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July 15, 2009

Sonia Sotomayor Gets It Wrong On Gun Rights

by Doug Mataconis

During the course of her confirmation hearing today, Sonia Sotomayor had a very interesting exchange with Senator Tom Coburn over the right to keep and bear arms:

In a prickly exchange over gun control, Sen. Tom Coburn tried hard to get Sonia Sotomayor to explain what she actually thinks about the right to bear arms. “As a citizen of this country do you believe … I have a right to personal self-defense?” he asked her.

Sotomayor said she couldn’t think of a Supreme Court case that had addressed the issue in that language. “Is there a constitutional right to self-defense?” she asked. “ I can’t think of one. I could be wrong.”

The Oklahoma Republican said he didn’t want to know if there was a legal precedent that would answer his question — he wanted to know Sotomayor’s personal opinion.

She paused. “That is sort of an abstract question,” she said. “I don’t –”

“Well that’s what the American people want to hear,” Coburn said. Americans don’t want legalese from “bright legal minds,” he said. “They want to know if they can defend themselves in their homes.”

Sotomayor paused and then apologized. “I know it’s difficult to deal with someone who is a judge,” she said. “Let me try to address what you’re saying in the context that I can, OK?”

She went on to explain a hypothetical case – and the way she’d interpret it under New York law (the state whose law she knows best). The state allows someone to defend themselves if they fear an imminent threat. Let’s say, she told the senator, that Coburn threatened her and then she went home, got a gun and shot him.

“You’d have a lot of explaining to do!” Coburn said.

Here’s the video of the exchange:

One wonders if someone needs to give Sotomayor a copy of the majority opinion in D.C. v. Heller:

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5Yer. 356, 360 (Tenn. 1833).

(…)

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

(…)

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.

Apparently, Sotomayor hasn’t read Heller at all.

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  • http://qwertya;tofuori.blogspot.com Red

    Never have I hoped so hard for a FAIL.

  • http://syd624.appspot.com/ syd

    Confirm Judge Sonia Sotomayor already. Gees it’s so boring

  • Greg

    She isn’t there to answer questions about her feelings. Its her job to remain impartial and law-minded. So far, she’s kept that in mind, even if the Senators haven’t.

    The Senators keep asking politically motivated questions, when they should be asking questions tailored to what the hearings are about: Legal Competence.

    These questions suggest a political witch-hunt reminiscent of McCarthyism. The question shouldn’t be “Is she an evil liberal?” the question is simply “Is she qualified?”

    So much attention has been paid in these hearings to a single comment made years ago, out of court (at a conference about gender and race), to try and paint her as a racist. If that’s the worst thing they can find, She’s a keeper.

  • southernjames

    “She’s a keeper!” That is certainly one opinion.

    Here’s another:

    http://article.nationalreview.com/?q=NDFlZDJiOWIxNDAzZDliOGEyMTY5ZWFjYmM0Yzk1Yzk=#more

    Yeah! They should JUST ask if she is “qualified.” Like they did for Miquel Estrada, John Roberts, Clarence Thomas, and…..oh wait. Never mind.

    Here’s a law professor’s comments – a guy who most certainly is not a “right winger” by any stretch of the

  • southernjames

    Sorry – hit submit in error:

    Here’s a law professor’s comments – a guy who most certainly is not a “right winger” by any stretch of the imagination:

    “Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional careers?
    Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.”

    Prof. Louis Michael Seidman
    Georgetown University Law Center

  • Sharon

    “Uh,… I-I know it’s difficult to deal with someone as a… like a judge who… who’s so… sort of… whose thinking is so cornered by law,” means what exactly? I ask my doctors and dentist all the time what they would do if they were me, and they never have a hard time giving me their opinion, as Sonia Sotomayor apparently does. If Sotomayor can’t answer a “simple yes or no question” as Sen. Coburn posed, how can anyone expect her to make clear-headed decisions on the Supreme Court level?
    She sounds like a typical “beat around the bush” political candidate to me.

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