(CNSNews.com) – Supreme Court nominee Sonia Sotomayor, asked Tuesday about her attitude toward the Second Amendment and its application to the states, said she understands “how important the right to bear arms is to many, many Americans.”
Sotomayor noted that one of her godchildren is a member of the NRA (National Rifle Association), and she said she has friends who hunt.
“I understand the individual right fully that the Supreme Court recognized in
Heller (a reference to the 2008 case,
District of Columbia v. Heller, which
held that the Second Amendment protects an individual's right to possess a firearm for private use. The Heller case struck down the city’s 32-year-old handgun ban.)
However, Sotomayor noted that the Supreme Court addressed a narrow issue in
Heller – and that Justice Scalia, in a footnote, specifically mentioned earlier Supreme Court decisions reaffirming “that the Second Amendment applies only to the Federal Government,” not to the states.
Sotomayor ruled in January 2009 (in
Maloney v. Cuomo) that the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.
The opinion said the Second Amendment restricts only the federal government from infringing on an individual's right to keep and bear arms.
The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.
Sotomayor’s decision in
Maloney rejected the Fourteenth Amendment’s incorporation doctrine as far as Second Amendment is concerned.
On Tuesday, Sotomayor told senators she was following Supreme Court precedent in the Maloney case.
“When Maloney came before the Second Circuit…myself and two other judges read what the Supreme Court said (in
Heller), saw that it had not explicitly rejected its precedent on application to the states, and followed that precedent – because it’s the job of the Supreme Court to change it (precedent),” Sotomayor said.
“You asked me whether I have an open mind on that question,” Sotomayor said to Sen. Patrick Leahy (D-Vt.). (Leahy earlier had asked her: “Would you have an open mind on the Supreme Court in evaluating…whether Second Amendment rights should be considered fundamental rights and thus applicable to the states?”)
“Absolutely,” Sotomayor concluded on Tuesday. “My decision in Maloney – and on any case of this type – would be to follow the precedent of the Supreme Court when it speaks directly on an issue. And I would not pre-judge any question that came before me if I was a justice on the Supreme Court.”
See earlier story:
Sotomayor Ruled That States Do Not Have to Obey Second Amendment (28 May 2009)