Abortion, Privacy, and Self-Defense

[larvatus]

Judge Sotomayor was ill advised to withhold her concession of a constitutional right to self-defense in her confirmation hearings. If the doctrine of substantive due process, as used by the Supreme Court to protect a wide range of unenumerated rights over a long period of time, supports the right to abortion and the right to privacy doctrines, it must with far greater reason support a right to self defense. The Supreme Court that protects “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992), cannot shie away from protecting the far more basic right to preserve one’s existence from wrongful physical threats.

In the light of reason, Judge Sotomayor’s recognition of abortion rights as settled precedent and endorsement of a constitutional right to privacy should cause and compel her to recognize and endorse a constitutional right to self-defense. As a practical matter, her shoo-in as a Supreme Court Justice will vouchsafe a permanent preemption of impartial reason by the richness of her experiences.

[Wildalaska]

She is a liar and a bigot and unqualified to sit on the Supreme Court, for reasons far beyond her purely political, as opposed to legal, answers in the line of questioning you refer to.

I tend to call it her a hypocrite.

WildthatsmyanalysisAlaska TM

[larvatus]

Don't be shy, Ken. Tell us how you really feel.

[JustDreadful]

She is a liar and a bigot

Agreed.

I wonder, in light of her recently professed reverence for precedent, how she'll view Heller.

[44 AMP]

notice which one comes first?

Might not be spelled oout specifically, but then, not everything needs to be, does it? Some things are just ...self evident truths.

We all know who she is, what she is, and why she is where she is right now, so I don't see this one going anywhere good, but I could be wrong, so I'll leave it open to discussion...for now.

[larvatus]

5 December 2007:

There’s a Supreme Court case that’s going to be decided fairly soon about what the Second Amendment means. I taught Constitutional Law for 10 years, so I’ve got my opinion. And my opinion is that the Second Amendment is probably—it is an individual right and not just a right of the militia. That’s what I expect the Supreme Court to rule. I think that’s a fair reading of the text of the Constitution. And so I respect the right of lawful gun owners to hunt, fish, protect their families. Like all rights, though, they are constrained and bound by the needs of the community.

15 February 2008:

There’s been a longstanding argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation.

15 October 2008:

I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

To simplify, all our Constitutional rights are constrained and bound by the needs of the community, while most of them are subject to common-sense regulation, even though many of them shouldn’t be subject to popular vote. And now, Sotomayor takes legal relativism one step further by implying that “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” is more basic than the right to preserve one’s existence from wrongful physical threats.

This issue will not be decided by them that clamor the loudest. It will be decided by them that persuade the best. Obama is to canny a politician to back a lost cause personally. The political skills of Sotomayor remain to be seen.

[alloy]

Her testimony made my stomach upset, something about her isn't quite right. She doesn't seem well-spoken, or to have a profound legal mind. I heard her say "if I go and get a gun when you threaten me"(paraphrased from memory) and it was obvious the question wasn't about going and getting anything, it was about then and there, being threatened....and needing/using a firearm as an immediate response to circumstances, not the premeditated act of going and getting. In one sentence she turned a hypothetical victim...into a proactive aggressor. She has preconcieved attitudes on certian issues, and it doesn't seem as if she even hears anything outside her already compartmentalized ideas on any given subject. Regardless of the hypothetical, she already had the answer, without consideration. Most likely explains the Ricci decision.

Can only wonder how the Constitution will hold up to her interpretation. The whole living document thing is troubling, I mean if you want your law(right) to have any power tomorrow....then yesterday's law(right) has to have the same power today. Otherwise it's just my way...whenever I say...cause I said so.

Same with snatching excerpts from foreign law. Our Constitution "should be held up to the documents of other countries to see if it is aligned with mainstream thinking?" Great....let's modify it cause Libya has a better take on XYZ human right. Hopefully The Roe Effect starts to kick in, because otherwise...it's the end of reason, with morning-after pills in home-room class. The whole idea of abortions as a medical procedure in the dawn of national healthcare, is extremely troubling as a tax-payer.

[Dragon55]

Sotomayor does sound like a bigot and liar. I am concerned when she is in the court she will lean the way the public/political wind blows because of the 'living document' mentality.

It appears that she is not as clear as Obama on 2A.

Over the past 20 or so years I keep hearing and reading about politicians and some journalists that want to adjust the CONSTITUTION to better fit modern life.

I submit we would all be much better off if we instead strove to make modern life fit the document.

[Brian Pfleuger]

The hearings are pointless. Looking at her past rulings is pointless. The history of her judgements has been constrained by higher court precedent. Now, she will BE the higher court, free to rule as far left as she believes. The only clear indication of her thought process is from her own words outside of legal restraints.... which are very, VERY scary.

I submit we would all be much better off if we instead strove to make modern life fit the document.

Amen brother.

[Doc Intrepid]

I found it amusing that Sotomayor continued, throughout the process, to profess that her opinions and philosophy were not "relevant"; and that in the absence of the specifics of one particular case in front of her, she could not possibly provide any clue regarding her personal positions on matters such as abortion, gun control, religion, or other political and societal schisms.

The obvious inference was that she refused to provide her personal positions because her personal positions were not relevant - she decided each case only on the legal merits (or lack thereof) established by precedent.

This conclusion is contradicted by the thinking behind the "wise Latina" comment, and the now-infamous affirmative action ruling regarding the suit brought by the firefighters. Clearly her personal opinions and philosophy inform and shape her judgements - precedent alone is not omnipotent.

(Who among us could state that our personal opinions play no role whatever in any conclusions we reach on matters of what is appropriate in society or in any broader cultural dispute?)

To sit before the Senate Committee and insist otherwise is disingenuous and academically dishonest.


That said, aside from the likelihood that her personal inclinations are quite likely to be hostile to gun owners, I suspect that she will be no better nor worse than the particular Justice she is replacing...who seemed equally disinclined to be a robust supporter of gun rights.

[Brian Pfleuger]

I suspect that she will be no better nor worse than the particular Justice she is replacing...

Quite true. Unfortunately, the entire court system has been completely politicized. The timing of Souter's retirement is no coincidence. It is timed to insure a replacement with his same ideals, and it is atrocious. Such a thing defies the very purpose of lifetime appointments.

On the flip side, one can assume that the conservative minded justices will be of the same persuasion on the matter of retirement and, as such, the composition of the court will not change except on the untimely death of any particular justice.

[Playboypenguin]

She is a liar and a bigot and unqualified to sit on the Supreme Court, for reasons far beyond her purely political, as opposed to legal, answers in the line of questioning you refer to.

Now, now...we can't go calling her names. She is a women and a Latina. That by definition means she cannot be a bigot.

It is the same old game that was played with Palin. She is a woman so if you criticize her and hold her accountable you are being unfair. I get so sick of this particular game.

I cannot claim to be an expert on her judicial career, but I can say I see a lot of things that make me think this woman is not only a bit racist but a sexist as well.

To be fair I will have to say that so far the rulings I have read seem fair to me. If you pay attention the the unsigned statement everyone is basing that "she said states do not have to protect the 2A" claim upon you will find that is not what she said at all. She simply was part of a panel that issued a statement saying that until the SCOTUS clears up it's own contradictions that no precedent exists to defend such an idea. Which is technically true. They were saying that the SCOTUS was not clear enough with the Heller verdict (a common criticism from both sides of the isle) and that they needed to clarify both that decision and they needed to reverse previous precedent that runs contrary to the Heller decision. Both things that I agree with.

That does not mean I like her though. She was pretty silent on that decision and therefore it does not really reflect on her much at all. So far I have to put her in the "I do not like her, and I am sure she will someday day justify that dislike, but I can't find anything definitive against her at this moment" category.

[Pahoo]

Anyone who pulls the race card at any time, of any color and for whatever reason, is a cheat and a liar. By my measure, she certainly fits that bill.
She will be confirmed and I have already taken note of who will vote her in. Know that there will be some Republicans that are for her.


Be Safe !!!

[larvatus]

Thus Nelson Lund pinpoints the real issue in his pithy synopsis of “A Constitutional Right to Self Defense?”:

As a practical matter, it is probably going to be much more important, and much more difficult, to agree on the scope of the right to self defense.

• Against whom may I defend myself, and with how much force?
• How certain do I have to be that I will be attacked before I respond with preemptive violence, and how imminent must the threat be?
• May I defend myself only against lethal threats or also against threats of serious injury?
• May I use force to defend my honor, which I may value more highly than my life?
• May a woman use lethal force to defend herself against any rape, or only those in which she faces an imminent threat of death or maiming?
• Do I have a duty to retreat, or may I stand my ground against a criminal attack?
• After I kill someone, how much proof will I need that I exercised my right of self defense within whatever limits the law prescribes?
• Does the right of self-defense include the right to join with one’s fellow citizens in order to resist with force the usurpations of a government turned tyrannical, as some have inferred from the Second Amendment?

Depending on how such questions are answered, the right of self defense could be anything from an important element in republican freedom to a useless memento of natural liberty.

In the light of these considerations, Sotomayor's waffling makes no sense. She could have just as well acknowledged and endorsed a constitutional right to self-defense stemming from the doctrine of substantive due process, only to submit it to a death of a thousand cuts in practical applications. I cannot begin to surmise the strategic reasons for her reticence in this matter.

[Wildalaska]

I cannot begin to surmise the strategic reasons for her reticence in this matter.

I can, but then this thread drifts in to the political

WildowellAlaska ™

[Shane Tuttle]

Originally Posted by PlayboyPenguin

To be fair I will have to say that so far the rulings I have read seem fair to me.

Have you read up on the firefighter ruling?

[Brian Pfleuger]

Have you read up on the firefighter ruling?

No kidding. The deal with the firefighters shows not just that SHE is unfit for the high court but given that the SCOTUS ruled 5-4, it is also an indication that 4 of the sitting justices are equally unfit. 100% pure P.C., political and nonsense.

[Playboypenguin]

Have you read up on the firefighter ruling?

Yes, and as much as I disagree with it, the ruling itself is in alignment with court precedent. For her, or any judge, to rule differently would border on legislating from the bench. That is not what I think the job is for a judge. If people do not like the ruling they have to change the rules that make it that way...not blame the judges for following the rules. I thought one of the big issues during previous elections was "activist judges" failing to simply enforce the law.

[Brian Pfleuger]

For her, or any judge, to rule differently would border on legislating from the bench. That is not what I think the job is for a judge.

"Legislating from the bench" is entirely different that overturning precedent that should never have been made. I would see such a thing as "having a spine".

Legislating from the bench is creating new law where there was none, not in overturning ignorant precedent.

[Playboypenguin]

"Legislating from the bench" is entirely different that overturning precedent that should never have been made. I would see such a thing as "having a spine".

Most court law is based on precedent. Overturning precedent is basically "re-interpreting" the law. That is not really any different than creating a new law...and that is what the right has been accusing judges on the left of doing. No judge is actually writing a "new" law. We cannot be picking and choosing when it is okay for a judge to do this or rationalizing the act when it suits our cause. That is not the job of a judge. That is the job of legislators to change the laws that formed the precedent.

[Brian Pfleuger]

Most court law is based on precedent. Overturning precedent is basically "re-interpreting" the law.

That's true, and I have less problem with that sort of thing. I don't *always* consider that to be "legislating from the bench". To me, the most egregious and cowardly thing, the true definition, is when a judge simply makes up some new right or regulation that simply is not there.

For example, "Congress shall make no law establishing a state religion.", suddenly became "A school may not hang the ten commandments." What?! How is a school the same as congress? Incorporated against the states? Fine. A school is STILL not a state legislature either. Original meaning "shall make no law". It doesn't say will not hang the ten commandments, or the muslim, or hindu or buddhist equivalent thereof, or offer prayers before sessions. THAT is legislating from the bench.

In other words, reinterpreting existing law is one thing, picking crap out of thin air and claiming it's some sort of right or regulation that was always there is entirely another.

[larvatus]

Have you read up on the firefighter ruling?

There is room for reasonable disagreement as to the relevance of written tests to the job performance of public servants. Stupid people need promotions, too. Shame on all those elitist egalitarians standing in the way of their career advancement.

[Shane Tuttle]

Originally Posted by PlayboyPenguin

Most court law is based on precedent. Overturning precedent is basically "re-interpreting" the law. That is not really any different than creating a new law...and that is what the right has been accusing judges on the left of doing. No judge is actually writing a "new" law. We cannot be picking and choosing when it is okay for a judge to do this or rationalizing the act when it suits our cause. That is not the job of a judge. That is the job of legislators to change the laws that formed the precedent.

I see your point, PBP. But I have to agree with Peetzakilla on this one. Not to drift off too much, but if I follow your logic to a 'T', the 1968 GCA and the 1986 MGA couldn't ever be overturned. Court rulings are known to be wrong and future cases should be allowed to review...

[Brian Pfleuger]

Actually, I think the three of us (Tuttle8, PBP, and me) are generally in pretty good agreement on the whole issue.

[jamullinstx]

The simple rule is that only a court superior (except for the SCOTUS0 may overrule a lower court's ruling. I don't think Sotomayor will be good for gun owners in any way, but her ruling on the firefighter case was in line with precedent. Only the SCOTUS had the power to overturn the lower decisions, and they did!