not my interpretation. I was applying both Supreme Court precedent deciding that question and Second Circuit precedent that had directly answered that question and said it's not incorporated. The issue of whether or not it should be is different question, and that is the question that the Supreme Court may take up.
In fact, in his -- in his opinion, Justice Scalia suggested it should. But it's not what I believe. It's what the law has said about it.
COBURN: So what does the law say today about the statement? Where do we stand today about my statement that I have -- I claim to have a fundamental, guaranteed, spelled-out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?
SOTOMAYOR: I can't answer the question of incorporation other than to refer to precedent.
COBURN: OK.
SOTOMAYOR: Precedent says, as the Second Circuit interpreted the Supreme Court's precedent, that it's not -- it's not incorporated. It's also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. And by that I mean, what the Court with look at is a state regulation of your right.
COBURN: Yes.
SOTOMAYOR: And then determine can the state do that or not. So even once you recognize a right, you're always considering what the state is doing to limit or expand that right and then decide is that OK constitutionally.
COBURN: You know, it's very interesting to me. I went back and read the history of debate on the 14th Amendment. For many of you who don't know, what generated much of the 14th Amendment was in reconstruction. Southern states were taken away the right to bear arms by freedmen -- recently freed slaves. And much of the discussion in the Congress was to restore that right of the Second Amendment through the 14th Amendment to restore an individual right that was guaranteed under the Constitution.
So one of the purposes for the 14th Amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the Southern states post-Civil War.
COBURN: Let me move on.
In the Constitution, we have the right to bear arms. Whether it's incorporated or not, it's stated there. I'm having trouble understanding how we got to a point where a right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled fixed.
I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?
I don't want to tie you down on any future decisions, but how'd we get there when we can read this book, and it says certain things, and those aren't guaranteed, but the things that it doesn't say are?
SOTOMAYOR: One of the frustrations with judges and their decisions by citizens is that -- and this was an earlier response to Senator Cornyn -- what we do is different than the conversation that the public has about what it wants the law to do.
We don't, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution, and see what it says, and attempt to take its words and its -- the principles and the precedents that have described those principles, and apply them to the facts before you.
In discussing the Second Amendment as it applies to the federal government, Justice Scalia noted that there have been long regulation by many states on a variety of different issues related to possession of guns. And he wasn't suggesting that all regulation was unconstitutional; he was holding in that case that D.C.'s particular regulation was illegal.
As you know, there are many states that prohibit felons from possessing guns. So does the federal government.
And so it's not that we make a broad policy choice and say, "This is what we want -- what judges do." What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix.
All of that is the court's function, so I can't explain it philosophically. I can only explain it by its setting and what -- what the function of judging is about.
COBURN: Thank you.
