Sen. Cornyn submits question to Judge Sotomayor on Second Amendment

[Bartholomew Roberts]

Got a notice from my Senator that he would be asking the following question of Judge Sotomayor during her confirmation hearing:

Originally Posted by Senator Cornyn

What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?

Explanation: The significance and scope of the Second Amendment will be important issues raised at the hearings for Judge Sotomayor's nomination to the Supreme Court. Judge Sotomayor has decided two cases involving the Second Amendment in which she has discussed whether the Second Amendment confers a fundamental right. In United States v. Sanchez-Villar, 99 Fed. Appx. 256 (2d Cir. 2004), an opinion she joined stated in a brief footnote that the Second Amendment did not confer a fundamental right. And the decision she joined in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), indicated the same point.

The hearings for Judge Sotomayor will provide an opportunity for Judge Sotomayor to explain the significance of the statements in Sanchez-Villar and Maloney that the right to keep and bear arms is not a fundamental right. The precise legal significance of whether a legal right is "fundamental" can vary depending on the context. For example, the Supreme Court has used the term "fundamental rights" in the context of the Due Process clause to refer to those fundamental rights and liberties that trigger strict scrutiny. See Washington v. Glucksberg, 521 U.S. 702 (1997). On the other hand, the Supreme Court has used the term "fundamental rights" to refer to parts of the Bill of Rights that are so essential that they are incorporated by the Fourteenth Amendment and therefore apply to the states. See, e.g., Pointer v. Texas, 380 U.S. 400, 403 (1965).

In some cases the Supreme Court has referred to a right as fundamental without making the precise meaning clear. The Second Amendment is a good example. In District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (2008), the Supreme Court referred to the historical understanding of the right to keep and bear arms as a fundamental right:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," Alden v. Maine, 527 U.S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765).

During the hearings in July, I hope Judge Sotomayor can explain how she reconciles the statements she has joined about the Second Amendment with the Supreme Court's statements about the Second Amendment in Heller. Further, I hope she can explain what she thinks it means to say that the Second Amendment is or is not a "fundamental right."

Sen. Cornyn serves on the Finance, Judiciary and Budget Committees. He serves as the top Republican on the Judiciary Committee's Immigration, Refugees and Border Security subcommittee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.

Like Senator Cornyn, I will be interested in seeing Judge Sotomayor's answer to this as well and it is heartening to know she is going to have to answer some questions on this issue.

[langenc]

Not nearly enough. The (D)s will be giving several minute blabbering descriptions of her and her character, etc, etc.

[AirForceShooter]

Thanks for the post

AFS

[Bartholomew Roberts]

I don't think Senator Cornyn will be alone in asking about the Second Amendment and I would like to think that at least a few of the majority party Senators will have some Second Amendment related questions of their own, though I imagine whether that happens depends a lot on how much heat they feel from their constituents.

Politically though it would be a smart move... have a Senator toss out a softball question on the Second Amendment, let Sotomayor give a vague but reassuring answer, then congratulate the Judge for her candor. Judge gets to bolster her nomination creds. Senator gets to claim tough questioning of nominee over Second Amendment and the circus keeps rolling through town.

[jason hammac]

I received a similiar response from SEN Hutchinson, both agree the 2nd Admendment issue needs to be addressed.

[publius]

Hutchison will ask tough questions about the 2nd amd. if given the chance.

[Shorts]

Glad that that he and Hutchison are looking proactive about the 2A. Heaven knows I've sent more than my share of emails to them both and each reply is that they do support a law abiding citizens 2A right without the extra rigmarole of far reaching gun control measures.

We got the talk, now walk the walk.

[sholling]

I doubt that much questioning or debate will be allowed by the Senate leadership. The pattern that has been set in 2009 is that nothing may be debated, and that bills may not even be read before a vote. Essentially the Senate has become a rubber stamp.