Tuesday, July 28, 2009
FOR THE FIRST time in its 138-year history, the National Rifle Association is counting the votes on a Supreme Court nominee in its ratings of senators. That means senators -- including members of the Judiciary Committee who are due to vote on Sonia Sotomayor on Tuesday -- will have to choose between voting for the first Hispanic nominee and getting high marks from the premier gun rights organization, which opposes her confirmation. Explains NRA Executive Vice President Wayne LaPierre: "Unfortunately, Judge Sotomayor's judicial record and testimony clearly demonstrate a hostile view of the Second Amendment and the fundamental right of self-defense guaranteed under the U.S. Constitution."
That's strange. During her confirmation hearings, Judge Sotomayor repeatedly acknowledged that the Second Amendment bestows an individual right to keep and bear arms, as the Supreme Court decreed in a landmark 2008 ruling, Heller v. District of Columbia. The NRA blasts Judge Sotomayor for not going beyond that ruling to declare that the Second Amendment prohibits states from adopting restrictions on that individual right. Some would call that judicial activism. The group should redirect its hostility toward Justice Antonin Scalia, who in writing the Heller opinion declared that court precedent is understood to mean that the "Second Amendment applies only to the Federal Government."
Judge Sotomayor correctly followed the high court's existing case law. Two of the leading conservative lights on the federal appeals courts -- Judges Richard A. Posner and Frank H. Easterbrook of the 7th Circuit -- agreed with her assessment. Judges on the California-based U.S. Appeals Court for the 9th Circuit saw it differently, suggesting that the issue is soon likely to come before the nine justices. That means that Judge Sotomayor was also right to decline further discussion of a matter that is undecided and which she may be forced to rule on if confirmed.
During his confirmation hearing, Chief Justice John G. Roberts Jr. refused to opine on whether the Second Amendment recognized an individual right because it was a live controversy. Justice Samuel A. Alito Jr. was not asked to share his views on the rights of individuals to keep and bear arms. The NRA did not oppose either nominee. The organization is wrong now to distort Judge Sotomayor's record, oppose her confirmation and threaten to use lawmakers' votes against them.