Sotomayor and the second amendment

[legaleagle_45]

ArmedBear:

I am going to tactfully decline to join your characterization until I have a chance to review the transcripts carefully. Right now, and based upon what I heard, I can not disagree with you, but I still hold out hope that I misunderstood what she was saying.

Does anyone know of an online source which has the complete transcript?

 

[dirt_j00]

She's really getting hit with recusal in regards to the 2nd's incorporation. Can someone opine on how her recusal would affect the upcoming SCOTUS incorporation case? -- i.e. would her recusal tip the scales in our favor?

 

[ArmedBear]

Not sure if there's a verbatim transcript up anywhere, yet. This seems to be the place to look for that and similar resources, in multiple articles and links.

http://www.scotusblog.com/wp/

 

[Phatty]

Can someone opine on how her recusal would affect the upcoming SCOTUS incorporation case?

I don't think it will make the slightest difference. Presumably, the five justices from the Heller majority will vote for incorporation of the 2A. If Sotomayor recuses and all of the dissenting justices from Heller vote against incorporation, the final decision is simply 5-3 instead of 5-4.

To be honest, though, I would be really surprised if even the liberal justices voted against incorporation of the 2A. I think that will be a unanimous opinion on the issue of incorporation.

 

[legaleagle_45]

Yeah, I am already on ScotusBlog, but the commentary on the 2nd is not too illuminating. They just have a superficial feel for the 2nd and do not understand the implications of what is being asserted.... or which I think is being asserted.

 

[ArmedBear]

To be honest, though, I would be really surprised if even the liberal justices voted against incorporation of the 2A. I think that will be a unanimous opinion on the issue of incorporation.

It's hard to figure out exactly how certain judges think.

However, I wonder whether some wouldn't at least worry about the impact on the whole incorporation doctrine, were they to decide that the 2nd Amendment simply isn't incorporated.

Could that lead to a "domino effect" that even the judge farthest to the left would dread? Or might a judge on the other end of the spectrum WANT to undermine incorporation?

What a system we have created here...

 

[Phatty]

It's hard to figure out exactly how certain judges think.

For sure. At the end of the day, some of the "conservative" justices could vote against incorporation and some of the "liberal" justices could vote for it.

The main reason why I think the liberal justices will join the conservative justices on the incorporation issue is because a lot of the liberal commentary I have read agrees that the 2A should be incorporated against the states. Heller decided a hotly debated issue last year about the collective right v. individual right interpretation of the 2A, in which a lot of liberals did not feel that the 2A granted an individual right. However, now that the issue has been decided, even the liberals concede that there is no justification for refusing to incorporate that individual right against the states.

 

[Zoogster]

She's really getting hit with recusal in regards to the 2nd's incorporation. Can someone opine on how her recusal would affect the upcoming SCOTUS incorporation case? -- i.e. would her recusal tip the scales in our favor?

The main issue is not immediate changes she will have as far as the 2nd is concerned. The issues will be in the future. She is 54 years old, and women generaly live longer than men. The position is a lifelong appointment.
She could end up being a justice for around 30 years.


Her positions have always been against the 2nd, her views as stated and available through her career are the academic liberal views as ArmedBear stated earlier.
In fact while she thinks she has a unique opinion and unique experiences in her statements, her views seem to be extremely stereotypical, and her insight beyond what she has been taught through formal education very limited.
Not very smart for a Supreme Court Justice.
You might think that is good because she would be less capable of articulating arguments against higher caliber justices, but at the same time it means she will be stubborn in her education formed views.
She is very educated and experienced, but that is not the same as possessing a high intellect.
It means she will be less capable or willing to view perspectives of another time period, with another culture, and with views like those possessed by the founders when they wrote the Constitution. Which is an important part of deciding cases that are unique and outside previous education.
To think within the spirit of the founders.

Additionaly her racial remarks are troublesome. Every single one of the founding fathers was a white male, the very type of person she claimed she is superior to in making certain decisions. Not only that, but from a different time period, with different concerns, etc with many other reasons to dismiss what they said if someone is so inclined...
So maybe she will make better decisions on what our rights are than any of them ever could?
That view is dangerous not so much for the racism itself, but because it shows she may have some contempt for the capabilities of the founders and the documents they produced. Documents she will be tasked with interpreting in ways that decide the rights the government will recognize.
That would make her less likely to preserve them, and more likely to "improve" them as she sees fit.

 

[GRIZ22]

She will be confirmed unless she acts like a buffoon in front of the confirmation hearing. That's the way it is. I just saw her on TV and in regards to the RKBA she said "I know how important the RKBA is to many Americans....I even have a Godchild who is a member of the NRA".

What a qualification!

 

[dirt_j00]

Thanks Phatty and Zoogster -- this is troubling.

 

[Lou McGopher]

Being a libertarian, and believing that some aspects of judicial conservatism are utter claptrap, I don't have a problem with "emanations and penumbras".

The proper way to do such things (from a legal standpoint) would be to point at the 9th and 10th Amendments for justification, rather than for the judges to say, "Ooohh... I've got a feeling about this."

The 2nd has not been infringed upon nearly as much as the 9th and 10th have. Of course, strictly obeying the 9th and 10th amendments would put a lot of bureaucrats out of a job, so don't expect it to happen anytime soon.

 

[ArmedBear]

The proper way to do such things (from a legal standpoint) would be to point at the 9th and 10th Amendments for justification, rather than for the judges to say, "Ooohh... I've got a feeling about this."

Quite true.

It would be far better to have a ruling that says, "The Constitution doesn't say you can make a law about this, so you can't."

I just don't believe in fighting against a ruling that advances individual rights and/or limits government power. There's an implied right to privacy? Fine with me. Now apply it to EVERYTHING.

...and I'm not holding my breath for the former.

 

[Tom Servo]

To be honest, though, I would be really surprised if even the liberal justices voted against incorporation of the 2A. I think that will be a unanimous opinion on the issue of incorporation.

It's going to be hard for them not to vote for incorporation. Gura's argument calls for a re-evaluation of Slaughterhouse and Cruikshank, the two precedents most frequently cited as not allowing for incorporation.

I doubt anyone wants to defend those precedents as valid. Cruikshank all but validated the Colfax massacre and allowed for over a decade of violence and oppression afterwards.

As the Cato brief states, the modern consensus is that the Slaughterhouse ruling was plainly defective and needs to be revisited:

The doctrine of stare decisis ["the decision stands"] is particularly inapt with respect to the Slaughter-House Cases, not only because of the extreme violence that opinion did to constitutional text and history, but because the purposes of the doctrine would not be served by refusing to revisit this particular mistake.

When Leahy put Sotomayor on the spot yesterday (transcript), she claimed she was only deferring to precedent. Once on the Supreme Court, she will no longer have that excuse.

Bear in mind, this case is going to have some big ramifications, well beyond the 2nd Amendment. It demands a review and evaluation of the whole history of incorporation.

Of course, we're all just guessing at the moment. She could surprise us, as Roberts did by swinging Right. She's written a few opinions very supportive of individual rights, a couple of which were quite emphatic.

Phatty has a good point. Even if our worst fears are founded, we're still looking at a safe majority.

 

[Phatty]

Sotomayor refused to answer the question: "Do citizens have a right to self-defense?"

That is very troubling.

 

[dirt_j00]

Yeah, I saw that. Seemed like a simple question.

 

[30mag]

"Where, as here, a statute neither interferes with a fundamental right"

Which is the fundamental right to own a nunchuka, right?

 

[FiREhAwk]

She might as well of plead the 5th

 

[Lone_Gunman]

To those who oppose Sotomayor, I must ask, why resist?

Her confirmation is certain given the make up of the Senate.

Her positions on many issues are bad, but what do you expect from an Obama nominee? I am worried if she is not confirmed, we will do worse.

Expending resources to oppose her does not make sense to me.

 

[ArmedBear]

To those who oppose Sotomayor, I must ask, why resist?

Very simple.

Political capital.

If Obama wants to spend it on a far-left affirmative action hire*, make him spent as much as possible.

This is a game of inches. Play, or get off the field. Score points whenever you can. Don't wait for the 105 yard touchdown reception that gets played over and over on the evening news, while the other team beats the crap out of you with field goals.

* Let's face some facts here: were she not a Puerto Rican female, we'd never have heard of her. That doesn't mean she's less qualified than any number of others, just that we know why SHE was picked over a pile of other people who attended Ivy League schools. More power to her; we all get ahead in whatever way we can. But it's not her "story" that got her nominated -- lots of people grew up in less-fashionable New York neighborhoods with one parent -- and it's not that she is a shining star of the field, either.

It amused me to see Juan Williams this morning, claiming that the Republicans has turned this into "racial politics." Nobody had to TURN anything.

That's why it's hard to avoid political questions and issues here. She's a purely political animal, and this is a purely political nomination.

 

[BHP FAN]

Why did the Left oppose ALL of Bush's appointees? It's a strategy,or tactic.

 

[Phatty]

To those who oppose Sotomayor, I must ask, why resist?

Her confirmation is certain given the make up of the Senate.

Criticizing her views and bringing them to the public's attention is never a waste of time. You're right that her confirmation is all but certain. But does that mean we should just throw due diligence out the window and immediately hold a vote?

I am worried if she is not confirmed, we will do worse.

If a President's first choice is rejected because his/her views are seen as too extreme one way or the other, the next choice is almost always less controversial. It wouldn't make sense for a President to nominate an even more-extreme person after suffering a defeat. Regardless, that won't happen here because Sotomayor is a sure thing.

 

[leadcounsel]

I read today that she promises to keep an open mind about the 2A because "a godchild is a member of the NRA and she has friends that hunt..."

It's not looking good...

 

[Phatty]

Also, when you sort through the more than 95% of non-answers and irrelevant answers by Sotomayor, you do learn some new things about her beliefs and philosphy, which can be used to help predict how she may vote in future cases.

 

[ArmedBear]

the more than 95% of non-answers and irrelevant answers by Sotomayor

Those ARE her philosophy.

So far as I can see it, her philosophy is: get into a position of power by whatever means necessary, then use that position to try to force her politics on anyone she can.

As I posted far above: that's NOT a judicial philsophy, at all.

 

[RP88]

regardless of her philosophy, it will be really surprising if the 2A is not incorporated. It would basically create a mess for the rest of the rights when it shows that the bill of rights apparently does not speak of rights of the people (isn't that the point of incorporation in regard to the rights listed in the bill of rights?). I suppose that is the line to walk on when it comes to selective incorporation.