SCOTUS Pick Sotomayor and the 2nd Amendment

[coleman]

http://www.newsmax.com/insidec...al&promo_code=807F-1


Sotomayor Hostile to Gun Rights, Scholar Says

Wednesday, May 27, 2009 1:04 AM



Federal appeals court Judge Sonia Sotomayor has over the years developed what some experts are calling a ‘troubling’ record on Second Amendment issues.

In January, President Obama’s nominee to the Supreme Court joined an opinion, Maloney v. Cuomo, that ruled that the Second Amendment does not apply against state and local governments, according to Reason magazine.

The case dealt with a New York ban on various weapons, including nunchucks. After last year's District of Columbia v. Heller, which struck down DC's handgun ban, attention turned to whether state and local gun control laws might violate the Second Amendment as well.

"It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

But that Second Circuit ruling ran counter to a Ninth Circuit decision last month in Nordyke v. King, which upheld the Second Amendment as a deeply held right embodied in the Constitution that transcends state law.

“We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition," the Ninth Circuit ruling said. “Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’ Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. 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.”

The contrasting opinions suggest that the issue is almost certainly going to go before the high court in the near future. What role might soon-to-be Justice Sotomayor play? Gun rights scholar and Independence Institute Research Director Dave Kopel told Reason that Sotomayor's 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."

 

[norad45]

Imagine the uproar there would have been at his confirmation hearings if, sometime in his past, Justice Roberts had said the following--in any context:

"I would hope that a wise European man with the richness of his experiences would more often than not reach a better conclusion [as a judge] than a latina woman who hasn't lived that life."

 

[USAF385]

Originally posted by norad45:
Imagine the uproar there would have been at his confirmation hearings if, sometime in his past, Justice Roberts had said the following--in any context:

"I would hope that a wise European man with the richness of his experiences would more often than not reach a better conclusion [as a judge] than a latina woman who hasn't lived that life."

+1!

No matter what context in which that was said, there would have been such outrage.

 

[coleman]

Sotomayor Ruled That States Do Not Have to Obey Second Amendment
Thursday, May 28, 2009
By Matt Cover


President Barack Obama looks on as his Supreme Court nominee Sonia Sotomayor speaks in the East Room of the White House in Washington, Tuesday May 26, 2009. (AP Photo/Pablo Martinez Monsivais )
(CNSNews.com) – Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.

In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.

The opinion said that the Second Amendment only restricted the federal government from infringing on an individual's right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois.

“It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,” said the opinion. Quoting Presser, the court said, “it is a limitation only upon the power of Congress and the national government, and not upon that of the state.”

The Maloney v. Cuomo case involved James Maloney, who had been arrested for possessing a pair of nunchuks. New York law prohibits the possession of nunchuks, even though they are often used in martial arts training and demonstrations.

The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said 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 Second Amendment, the Supreme Court ruled, “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.’”

“There seems to us no doubt,” the Supreme Court said, “that the Second Amendment conferred an individual right to keep and bear arms.”

Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right--and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local--the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

“And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls.”

In its 2008 case, the Supreme Court’s took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state’s ability to outlaw private militia groups.

“Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations,” the court ruled. “This does not refute the individual-rights interpretation of the Amendment.”

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

The Fourteenth Amendment reads, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

Sotomayor’s decision rejected the Fourteenth Amendment’s incorporation doctrine as far as Second Amendment was concerned, saying any legislation that could provide a “conceivable” reason would be upheld by her court.

“We will uphold legislation if we can identify some reasonably conceived state of facts that could provide a rational basis for the legislative action. Legislative acts that do not interfere with fundamental rights … carry with them a strong presumption of constitutionality,” the appeals court concluded. “The Fourteenth Amendment,” she wrote, “provides no relief.”

Sotomayor’s ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case 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.

“We therefore conclude that the right to keep and bear arms is deeply rooted in this Nation’s history and tradition,” said the Ninth Circuit court of Appeals. “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.”

Gun Week Senior Editor Dave Workman told CNSNews.com that the Nordyke and Maloney decisions are at odds and the Supreme Court, possibly with a Justice Sotomayor, may soon sort them out.

“Whenever you have a conflict like this, you’re likely to have it end up before the Supreme Court so they can decide the issue. If the Second Amendment is incorporated into the states, it’s going to jeopardize thousands of local gun laws, and the people who supported those gun laws are just freaked about that.”

 

[chip357]

http://www.foxnews.com/politic...nservative-backlash/

This concerns me greatly

 

[coleman]

http://www.stoptheaclu.com/200...ayor-la-raza-member/

Sotomayor ‘La Raza member’

Barack Obama has picked a radical for his nominee to the Supreme Court. If her own statements are not enough to convince you of her racist attitude, perhaps the fact she belongs to an anti-white extremist group known as La Raza will.

 

[Louis]

Based on things I've read so far, I've developed a negative view of this person's objectivity in deciding cases. Sad thing is, she might not be as bad as those in line behind her for nomination.
Louis

in WashingtonTimes.com:

EDITORIAL: The franchise for felons

Supreme Court nominee Sonia Sotomayor wants to give jailbirds the right to vote. It's her opinion that the federal Voting Rights Act can be used to force states to allow voting by currently imprisoned felons. Ms. Sotomayor's dissenting opinion in a 2006 felon-voting case should make senators extremely wary of confirming her for the high court.

In Hayden v. Pataki, a number of inmates in New York state filed suit claiming that because blacks and Latinos make up a disproportionate share of the prison population, the state's refusal to allow them ballot access amounts to an unlawful, race-based denial of their right to vote. Eight of 13 judges on the liberal-leaning Second Circuit dismissed their arguments, and the 11th Circuit Court of Appeals ruled likewise in a similar case.

Yet, operating on a dubious and extremely broad reading of the Voting Rights Act, Ms. Sotomayor dissented from the decision. In a remarkably dismissive, four-paragraph opinion, she alleged that the "plain terms" of the Voting Rights Act would allow such race-based claims to go forward.

Judge Jose Cabranes, who like Ms. Sotomayor was appointed by President Bill Clinton, didn't find the matter to be so clear. His majority decision against the criminal felons, in favor of the state, comprised 36 tightly reasoned pages. Particularly compelling is the fact that the Voting Rights Act was passed to help further the aims of the Constitution's 14th and 15th Amendments. The 14th Amendment specifically allows states to deny the vote to those convicted of crimes.

Ms. Sotomayor is thus in the position of asserting that Congress can prohibit New York from doing something the Constitution itself specifically endorses. It's as if she thinks black and Hispanic felons are convicted in order to deny them the vote, rather than that they are denied the vote as a result of being duly convicted. Her position ignores the fact that it is the convicts' own actions, their crimes - not any state-based racial discrimination - that make those felons ineligible to vote.

As almost every state has done since the United States was founded, New York forbids currently incarcerated or paroled prisoners from voting. Some states go even farther by prohibiting some felons from voting even after they have served their sentences. New York's law is not so stringent. It only applies to felons still under criminal sentences. It equally applies to all felons, black or white.

There is growing evidence that Judge Sotomayor believes some races are more equal than others. She said in a 2001 speech that she would expect a Latina judge to reach the right decision more often than would a white male judge. Her dissenting opinion in Hayden v. Pataki is another example of her taking racial grievance-mongering to absurd new depths. They are depths unbefitting a Supreme Court justice.

 

[BarbC]

By Sotomayor's line of reasoning in Maloney, each and every federal right would be subjected to the whims of the states.

Dazzling legal brilliance she has not.


Here is an interesting blurb from a book review of LEADERS OF THE PACK: POLLS & CASE STUDIES OF GREAT SUPREME COURT JUSTICES, by William D. Pederson and Norman W. Provizer


The final chapter in LEADERS OF THE PACK is a provocative essay by David Schultz titled, "Why No More Giants on the Supreme Court: The Personalities and the Times." Schultz asserts that two characteristics make a justice great: 1) "creat[ing] a new paradigm for him or herself, the Court, or the law," and 2) the ability to "persuade others, on the Court, in government, and in society to adopt a particular perspective on the law" (p.264). He cites John Marshall, Joseph Story, Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Hugo Black, Earl Warren, and William Brennan, as examples of justices who succeeded in this regard.

Schultz then evaluates the current justices against these two characteristics and concludes that none of them have the potential for greatness. He suggests three primary reasons for this. First, they are serving "at a time when there is a diminished expectation of stated desire for them and the Court to engage in major jurisprudence or legal thinking" (p.270). Second, the post-Bork confirmation process has contributed to the selection of justices who are "confirmable," not because of their intellectual ability. Schultz writes, "This is not to imply that these justices are idiots, but instead to suggest that an important reason for their being on the Court is that they were deemed acceptable and that they would be worthy delegates for the president who nominated them" (p.271). The third factor is that legal education in the post-World War II era is more technically focused than oriented to the liberal arts. Schultz sums up his pessimism about the future in the first paragraph of his conclusion: "There are no giants on the Supreme Court today and the prospect is that for the foreseeable future that will remain true. Many structural and ideological forces are at work that make it difficult for a new giant to emerge, or for any of the current justices to rise to that level" (p.273).

 

[Grandma]

Originally posted by chip357:
http://www.foxnews.com/politic...nservative-backlash/

This concerns me greatly

The last line of this article is very disturbing and concerns me greatly as to what will be left of our constitiution when they are finished "interpeting" it.

White House Press Secretary Robert Gibbs said Thursday that Obama was <u>"very comfortable with her interpretation of the Constitution being similar to that of his."</u>

 

[coleman]

Miguel Estrada

And if Democrats insist on playing identity politics, I suggest a two-word response: Miguel Estrada, the Honduran immigrant with his own rags-to-riches story whose nomination to the D.C. Circuit Democrats successfully filibustered, effectively preventing George W. Bush from naming the first Hispanic Supreme Court justice.
http://www.cnn.com/2009/POLITI....identity/index.html