Posted on 06/04/2009 10:05:50 AM PDT by anniegetyourgun
President Obama’s nominee to the U.S. Supreme Court, 2nd Circuit Judge Sonia Sotomayor, owes the American people an explanation on her view of the Second Amendment. Most nominees come before the Senate Judiciary Committee and refuse to answer questions about hot-button issues such as abortion, gay marriage, gun rights and the death penalty. But Sotomayor shouldn’t be allowed to skirt the Second Amendment issue, because she cosigned a decision in a case earlier this year that exhibited a dismissive and hostile view of the right to bear arms. … during the past few months the Senate has voted three times on pro-gun legislation. Each of these legislative amendments passed with overwhelming bipartisan margins. Clearly, the view that the Second Amendment protects an individual’s right to own and carry a weapon is held by more Senators than the view that the Second Amendment is an empty phrase.
But what about that recent Seventh Circuit opinion holding that the Second Amendment is not incorporated against the states? Heritage fellow Robert Alt distinguishes the two cases:
In light of the Seventh Circuit’s opinion in NRA v. City of Chicago, holding that Supreme Court precedent binds the court to hold that the Second Amendment does not apply to the states, it is useful to note a key distinction between that case and Sotomayor’s in Maloney v. Cuomo. Notably, in Maloney, Sotomayor joined an opinion finding that New York’s weapons law did not “interfere[] with a fundamental right.” (She had expressed similar views pre-Heller, when she joined an unpublished opinion stating that “the right to possess a gun is clearly not a fundamental right.”) As such, Sotomayor has the distinction of having voted with the only court of appeals decision to so denigrate Second Amendment rights after Heller. The Ninth Circuit in Nordyke v. King found that the right to bear arms is a fundamental right deeply rooted in this nation’s history and tradition, and the Seventh Circuit in NRA, applying what Eugene Volokh ably dissects as undue judicial restraint, did not speak to the question.
All of the Circuits, and SCOTUS too, are mired in a legal fabrication that none will admit. The legal fabrication (actually, two of them) revolve around past SCOTUS precedent, Presser and Miller. The instant Sotomayor / 2nd circuit "big lie" has to do with Presser.
SCOTUS in Presser v. Illinois: "... the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."
2nd Circuit, in Bach v Pataki: "Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states." cert. denied, 546 U.S. 1174 (2006)
I think the nominees should be asked to "brief the case," as a law student would, for Miller and Presser. What were the fact of the case? What was at issue (in Presser, it was whether there is a constitutional right to parade without a permit)? What was the decision below (in Miller, the decision below was that Miller's indictment was quashed and the 1934 NFA was found unconstitutional - but in Heller, Scalia says Miller was convicted, and the Supreme Court upheld the conviction). What was the outcome? What rationale was used to reach that outcome?
If a judge cannot properly "brief" or summarize an easy case - and this activity does not involve a value judgement as to whether the case was rightly decided - then they have no business being on the bench. Not on ANY bench.
bttt for later reading
Dicta.
The holding in Presser is not friendly to RTKABA folks.
Like me.
-bflr-
So is the part that the Circuits claim is binding precedent, but you let the Circuits slide on that angle.
Presser is a parade permit case, and you let the Circuits turn it into a case about RKBA.
:-} I did all that?
ROTFL. Of course not. I'm sure you understood what I meant though, and you're in a good position to understand given your education.
I hadn't read Cruikshank/Presser carefully until the Sotomayor nomination. I was rather surprised at what I found. The language of the cases is stilted and jargon-laden, as all the cases from that period are. I've been rephrasing the case in simpler (but still accurate) terms, and hope others are persuaded to look at Presser for themselves to see what propositions it can FAIRLY be said to support.
Presser was conducting an armed parade on public property, and doing so without obtaining a parade permit. His argument was basically that the 1st and/or 2nd amendment protects a right to conduct armed public parades.
I think your sentiment that the Presser case is hostile to the RKBA is misplaced. Your hostility should be directed to the Circuit Courts for claiming Presser stands for the proposition that states are free to prohibit keep and bear arms; because that is not at all what Presser stands for. Presser stands for the proposition that states may require parade permits.
Be it her or any other selection, this President’s USSC candidate must be thoroughly BORKED!
Sigh....love your optimism.
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