Senator Orin Hatch (R-UT) and Senator Jon Kyl (R-AZ) engaged in detailed questioning of Sotomayor’s views on the Second Amendment. Judge Sotomayor seemed hostile and evasive to the concept that the Second Amendment protects and individual right of all Americans against an action by a state to seize firearms. A senior Senate staffer concluded that “she confirmed her view that gun ownership is not a fundamental right.”
Sotomayor seemed evasive when questioned by Senator Hatch whether she relied on the 1886 case Presser v. Illinois to hold that the Second Amendment was not a fundamental right. Sotomayor said, "It may have. I haven't read it recently enough to remember exactly." Hatch made the case that Sotomayor in the 2nd Circuit Court of Appeals case, Maloney v. Cuomo applied the wrong standard of review. [# More #] Senator Hatch said “I believe you’ve applied the wrong line of cases in Maloney, because you were applying cases that used the privileges and immunities clause and not cases that used the 14th Amendment due process clause.” Hatch made the case that Sotomayor’s line of reasoning would allow any decision by a state or local government to pass constitutional scrutiny if merely rationally based. Sotomayor responded that “well, all standards of the court are attempting to ensure that government action has a basis.” Not much of an answer and Sotomayor seemed evasive in explaining her reasoning for the Maloney case other than that she was following a precedent. Not much analysis.
Senator Kyl asked Sotomayor whether she would recuse herself from any Supreme Court decision relating to the divergent Second Amendment decisions of the 9th and 7th Circuit Court of Appeals that direcly address the incorporation argument at issue in Maloney. Sotomayor refused to state that she would recuse herself from these similar cases. Kyl made the case that Sotomayor’s participation in the 9th or 7th Circuit Court of Appeals incorporation Second Amendment cases may lead to an appearance of impropriety. One could come to the conclusion that Sotomayor would be protecting her rational in Maloney if she refused to incorporate the 2nd Amendment on the states. The responses to Kyl’s line of questioning evidenced hostility to the clear reading of the words of the 2nd Amendment that “the right of the people to keep and bear Arms, shall not be infringed.”
Brian Darling is Director of Senate Relations at the Heritage Foundation