Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times.
On Thursday (or perhaps, early on Friday), I will be testifying on the Kagan nomination. My written testimony will be posted by Wednesday morning, on my website.
Justice Sotomayor’s disappointing performance highlights the importance for Senators who care about Second Amendment rights learning more about Ms. Kagan’s actual views, and not settling for vapid platitudes about “settled law.”
Josh Bornstein says:
You make a fair point, but in real life, what do you think will happen. People will say (and not say) what is needed in order to be confirmed. It’s not ‘good’ but it is reality. Exactly like a nominee saying he will be like an umpire and then not doing that as a justice. Any liberal, conservative (etc.) who believes what the nominees say during the confirmation hearings is gullible beyond belief. I think everyone learned from Bork what can happen when you have the honesty (and hubris?) to state one’s position without nuance.
As I said, it’s not a good thing that we are where we are. But let’s at least admit that this is–to a very large part–purely political theatre. Senators should do their best to push and prod, in order to get to meaningful answers. But if you are or were expecting anything different from Roberts, Alito, Sotomayor, and Kagan, then you are destined to be perpetually disappointed. For me, now that both parties have succeeded in setting the bar so low, such (non-)answers merely get a resigned shrug and a “meh” from me.
June 29, 2010, 7:32 pmMike S says:
The link goes to page 2 of the article. It’s a bit confusing to start reading in the middle.
[DK: Thanks. Just fixed it. For some strange reason, the link kept resetting itself to page 2, even when I pasted in page 1. So I removed the bad text, rewrote the words, and pasted in a fresh link. That solved things.]
June 29, 2010, 7:34 pmtarpon says:
Well this is big news, Democrats have no discernible character. And apparently they don’t get any no matter what they are appointed to.
June 29, 2010, 7:36 pmPlugInMonster says:
Just ram through this nomination, like they are always done. Advise and consent my ass.
June 29, 2010, 8:01 pmSoup says:
Isn’t it perfectly consistent to say on the one hand that the 2d Amendment protects an individual right to bear arms, but on the other hand say that the purpose of this right, as the Framers understood it, was something other than to protect armed self-defense? (Maybe the Framers thought that there was an individual right to bear arms for the purpose of having a population familiar with guns so that militias would be more effective?)
June 29, 2010, 8:05 pmB.D. says:
She said Heller was settled law. Then she joined a dissent that called for overturning Heller.
To be consistent, she should have written separately to disagree with incorporation of the right recognized in Heller.
June 29, 2010, 8:19 pmBrett Bellmore says:
But it’s not consistent to say, on the one hand, that the 2nd amendment protects an individual right to bear arms, and, on the other hand, deny every last specific application of that right. And yet, that is the standard position among Democratic nominees to the bench, and is the position of every last Democratic nominee on the Supreme court.
The simple fact is, as inconvenient as it might be with a Democrat in the White house, and a Democratic majority in the Senate, that Sotomayor’s (entirely predictable) behavior highlights the importance of not letting Democrats appoint members of the Supreme court. Because that’s the behavior you’d get out of anybody who would plausibly be nominated by a Democratic President, or confirmed by a Democratic Senate.
June 29, 2010, 8:26 pmSee also says:
This is such BS. Anytime the Supreme Court overrules one of its cases, it overrules “settled law.” How many times did Justice Alito and Chief Justice Roberts vote to overturn a precedent? Citizens United, to pick just one case. Now is anyone here accusing Roberts and Alito of contradicting their testimony, which no doubt pledged to pay due respect to precedent and settled law? If anything, there is a stronger case for overruling Heller as a matter of stare decisis (less reliance interest) than there was for overruling Austin as the Court did in Citizens United. I am so tired of the hypocrisy.
June 29, 2010, 8:42 pmSoup says:
Did Breyer’s dissent call for overturning Heller? Looking at the first sentence at IIA of the dissent, I see this quote. “In my view, taking Heller as a given, the Fourteenth Amendment does not incorporate the Second Amendment right to keep and bear arms for purposes of private self-defense.”
The dissent takes Heller as a given!
As for the Part I of the decision, it seems consistent for someone to say that, although Heller was settled law at the time, because it relied on a historical analysis, any changes in the court’s understanding of history might change the underpinnings of the Heller holding. If history settled the matter, history can unsettle it.
June 29, 2010, 8:44 pmpublic_defender says:
Maybe Kopel would have been happy if she had written a separate opinion that said:
And even that assumes that Udall is accurately reporting his conversation with the then-nominee. Is Udall’s recollection the only evidence we have of that conversation?
June 29, 2010, 8:45 pmbill says:
Roberts said Roe was “settled law”, yet at the same time it was rather obvious he would vote to overturn it. The only one who looks like a hypocrite is you.
June 29, 2010, 8:46 pmbyomtov says:
vapid platitudes about “settled law.”
Or about “calling balls and strikes” either.
June 29, 2010, 8:48 pmArthur Kirkland says:
The “Heller as a given” point not only takes the starch out of this thread, but also will provide an interesting comparison when (if) the “callers of balls and strikes” ever get a good pitch to hit against Roe.
If Coach Obama gets to arrange a few more lineup changes, however, those “umpires” might wait in vain.
June 29, 2010, 8:50 pmGlen says:
The Senate could reject nominees that endlessly equivocate. This would likely require a bipartisan consensus, so a nominee that caused anxiety on both the Left and the Right would be good candidate for such enhanced scrutiny (like Elena Kagan).
Alternatively, a Justice who ruled in direct contravention of their confirmation testimony could be impeached for perjury. While they might not be removed from the bench, an act of impeachment against a sitting Justice would set a powerful precedent that, if combined with a bipartisan consensus for greater candor in confirmation hearings, would encourage greater transparency on the part of nominees.
June 29, 2010, 8:50 pmGlen says:
Notwithstanding the vast difference between a speculative “would” vs. a confirmed “did?”
June 29, 2010, 8:53 pmAnym_Avey says:
It would require fantasy, actually. Democrats will parade Roe in front of any Republican nominee and Republicans will raise 2A issues to any Democratic nominee, and both nominees will always say the same thing in response, just as their predecessors said: “I recognize that those cases are settled law,” followed by quietly uncrossing their fingers under the table. A nominee saying plainly what he or she really thinks just guarantees that the opposition party must torpedo the nomination, so the only solution is for the Senate to maintain a gangland truce that accepts equivocation as a real answer for these flashpoints.
June 29, 2010, 8:58 pmCornellian says:
Perhaps you’d prefer each nominee commit to voting the way you’d like without the bother of listening to evidence or argument?
June 29, 2010, 9:17 pmrpt says:
We’ll see how you can work Justice Marshall into the testimony.
June 29, 2010, 9:26 pmB.D. says:
It took Heller as a given to express opposition to incorporation. It’s akin to assuming a position arguendo.
It wasn’t just Part I, either. The first sentence of the conclusion: “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.” The dissent was in no position to overturn anything, so it doesn’t really matter that there was no EXPLICIT call to overturn Heller — but the long discussion of how Heller was wrongly decided leaves no doubt as to what they would have done with one more vote.
Based on all this, I have zero confidence that Sotomayor considers Heller or McDonald “settled law.”
June 29, 2010, 9:29 pmcboldt says:
– Based on all this, I have zero confidence that Sotomayor considers Heller or McDonald “settled law.” –
June 29, 2010, 9:36 pmAs long as the outcome is not what the jurist prefers, “settled” is a temporary condition. She is free to say “It’s settled,” followed by “but given the chance, I’d reverse.” In other words, the answer “It’s settled” is a truism.
I agree with Brett Bellmore’s “that’s the behavior you’d get out of anybody who would plausibly be nominated by a Democratic President, or confirmed by a Democratic Senate.”
Soup says:
Justice Scalia’s opinion for the Court in Heller made quite explicit that he agrees with the part of the McDonald dissent that you quoted. The Opinion in Heller states “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”
The reason the right was codified, according to the Supreme Court in Heller, was to prevent the federal government from destroying the citizens’ militia, NOT to preserve a personal right of armed self-defense. (I recognize that the Court in Heller described the right itself as the right to armed personal self defense, but that personal right was apparently placed in the Constitution by the framers for another purpose, as Breyer and the other dissenters say.)
June 29, 2010, 9:43 pmJeff says:
You know what would be interesting…
If Presidents established a tradition of giving new SC justices recess appointments over the summer. Then the Senate would be able to look at an actual record of a Justice before voting on them for a permanent seat.
June 29, 2010, 9:44 pmAnderson says:
Shorter Kopel: Damn Sotomayor for not being a hack!
June 29, 2010, 9:44 pmRodger Lodger says:
I say the nominee should be hooked up to a polygraph during the confirmation hearing.
June 29, 2010, 9:46 pmMike S. says:
(Not the Mike S above, by the way)
June 29, 2010, 9:46 pmWell, actually, the quotes you cite from the public testimony (as opposed to the indirect quotes or the private conversation with Senator Udall) have her saying that she “understands” the right recognized in Heller. Not that she agreed with it or accepted it. Sure the process is vapid. On both sides of the isle. This is what comes from a politicized court. Kagan will get confirmed not because of what she does or doesn’t say but because the Democrats have a 58-41 edge.
Constantin says:
No, she’s a hack.
June 29, 2010, 9:58 pmStan says:
Kopel’s op-ed is idiotic nonsense. I hope he doesn’t embarrass himself that badly during his testimony
June 29, 2010, 9:59 pmJosh Bornstein says:
I haven’t heard much about this lately, but wasn’t there a small “Gang” of Dems and Repubs who had an agreement not to filibuster Sup. Ct nominations; at least, not outside extraordinary circumstances? I’ve been out of the country a lot over the past 6 years, so maybe this agreement was dissolved during this interim?
Sorry in advance if this was a stupid question, given that I ask it on a website populated by so many lawyers and law profs.
June 29, 2010, 10:03 pmBruce Hayden says:
This could be interesting: A Smoking Gun in the Kagan Case? We shall see how this plays out.
June 29, 2010, 10:04 pmcboldt says:
– but wasn’t there a small “Gang” of Dems and Repubs who had an agreement not to filibuster Sup. Ct nominations –
June 29, 2010, 10:08 pmThe Gang of 14. Their agreement was time limited to the then-running Congress.
There won’t be a filibuster of Kagan.
OrenWithAnE says:
Can we require the Palin/Pawlenty/Romney nominees to promise to uphold the settled Griswold/Roe/Lawrence line of cases or is this a one way street?
June 29, 2010, 10:18 pmcboldt says:
– This could be interesting: A Smoking Gun in the Kagan Case? –
June 29, 2010, 10:21 pmThat will make some smoke, but won’t get enough traction to derail confirmation. The two sentences in question aren’t contradictory, and the APOC signed off on its report. That the report omitted the statement that alarmed Kagan, “not the only procedure,” isn’t necessarily material. I don’t know if that finding was obtained, even though it wasn’t contained in the final report.
OrenWithAnE says:
Perhaps some sort of novel political coalition that respects both gun rights and sexual freedom will obviate the need for these sort of mental gymnastics.
Until then, just grit your teeth and decide which of your rights is more important today …
June 29, 2010, 10:28 pmRedlands says:
Fair question. Has a conservative Justice argued in a published opinion that any of those cases should be overruled?
June 29, 2010, 10:28 pmGuy says:
It’s been a while since I watched the confirmation hearings, but I think she carefully avoided saying whether she would vote to overturn it (as she was ethically obligated to avoid saying), she said it was precedent that deserved the respect of stare decisis that all cases deserve. I don’t know what can be reasonably expected, public_defender more or less has it right. To the extent that senators were trying to extract information from her about how she would rule in gun rights cases, they simply had no right to have that information given to them, and she rightly gave an ambiguous answer.
June 29, 2010, 10:33 pmOrenWithAnE says:
Yes, Scalia remains rather miffed over Lawrence.
June 29, 2010, 10:33 pmDaily Pundit » Shocker! says:
[...] The Volokh Conspiracy » The Sotomayor switcheroo, and the Kagan nomination Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times. [...]
June 29, 2010, 10:36 pmOrenWithAnE says:
Why not exactly? How is the Senate to advise on a nominee if they are entitled to withhold basic information like that?
June 29, 2010, 10:47 pmGuy says:
Has Justice Scalia ever argued in a published opinion that Roe should be overturned? You clearly don’t make a regular habit of reading Justice Scalia’s opinions. And let’s not even get started on Justice Thomas, who is the only Justice to regularly dissent from FAA cases from state courts on the grounds that Southland v. Keating was wrongly decided, that’s not a “sexy” issue but it is indicative of Justice Thomas’ general disregard for any precedent he disagrees with. I’m not saying a Justice can’t ever vote to overturn precedent, but overturning and eroding precedent is something we generally see more often from the conservatives (in fairness to them, this pattern is an expected consequence of the Court’s recent rightward shift in the last couple decades, a leftward shift would presumably result in liberals being the ones who run up against opposing precedent more often).
June 29, 2010, 10:57 pmArtifex says:
Wouldn’t the simplest thing to solve the problem is automatically vote to reject any judge with insufficient track record ? If federalist approach matters to you, and they haven’t given you cause to trust they will vote in that fashion, punt them. Do the same if you favor a more progressive approach and the judge is insufficiently creative with the law.
This theater in which candidates woo the legislature by saying as little as possible is a bit on the silly side.
June 29, 2010, 11:01 pmBama 1L says:
Will that decision come up? Please? There seemed to be some momentum for overturning it legislatively.
June 29, 2010, 11:10 pmRedlands says:
Ah, like Justice Breyer’s miffing opinion in McDonald. I get it.
June 29, 2010, 11:19 pmORID says:
Can’t we just stop pretending that we live under a government with 100 independent Senators, 435 independent Representatives, and an independent President? The only way we might get an interesting and useful government is if we split the Senate 50-50 (or maybe 53-47 opposite the President?), and split the House (perhaps a shade against the President as well).
The only way we’ll get honest people is… well I dunno. It seems running a political campaign requires a minimum level of shifty-shaky-mudflingingness and deception, almost the same type of deception we ask out of the Supreme Court nominees. I propose that leading up to any election in our democracy the candidacy have to spend at least 100 hours getting grilled by the citizens the same way they get to grill all their witnesses.
Hey, why don’t the corporate media or academics actually point these things out instead of pretending things run the way we ideallicly thing they do?
June 29, 2010, 11:31 pmleo marvin says:
I’ll bet the pro-lifers would permit an abortion for any woman who agreed to perform it with a gun.
June 29, 2010, 11:33 pmGerbilsbite says:
I just watched Scalia’s confirmation hearings on C-Span.org. You know, the one where he describes himself as a “moderate” with a strong respect for stare decisis.
Just sayin’.
June 29, 2010, 11:35 pmKopel to Testify at Kagan Hearing | Snowflakes in Hell says:
[...] Glad to hear Dave will be up on the Hill before the Judiciary Committee. Dave is not a Board member,but is friendly among NRA circles. Tomorrow on Red State: ”Chris Cox seen boarding a flight to Denver with leg irons and a roll of duct tape.” [...]
June 29, 2010, 11:37 pmGordon Langston says:
Supreme Court decisions have a feeling like World Cup matches. So many competing interests, so many flawed actors and officials.
My only answer to this I humbly borrow from our President…”We won.”
June 29, 2010, 11:56 pmOrenWithAnE says:
Indeed it is. I imagine that the liberal wing will be keen to ‘distinguish’ McDonald as soon as Scalia or Kennedy croaks.
June 29, 2010, 11:59 pmChris Travers says:
The nice thing about the term “moderate” is that it’s quite subjective. Anyone can honestly consider themselves moderates :-)
Everyone hears someone describe him/herself as “moderate” and assumes “that person is like me.” However, the only person that perspective works for is the speaker.
June 30, 2010, 12:12 amSteve says:
The idea of a judicial nominee being forced to make “campaign promises” about affirming or overturning a particular precedent is just misguided on so many levels. What a poor excuse for an independent judiciary we’d have if we ever went down that road.
June 30, 2010, 12:16 amAllan Walstad says:
It’s not clear to me why any wrongly-decided case should not be overturned. But if you are prepared to overturn it, then to you it’s not “settled law,” is it? I’m not really up on the historical details, but wasn’t there a time when SC appointments went through with little debate? When did this become so politicized?
Since it is politicized, I think the best way for 2A supporters to deal with Sotomayor’s apparent flip-flop is in fact politically, to use it to keep turning out the pro-gun vote. We don’t need more President Obamas making SC nominations, and we don’t need Senates willing to approve candidates who lack a clear record of supporting 2A.
June 30, 2010, 12:22 amRon says:
So a nominee lies about her views on a case to get confirmed, and then lies about supporting and defending the constitution, like most eleted officials do. Sad what we have become.
June 30, 2010, 12:23 amArthur Kirkland says:
Of course not — we already have one, and one is all we need at the moment. Two more nominations ought to be about right.
June 30, 2010, 12:51 amLarryA says:
This is the holy grail of gun control. Guns hurt people. The balance is that, used in self-defense, they also prevent violence and save lives.
Take away the self-defense balance and gun rights can be legislated away. Hunting and target shooting are recreation, and can’t offset the potential violence. Militia? Keep the guns in armories. Oppose tyranical government? For liberals there is no such thing, at least while they’re in charge.
The fact that making self-defense illegal, as Britain has done, invariably leads to escalating violence doesn’t seem to register.
June 30, 2010, 1:06 amORID says:
I’m waiting for a state to ban cars….how about a ban on “bad” cholesterol?
June 30, 2010, 1:42 amNI says:
The cold, hard reality is that elections matter, and why is anyone surprised that a liberal president is appointing liberal justices? Liberals suffered through Reagan, Bush I and Bush II appointments; the pendulum has now swung (at least for the time being), and that’s the way the system works. You want conservative justices, elect another conservative president. Meanwhile, don’t act shocked that no one from the Federalist Society is on Obama’s short list.
June 30, 2010, 2:02 amDavidicus says:
Actually there was no contradiction at all. See the following:
.
http://www.nightchicken.com/2010/06/justice-sotomayor-then-and-now.html
.
June 30, 2010, 2:49 am~aardvark says:
You’re giving Kopel far too much credit.
June 30, 2010, 2:58 amBrett Bellmore says:
When the job of the Supreme court changed from upholding the Constitution we actually had, to acting as a permanent constitutional convention.
June 30, 2010, 5:39 ampublic_defender says:
I ask again: Is their any evidence of Udall’s claim other than this one report of his recollection? This seems like mighty thin gruel.
June 30, 2010, 5:50 amPersonFromPorlock says:
From your op-ed:
I have to agree with them, but their objection is irrelevant: Heller is really a Ninth Amendment decision. The Second protects not a right to armed self defense, but to arms themselves – a point which the Court either failed or refused to grasp.
June 30, 2010, 8:25 amJoe says:
“he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity”
The second half is conclusionary; since Heller allows for so many regulations, some don’t think it does much in a “practical” sense anyways.
Contrast that with her Senate testimony: “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.”
Yet her McDonald opinion shows her “understanding” that those many, many Americans are completely wrong to think they have a meaningful individual right.
She “understood” it. For instance, she “understands” states already protect the right in various ways. Again, “meaningful individual right” is conclusionary. What does that mean? That’s the whole point here.
Besides, there also are plenty of law-journal articles that praise Heller and point out serious logical and historical errors that the anti-Second Amendment dissenters made in Heller.
And, there are plenty that criticize it; some historians in fact joined with the city here.
BTW, talk of how any “Democratic President” would chose a nominee who would act this way is mighty selective since Alito and Roberts surely also talked about “settled law,” and in various cases reject it. See, Scalia’s opinion (joined by Alito and Roberts) in the Florida takings case that sneered at Lawrence v. Texas.
June 30, 2010, 8:45 amyankev says:
Sotomayor said that a wise Latina would make better decisions than a white male. I guess we’ll never find out unless and until a wise Latina is appointed to the Supreme Court.
June 30, 2010, 9:20 amSayUncle » Kagan and guns says:
[...] Kopel will be testifying on the nomination. [...]
June 30, 2010, 9:47 amAllan Walstad says:
Keep talking, buddy. That’s exactly what people need to hear, in order to appreciate that their right to keep & bear arms is not yet safe.
June 30, 2010, 11:15 amPuff Matty says:
I heartily affirm the idea that Senators should not be satisfied with Kagan’s vapid platitudes about “settled law.”
Senators should press the nominee for vapid platitudes about “balls and strikes.” Only then will she have proven herself worthy of their confidence!
June 30, 2010, 11:17 amMartinned says:
That sounds about right. No matter how liberal the supreme court gets, they’ll never dare overrule Heller/McDonald, just like no supreme court would ever completely overrule Roe. In both cases, the original minority simply nibbles away one small step at a time, hoping that no one will notice.
June 30, 2010, 11:26 amMartinned says:
Do those many Americans also think they have a right to a unanimous jury verdict?
June 30, 2010, 11:28 amgeokstr says:
We most certainly do need more President Obamas, since it has been obvious for some time that just one of them is not even close to being up to the job, on nearly any issue (excepting his specialties of prompter-reading, prevarication and buck-passing that is).
June 30, 2010, 11:31 amAllan Walstad says:
PersonFromPorlock
I’m curious as to whether you just made up that piece of nonsense by yourself, or if you got it from some twisted source like Saul Cornell.
June 30, 2010, 11:34 amepluribus says:
This story doesn’t pass the plausibility test. First, it would be grossly improper for a senator (or anybody else) to ask a Supreme Court nominee to “promise” that he/she would decide a case a certain way. Second, it would be grossly improper for the nominee to “promise” to do so. Third, it would be grossly improper for a justice to make a particular decision because he/she had “promised” to do so. I don’t believe she was asked to do that, nor do I think she made any such “promise.” Yet, the Republicans are all over the tube now accusing Sotomayor of dishonesty, and suggesting that Kagan may also be dishonest in some of the answers she has given. I just heard Senator Cornyn level that charge against Sotomayor. I wonder what his special adviser Oren Kerr thinks about that. This is despicable.
June 30, 2010, 11:42 amyankee says:
Is it inherently contradictory to say that something is settled law and simultaneously intend to do your best to unsettle it? I’m not sure it is.
That said, if it’s not contradictory, it makes platitudes about “settled law” seem even more meaningless than they already did.
June 30, 2010, 11:49 amPat H. says:
The country is on the cusp of dividing itself via secession of a number of states now and you want more progressive (fascist) nominations to the SCOTUS? Keep on keeping on, you’re exactly what we need to initiate those secessions.
June 30, 2010, 11:56 amPat H. says:
The country is on the cusp of dividing itself via secession of a number of states now and you want more progressive (fascist) nominations to the SCOTUS? Keep on keeping on, you’re exactly what we need to initiate secession.
It protects the right to keep and bear arms for whatever purpose Americans wish.
June 30, 2010, 12:00 pmMartinned says:
ROFLMAO!
LOL!
June 30, 2010, 12:01 pmMartinned says:
Hint: You have to take your thumb off the paper, so that you can read the first part of the amendment as well…
June 30, 2010, 12:01 pmJoe says:
Do those many Americans also think they have a right to a unanimous jury verdict?
more probably think they have unanimous jury verdicts, except perhaps in the two states that don’t have them
June 30, 2010, 12:12 pmSupreme Court Dooms Chicago Gun Ban; Obama Judicial Nominees Oppose Gun Rights; Religious Clubs Lose First Amendment Case; Removal of High-Ranking Bureaucrats Made Easier | OpenMarket.org says:
[...] Amendment scholar David Kopel says that Sotomayor was not candid, noting that her opinion “contradicted” what she told the Senate before the Senate confirmed her to the Supreme Court. It is [...]
June 30, 2010, 12:26 pmDaily Pundit » Pull The Other One says:
[...] the other hand, I personally place as much credence in her truthfulness on the matter as I did on Sonia Sotomayor’s. Submit to Stumbled Upon! -Bill Quick Comments on this [...]
June 30, 2010, 12:44 pmOwen H. says:
Can any of the originalists out there point to where the Constitution specifically enumerates a right of armed self defense? I mean, the 2nd doesn’t say individual self-defense, it talks about defending the nation.
June 30, 2010, 12:48 pmAllan Walstad says:
Owen H.
This has been gone over so many times on earlier VC threads over the years. 2A says the right of the people to keep and bear arms shall not be infringed. The language “shall not be infringed” explicitly indicates a pre-existing right, not one in any way created by the Constitution. The security of a free state, mentioned in the preamble, surely includes the security of the people, not just the borders or the organs of government. Even such a twisted anti-gun propagandist as historian Saul Cornell doesn’t aver that 2A is about defending the nation, rather his joke of an interpretation is that it was a bone thrown out to the states, that their militia units could not be disarmed by the feds. Shall we believe that 2A simply means you have a right to a gun while serving in the military?? Is there some sinister likelihood of the government sending troops into battle without arms? So are we to believe then that 2A means you can have a gun locked up somewhere for when called up by the government to defend the borders and the organs of government, but if brigands invade your community or home, attack you and your neighbors, rob your property and rape your kids you can’t use the gun for defense because the “security of a free state” has nothing directly to do with the security of the people in it?
The word “militia,” like many words, has more than one related meaning. It can refer to organized military units, or it can refer more generally to the people armed and ready for defense. Congress itself even offered a fairly inclusive definition of “militia” around 1800. The phrase “well-regulated” also could be used in a variety of ways, but had the connotation of something functioning well or serving its purpose. Military units, police, etc, could not be everywhere at all times (and still can’t, and I’m not sure that’s a bad thing). The necessity of a functional militia for defending the security of a free state is why 2A recognizes the unalienable right of people to possess arms to protect themselves.
A shorter response to your comment would be the following: Can you come up with a cogent interpretation of 2A that doesn’t include the right of armed self-defense? I’ve never seen one.
June 30, 2010, 1:25 pmmamiejane says:
Judges are supposed to consider the arguments made to them with a relatively open mind. So to the extent Sotomayor made a decision after the arguments that countered her pre-hearing statements, she did what she was supposed to do. It seems to me that the only correct answer to the stupid question about whether anything is settled law is that if an issue gets to the Court, the judge is prepared to consider whatever arguments are made and rule on that basis. The other truth is that judges’ political philosophies will almost always affect the outcome at the Supreme Court level but America isn’t ready for that reality…we want to pretend our judiciary is above politics.
June 30, 2010, 2:47 pmAla JD says:
progressive (fascist)? is that like a liberal (conservative)? Is there a way to require certain posters to visit dictionary.com before they use big words that they clearly don’t understand?
June 30, 2010, 2:50 pmOwen H. says:
See, that’s the problem with an “originalist” interpretation; it doesn’t say it specifically, that is the interpretation you chose to believe (as do I, as it happens). But it does not specifically state there is a right to armed self-defense, and does specifically state why the right shall not be infringed (which is not the same as saying it cannot be regulated), which is defense of the state.
As an aside, the “well regulated” part can easily be used to justify requiring training, etc.
June 30, 2010, 3:16 pmOrenWithAnE says:
While I share Martinned’s credulity towards the prospect of a 21C rebellion (and I more or less concur with LMAO as a valid response on the merits), it is still saddening that we cannot find a common ground on which to end this interminably useless culture war.
On the other hand, McD gives me hope since it reverses the usual Federalism/Judicial-activism roles — conservatives asking for the negation of State and local law on the Federal grounds. The robust protection of religious freedom could offer another avenue to get conservatives on board with the program.
June 30, 2010, 3:28 pmOrenWithAnE says:
FWIW, the NRA has long felt that firearms training is an integral part of the RKBA. Saying that those in favor of gun rights are against training is a bit ridiculous, no?
June 30, 2010, 3:31 pmbigbob says:
http://mediamatters.org/blog/201006290037
Media Matters for Amerira: Conservative media figures falsely accuse Sotomayor of testifying untruthfully on gun rights
June 30, 2010, 4:11 pmArthur Kirkland says:
Keep talking, buddy. That’s exactly what people need to hear, in order to appreciate that their right to keep & bear arms is not yet safe.
I believe the Constitution protects the right to possess reasonable arms for self-defense in the home, and believe that right to be safe. Not safe against every feasible threat, but likely safer than some other important rights, which were trampled in the panic that controlled our executive branch in the extended wake of the September 11 attack.
June 30, 2010, 4:31 pmNick D. says:
The Thomas confirmation hearings aren’t exactly in my wheelhouse of information. I realize there was an intense focus on Anita Hill, but did he ever make affirmative statements about “settled law.”
June 30, 2010, 5:36 pmAllan Walstad says:
Owen H:
It occurs to me that in responding to your comment I could be self-identifying as an “originalist,” whatever that’s supposed to mean to different people. But it sounds like what you would be referring to as “originalist” is better characterized as “literalist.” The meaning intended by the authors is illuminated by the attitudes of the times, interpretations at the time, the meanings of words and phrases at the time, etc. Anyhow, I do invite you to try to come up with a cogent interpretation that does not include self-defense, and meanwhile my wife says we’re late for dinner. Later?
June 30, 2010, 5:41 pmgregorya57 says:
Note to Ala JD: “Progressive” and “fascist” are intimately intertwined. They are not, as you suggest, a contradiction in terms. The American progressives admired and imitated the original (Italian) fascists in the early 20th century. If you need education on the subject, and it appears you do, start with “Liberal Fascism“, by Jonah Goldberg.
June 30, 2010, 5:53 pmPat H. says:
Yes, well, perhaps you need a grammar lesson.
The first, dependent clause, speaks of “a” militia, using the indefinite article “a” is meaningful in that there’s no particular militia mentioned in the Second Amendment at all. The main body of the Constitution does mention “the” militia, using the definite article “the” is, likewise, meaningful. If the Second Amendment used the phrase “the militia”, the meaning of the Second Amendment would have been radically different, but it didn’t, so the Second Amendment is a requirement and an establishment of a duty upon all government to protect access to any weapon by any person.
The Second Amendment’s mention of “a militia” is not limiting language of any kind, wasn’t at the adoption of the Amendment, isn’t now. One might ask, “why did the authors of the Second Amendment mention ‘a militia’ at all?” It’s apparent that they wanted to insure that the most difficult and likely to be thwarted purpose of unfettered access to arms needed to be mentioned. That lesser uses of arms, that is ANY weapon, were unlikely to be interfered with, little did they know how things would head, but that’s not their failing, it’s ours.
June 30, 2010, 6:21 pmSarcastro says:
See, liberals say they are for the people, and Hitler said he was for the people. Thus, liberals are like Hitler.
Also Islam.
June 30, 2010, 6:22 pmOwen H. says:
They aren’t?
It’s strange, I was under the impression that President Obama was going to have taken them away by now. I mean, that’s what all the conservatives, Republicans, and libertarians were screaming two years ago. Not that I can tell a libertarian from a conservative these days.
June 30, 2010, 6:30 pmPersonFromPorlock says:
OK, I’ll bite – where do you find the term ‘self defense’ in the Second Amendment? And how do you miss that “the right to keep and bear arms” is a thing in itself, without any reference to what they’re kept and borne for?
June 30, 2010, 7:20 pmmattski says:
That’s an interesting theory you have there.
One problem I see, the 2nd A doesn’t mention “a militia”. It mentions “a well regulated Militia” which is “necessary to the security of a free State.”
Something to take into account when concocting theories.
June 30, 2010, 7:20 pmmattski says:
If at first you don’t succeed, try try again.
June 30, 2010, 7:26 pmMikee says:
Self defense is an inherent, inalienable human right. That various governments, from feudal era Europeans to Japanese shogunates to local police dressed as Klan night riders, to British parliamentarians, have infringed this right against the peasants, the non-samurai, the blacks, or the common Britian, does not remove the inherent, inalienable right from existence.
I look forward to Alan Gura’s next case, against North Carolina’s emergency powers laws.
June 30, 2010, 7:28 pmSarcastro says:
Mikee, Rights Arbiter, has spoken! The UN might have no legitimacy with their statements and crap, but Mikee makes up for it with listing how the right has been trampled over and over and over again!
Next right: not being taxed. Sure, lots of societies have been doing it, but that changes nothing!!
June 30, 2010, 7:41 pmJim says:
What a reading comprehension fail by Kopel. Heller found unanimously (9-0) for an individual right, they just disagreed on the scope of the individual right. This is what Sotomayor was referencing in confirmation. From the Heller DISSENT:
(emphasis added).
June 30, 2010, 7:53 pmAllan Walstad says:
How do you concoct an interpretation of 2A that doesn’t include self-defense? I already addressed the wording of 2A extensively earlier, Mattski–do you bother reading through the comments? And the whole subject has been gone over again and again through the years on VC. And, PersonFromPorlock, what the hell do you think they’re kept and borne for? Maybe we’re just supposed to tie a flagpole to the barrel and march down Main Street on Flag Day? TRY to come up with a cogent interpretation of 2A that denies self-defense. May I suggest some parameters? It’s a right of the people, not a power of governments to deploy armed military units. It “shall not be infringed,” language anyone having the slightest appreciation of the philosophical background understands as referring to a pre-existing individual right. And your interpretation can’t turn 2A into a nullity or some sort of ruse perpetrated by the framers; it has to cut against government power somewhere, to an extent commensurate with having been selected for inclusion among the enumerated rights in the Bill of Rights, rather than being left to the catch-all 9A and 10A. Go ahead. Give it a shot.
June 30, 2010, 8:44 pmAllan Walstad says:
Jim:
Sure. And the dissenters just happen to think the scope is zero, right?
June 30, 2010, 8:48 pmPat H. says:
I didn’t pose a theory, I related facts of which you didn’t comprehend, I suppose.
The key is the use of the indefinite article, the words “well regulated” grant no additional meaning to the listing of but one purpose for the right being protected. The problem gun confiscationists have is that the right protected by the Second Amendment is unlimited by it. Therefore, there are no limits to weapons access presented by the Second Amendment of any kind.
Really, it’s that simple.
June 30, 2010, 9:14 pmJim says:
Point being Kopel thinks she is being inconsistent. The dissenters (and Sotomayor) could well agree with an individual right (as she testified) but believe that Heller was wrongly decided on “self-defense” grounds. There is no inconsistency.
June 30, 2010, 9:27 pmTurk Turon says:
Allan Walstad:
Beautiful!
June 30, 2010, 10:06 pmSotomayor Lied During Her Confirmation Hearings at Bydio says:
[...] via The Volokh Conspiracy » The Sotomayor switcheroo, and the Kagan nomination. [...]
July 1, 2010, 12:58 ampublic_defender says:
All these comments, and still no one has any evidence of the remark except that one reporter said that Udall said that Sotomayor said that Heller was “settled law that would guide her decisions in future cases.” Triple hearsay! Given the third person in the quote, it is clear the quote is Udall’s, not Sotomayor’s.
If you’re going to hold someone accountable for a specific quote, you need to do better than a triple hearsay paraphrased version on the supposed statement.
July 1, 2010, 5:34 ammattski says:
Allan,
You don’t have to get all testy on us! It’s a fact of life that people disagree as to what the text of the Constitution means.
And you’re not crediting the fact that the Supreme Court, over the history of our nation, has not interpreted 2nd A as you seem to do.
July 1, 2010, 6:40 ammattski says:
If you’re speaking about your desires then I agree, it’s that simple.
If you’re speaking about what the Constitution means, or the law of the land, then you don’t come off sounding well informed.
July 1, 2010, 6:45 ampublic_defender says:
Look, your side won the argument in the US Supreme Court. Yeah, it was only 5-4, but you still won, so you can take that giant chip off your shoulder. Nothing’s worse than a sore winner.
July 1, 2010, 8:15 amleo marvin says:
How do you know? Maybe 200 years from now the Supreme Court will vote 5-4 that there is something worse than a sore winner, and the sore winners will complain it was obvious all along.
July 1, 2010, 1:33 pmAllan Walstad says:
Actually, with regard to 2A reflecting a pre-existing right, wasn’t that in Scalia’s opinion? But look, I’m expressing my opinion, as are others. And as for being a sore winner, let he who is without sin as a winner or loser cast the first stone. For now, I guess I’ll just take my blue ribbon and go home. ;-)
[But maybe on another thread, someone will take up the challenge to offer a cogent interpretation of 2A that doesn't protect a right of self-defense.]
July 1, 2010, 3:23 pmRifle Slings for AR15, 10/22 and Ak-47 :: http://ghilliesuit-plus.com/rifle_slings says:
[...] Kopel will be testifying on the nomination. [...]
July 6, 2010, 4:53 pmpragmatists says:
How about this: who gives a crap what they say. We’re not giving up our guns, regardless.
July 25, 2010, 3:58 am