Conservatives media have falsely suggested that Justice Sonia Sotomayor testified untruthfully about her views on the Second Amendment and have used that false allegation to suggest that people should not believe Elena Kagan's testimony during her confirmation hearing.
The false allegation is based on (1) the fact that Sotomayor testified at her confirmation hearing that she "accepted" the Court's earlier decision that the Second Amendment created an individual right and (2) the fact that yesterday she dissented from a case that extended gun rights to states and local governments.
In fact, there is no inconsistency between Sotomayor's testimony and the dissent she joined yesterday on gun rights issues. The dissent she joined was critical of the reasoning in the Court's 2008 majority opinion in District of Columbia v. Heller -- the case that found that the Second Amendment protects an individual right to bear arms. But the dissent did not call for Heller to be overruled. Rather, the opinion stated that the individual right to bear arms should not be applied to state and local laws.
Moreover, the context of Sotomayor's testimony at her confirmation hearing makes clear that she was saying "accepted" the decision as a federal appellate judge -- the job she held at the time. Sotomayor was not that she would vote to uphold Heller as a Supreme Court justice.
Indeed, when discussing gun rights issues, Sotomayor testified that she "would not prejudge any question that came before me if I was a justice on the Supreme Court."
A post by Gary Marx on National Review Online's Bench Memo blog stated:
According to their narrative, Sotomayor was a restrained and non-ideological jurist who would faithfully apply the law and the original meaning of the Constitution. During her hearings, nominee Sotomayor did her best to perpetuate that idea.
On the Second Amendment, Justice Sotomayor took the absurd step of pointing out that "one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller." According to Sotomayor, "I understand that how important the right to bear arms is to many, many Americans." But, as the McDonald decision demonstrates, she didn't understand it to be protected by the Constitution.
So what does this mean for the Kagan hearings? Expect a confirmation conversion, and don't buy it.
From Fox News' coverage of Kagan's nomination hearing:
BAIER: Question for you. Today's ruling on the gun rights issue: Take you back last year to Sonia Sotomayor's confirmation hearing. She was asked by Senator Leahy at that time quote "Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?" And Judge Sotomayor said, "yes, sir." Now she joined the dissent today, in which it was said "I can find nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as fundamental insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes." Do you see any disparity in that answer and her dissent today?
SEN. DIANNE FEINSTEIN (D-CA): Well, I have to read the case. I haven't had a chance to do that yet. It just came out. What I've done is register my surprise. I'm a former mayor. I've seen what guns can do.
But as the context of Sotomayor's confirmation hearing testimony shows, Sotomayor never testified that she would vote to uphold Heller but merely said she would accept and apply the decision as a lower court judge.
From Sotomayor's hearing:
LEAHY: Good. Let me (ph) talk to you about another decision that's been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it's an individual right.
LEAHY: I've owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting. Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you. And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?
SOTOMAYOR: It is.
LEAHY: And you accept and applied the Heller decision when you decided Maloney?
SOTOMAYOR: Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged, answered the -- a different question.
LEAHY: Well, that -- let me -- let me refer to that, because Justice Scalia's opinion in the Heller case expressly left unresolved and explicitly reserved as a separate question whether the Second Amendment guarantee applies to the states and laws adopted by the -- by the states.
Earlier this year, you were on a Second Circuit panel in a case posing that specific question, analyzing a New York state law restriction on so-called chuka sticks (ph), a martial arts device.
Now, the unanimous decision of your court cited Supreme Court precedent as binding on your decision, and that Supreme Court -- longstanding Supreme Court cases have held that the Second Amendment applies only to the federal government and not to the states.
And I noticed that the panel of the Seventh Circuit, including people like Judge Posner, one of the best-known very conservative judges, cited the same Supreme Court authority, agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. The Supreme Court has not held that applicable to the states.
Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states. And I understand that petitions asking -- seeking to have the Supreme Court revisit the question applied to the Second Amendment to the states are pending (inaudible) that case appears before the Supreme Court and you're there how you're going to rule, but would you have an open mind, as -- on the Supreme Court, in evaluating that, the legal proposition of whether the Second Amendment right should be considered fundamental rights and thus applicable to the states?
SOTOMAYOR: Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.
SOTOMAYOR: As you pointed out, Senator, in the Heller decision, the Supreme Court was addressing a very narrow issue, which was whether an individual right under the Second Amendment applied to limit the federal government's rights to regulate the possession of firearms. The court expressly -- Justice Scalia in a footnote -- identified that there was Supreme Court precedent that has said that that right is not incorporated against the states. What that term of incorporation means in the law is that that right doesn't apply to the states in its regulation of its relationship with its citizens.
In Supreme Court province (ph), the right is not fundamental. It's a legal term. It's not talking about the importance of the right in a legal term. It's talking about is that right incorporated against the states
When Maloney (ph) came before the Second Circuit, as you indicated, myself and two other judges read what the Supreme Court said, saw that it had not explicitly rejected its precedent on application to the states and followed that precedent because it's the job of the Supreme Court to change it.
SOTOMAYOR: You asked me -- I'm sorry, Senator. I didn't mean...
LEAHY: No, no, go ahead.
SOTOMAYOR: ... to cut you off.
LEAHY: No, go ahead.
SOTOMAYOR: If you asked me whether I have an open mind on that question, absolutely. My decision in Maloney (ph) and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue. And I would not prejudge any question that came before me if I was a justice on the Supreme Court.
Finally, unlike Sotomayor, Justice Clarence Thomas has specifically reversed himself on at least one position that he took as a nominee. During his 1991 confirmation hearings (available here), Thomas stated: "My view is that there is a right to privacy in the 14th Amendment." And Thomas specifically testified that one of the concurring justices took the right approach in the landmark Griswold v. Connecticut case -- which struck down a ban on married couples purchasing contraceptives -- was correct, saying "I believe the approach that Justice Harlan took in Poe v. Ullman and again reaffirmed in Griswold in determining the -- or assessing the right of privacy was an appropriate way to go."
But in a dissent in Lawrence v. Texas, the case that struck down Texas' sodomy statute, Thomas took the opposite opinion, endorsing the dissenter's view in Griswold that there is no "general right of privacy." Thomas' dissent in Lawrence states:
I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.