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Sen. Kyl's Second Round of Questioning at Judge Sotomayor Confirmation Hearing
KYL: Could I...
SOTOMAYOR: So it does have more...
KYL: Flexibility for the...
SOTOMAYOR: Well, flexibility is the wrong -- more a deference to congressional findings about what...
KYL: Or -- or state law.
KYL: Right. You -- you know that the -- the general rule that the rational basis test is the least intrusive on a state's ability to regulate, whereas strict scrutiny is -- is the most intrusive on the state's ability. Is that a fair characterization?
SOTOMAYOR: It's a fair characterization that when you have strict scrutiny, the government's legislation must be very narrowly tailored.
KYL: Right. So...
SOTOMAYOR: When a rational basis, there is a broader breadth for the states to act.
KYL: So wouldn't it be correct to say that as between the application of the Second Amendment to the District of Columbia, for example, compared to a situation in which a state or city imposed a regulation on the control of firearms, that it would be much more likely that the court would uphold the state's ability or the city's ability to regulate that than it would -- in the abstract, I'm talking about here -- than it would a federal attempt to regulate it under the Second Amendment?
SOTOMAYOR: That's a problem within the abstract, because what the court would look at is whatever legislatures -- state legislative findings there are and the fit -- I'm -- fit between those findings and the legislation.
KYL: Right. And -- and I appreciate that you're not going to -- without knowing the facts of every case, you can't opine. But just as a general proposition, obviously, if the amendment is incorporated, it will be much more difficult for a government to impose a standard than if it is not incorporated.
SOTOMAYOR: Well, the standard of review, even under the incorporation doctrine, was actually not decided in Heller. And that issue wasn't resolved, so what that answer will be is actually an open question that I couldn't even discuss in a broad term, other than to just explain that...
KYL: All right. Let -- let me ask you -- again to interrupt, because we're less than two minutes now -- if Senator Leahy says, gee, in Vermont he's not worried about the fact that the Second Amendment isn't incorporated. Maybe if I lived in New York or Massachusetts or some other state, I would be worried.
The question, I do, I would ask here is can you understand why someone who would like to own a gun would be concerned that if the amendment is not deemed incorporated into the 14th Amendment as a fundamental right, that it would be much more likely that the state or the city in which that individual lived could regulate his right to own a firearm?
SOTOMAYOR: Very clear to me from the public discussions on this issue that that is a concern for many people.
KYL: Final question. You're familiar -- this goes to the foreign law issue -- you're familiar with the difference in the treatment of foreign law by the U.S. Supreme Court in Kennedy v. Louisiana on the one hand and in Roper v. Simmons on the other.
In Roper the court ruled it was cruel and unusual to apply the death penalty and drew substantially on foreign law. In Kennedy v. Louisiana, an adult was convicted of raping an 8-year-old child, and the same five justices who wrote the opinion in Roper ruled that it was cruel and unusual to sentence the individual to death, but cited no foreign law whatsoever.
Some have said that a discussion of foreign law was left out of the Kennedy case because it actually cut against the majority's opinion. What do you think?
SOTOMAYOR: I can't speak for why they did. I can only do what you did, which is to describe what the courts did in what they said. It's impossible for me to speak about why a particular court acted in a particular way or why a particular justice analyzed an issue outside of what the opinion says.
KYL: I'll just tell you, my view is it kind of tells me that if the court can find some foreign law that supports its opinion, it might use it. If the opinion is on the other side, then it doesn't.
In my view, that's one of the problems with using foreign law. And I gather from what you said earlier, you don't think the court should use foreign law, either, except in cases of treaty and other similarly appropriate cases.
SOTOMAYOR: I do not believe that foreign law should be used to -- to determine the result under constitutional law or American law, except where American law directs.
KYL: Thank you very much. Thank you, Judge.
LEAHY: Thank you.