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Thursday, May 28, 2009

Judge Sotomayor: The 2nd Amendment Collectivist

The 2nd amendment is among the most hotly debated portion of the U.S. Constitution. Among the most basic debates is the issue of whether or not the 2nd amendment guarantees an individual's right to carry firearms or is only for an organized group. Because of the wording of the actual amendment, there is some room for interpretation.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Here is how I analyzed the debate over this amendment.

Now, the allusion to the militia combined with the use of the words "the people" has allowed gun control advocates to make the argument that the second amendment was meant only to protect organized state militias.

In my opinion, this is a nonsensical argument made cynically and disingenuously by folks with an agenda. I think the founding fathers used wording that none thought at the time would create controversy and yet more than two hundred years later we are still embroiled in controversy.


On a practical level, none of the amendments to the Constitution are amendments that give rights to the government, but rather to the people. In order to believe that the second amendment is collectivist, you would need to believe that for unknown reasons the founding fathers wanted to enumerate rights to the government among in the second amendment, even though each and every other amendment enumerates rights to the people itself.

Evidence is coming out that Judge Sotomayor is not only a collectivist but with a history of being against the 2nd amendment. The first piece of evidence was her college thesis. The thesis entitled, Race in the American Classroom, and Undying Injustice: American "Exceptionalism" and Permanent Bigotry, and Deadly Obsession: American Gun Culture, made this assertion.

In this text, the student Sotomayor explained that the Second Amendment to the Constitution did not actually afford individual citizens the right to bear arms, but only duly conferred organizations, like the military. Instead of making guns illegal, she argues that they have been illegal for individuals to own since the passing of the Bill of Rights.

This is a standard boiler plate collectivist argument. That said, this thesis was nearly 30 years ago. Judge Sotomayor wrote an opinion significantly more recently that lends more credence to her collectivist credentials. The case is Maloney V Cuomo. This case challenged the state of New York's 30 plus year ban on numchuks. In writing her opinion, Judge Sotomayor stated this.

United States Court of Appeals for the Second Circuit affirmed the decision of the court below, finding that U.S. Supreme Court precedent from 1886 (Presser v. Illinois) was still good law, and that the Second Amendment does not apply to the states. The Second Circuit also found that New York has a "rational basis" for prohibiting the possession of nunchaku in general.

Now, the idea that Sotomayor believes that the 2nd amendment only applies to the FEDERAL GOVERNMENT is one that raises a lot of troubling issues. For instance, if she believes that the 2nd amendment only applies to the federal government, how does she feel about the first amendment? Does she believe that a state government can engage in censorship? It wouldn't be logical to not believe this if she believes the 2nd amendment doesn't apply to states but only to the federal government.

Second, what are her views on the tenth amendment?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Generally, we view the tenth amendment as a state's rights issue. In that, we believe that all that isn't enumerated in the constitution is left to the states. Yet, it is clear from the text that states have no rights to make policy in anything that is specifically prohibited in the Constitution. The 2nd amendment is one such issue. If the 2nd amendment gives every individual the right to bear arms, how can Judge Sotomayor say that it only prohibits the federal government from infringing on this right?

Such a view would effectively dilute the idea of any rights. If Judge Sotomayor sees the 2nd amendment as only a federal government issue then effectively there are no rights. That's because by her view the states can effectively infringe on any right enumerated in the Constitution. A state could pass a law in conflict with the fourth amendment and allow warrantless searches and Judge Sotomayor would say that the 4th amendment only applies to the Federal government.

If you want to know just how dangerous an activist judicial philosophy is it is embedded in the idea that a right enumerated in the Constitution only applies to the Federal government. Such a view of the Constitution could lead a judge to essentially make nearly any law anywhere Constitutional.


Anonymous said...

The key operative word in the 2nd Amendment that most gun grabbers willfully ignore is "....the right of the people to KEEP (own,possess,retain)and bbear arms shall not be infringed"...when that was written,everyone between the ages of 18 and 55 was expected to be a member of the local militia...and when mustered,they would bring their musket,long rifle,or brace of pistols and the local government would furnish the necessary powder and shot...the fact that Ms Sotomayor never took that word 'KEEP' into account when writing her opinion renders her intellectually unable to seriously consider such weighty matters as a member of SCOTUS

Anonymous said...

I'm going to assume, Mike, that you are unfamiliar with the incorporation doctrine from Constitutional Law.

In the beginning, the Supreme Court said the Bill of Rights did not apply to the States. This comes from Barron v. Baltimore, an 1833 case that hasn't actually been overturned.

Congress tried rectifying this with the 14th Amendment, but the Supreme Court was still reluctant to apply the Bill of Rights to the States. In the "Slaughterhouse Cases" where the Supreme Court rejected the idea that State laws in violation of the Bill of Rights "abridge the privileges or immunities of citizens of the United States."

It was not until Gitlow v. New York in 1925 where the Supreme Court endorsed the doctrine of selective incorporation, holding that infringing on the Freedom of Speech was a denial of due process of law by the States. Since then, several more cases have "incorporated" other parts of the Bill of Rights through the Due Process Clause, such as Gideon v. Wainwright and Mapp v. Ohio.

The 2nd Amendment, however, has never been incorporated because the Supreme Court has never heard a case about it. Even in District of Columbia v. Heller, the case that recently struck down DC's gun control law, the Supreme Court claimed there was no incorporation question presented. As a result, Judge Sotomayor is correct: Presser v. Illinois, which was heard before the incorporation doctrine was established, is still the controlling law.

And Mitchell, considering her educational background, if you have a problem with Sotomayor's intelligence, its less likely that she's insufficiently intelligent than it is that you just plain don't know what intelligence is.

B. Johnson said...

The only reason that people, including misguided Judge Sotomayor, still debate the 2nd A. these days is that they evidently haven't researched the Constitution and its history for themselves, seemingly foolishly putting their faith in minority perversions of the Constitution instead.

Regarding the 2nd A., the Founders had rejected the idea of making the Bill of Rights apply to the states. However, the post-Civil War 14th A. changed things. Official congressional records show that the 14th A. applied the Constitution's privileges and immunities to the states, particularly those contained in the Bill of Rights, including the 2nd Amendment.

See the 2nd A. in the middle column of the page linked to below. The page is a part of John Bingham's official clarification of what the 14th A. applied to the states, Bingham being the main author of Sec. 1 of the 14th Amendment.

John Bingham's clarification of the 14th AmendmentThe bottom line is that activist, Constitution-ignoring judges like Judge Sotomayor have no business being a member of the USSC any more than misguided, state power usurping Socialist puppets like Obama have any business in the Oval Office.

mike volpe said...

Yeah, you can play all the tricky word games you want, however there are all sorts of bad decisions by the Supreme Court. I follow what the Constitution says, not what some SC decision said.

The tenth amendment is clear. If it isn't in the constitution, then states have full power. This, however, is in the Constitution, incorporation clause or not.

A state that violates the second amendment is violating the constitution and both the 2nd and 10th amendment back me up. I will go with the Constitution over any SC decision.

Anonymous said...

Well Mike, the Constitution says that the Supreme Court determines what the Constitution says.

I'm not going to tell you that you're not allowed to argue that only people who agree with you are allowed to govern this country based exclusively on your personal interpretation of the Constitution, but that would be the argument of a tyrant.

mike volpe said...

yes, I know how the constitution works, however the Constitution is pretty clear here. There are books written about case law that was misinterpreted by the Supreme Court, and so I trust the Constitution itself a lot more than I trust a specific court case. In this case, the Constitution is clear. Anything not in the Constitution is left to the states. The right to bear arms is in the Constitution meaning it isn't left to the states.

troy2000 said...

You've all been had, you know. Sotomayor's thesis was about a Puerto Rican Governor's life and indfluence on the island...not about guns or race.

Anonymous said...

You guys debate the meaning of a document as if it were the Bible or better. Brainwashed??

The "right" to carry a gun has caused more unnecessary deaths in the U.S. than anything else.

Other countries look at us and laugh. Not that we care because we ARE the greatest country in the world.

mike volpe said...

I sourced my material and frankly, the thesis is a minor point.

As to guns, you back up your claim with absolutely nothing. So, I don't know how you figure that the 2nd amendment has caused all these deaths. I don't really care what the rest of the world thinks. The rest of the world mocks the U.S. until they need something.

Simon said...

Spoken like a true patriot Mike!

If you need proof that high gun ownership is a major contributing factor to violent injuries and death then you have absolutely no common sense.

If you don't understand that guns NOT being in the hands of people in the first place is going to greatly reduce violence then you truly are brainwashed. [or worse]

As for other countries laughing at us, well we are the greatest country in the world and it is not possible that something WE do could be folly.

Because since we are the strongest, we shouldn't care what anyone says about us or learn from them.

Anyone who says otherwise clearly isn't a true patriot and must not truly love this great nation of ours.

Go live in wishy-washy socialist lefty Europe I say to such people. Begone with you!

mike volpe said...

i notice in that rant, Simon, there was still no proof that the
2nd amendment leads to more violence. As they say, if you outlaw guns only the outlaws will have guns. You can make gun ownership illegal, as it is in the city of Chicago (my hometown) and that won't necessarily stop violence, as it hasn't in my hometown.

In Chicago, the only folks that have guns are the cops and the gang bangers and the citizens are left unprotected.

Editor said...


Infinite Wisdom said...

What started with enticing legal arguments has ended with pathetic, cruel jabs at individuals summation of their understanding of the world.
#1-If you believe that govt. police forces can and will protect you at all times then please volunteer to turn in all weapons, including heavy blunt and sharp objects, to the police and post a sign saying that you will report, with the highest degree of accuracy and urgency, to the police all attempts by potential criminals to rob or otherwise invade your private quarters because you are without any method of saving yourself. I would not recommend you asking your neighbor to do the same as that may generate some hostile reaction. Please let the rest of us decide if we want to protect ourselves and families,,,or not.
#2-Understand that Sotomayor is selected by Obama for her opinions on issues that resemble his. He also expects and believes she will use her position to adjust society through any legal interpretations, including those gathered from space signals, if those interpretations will lead to an "improved" structuring of the US in Obama's world view. I think we are getting a very good idea of what his world view is.
#3-Obama is not a big fan of the Constitution, despite being a "scholar". Listen to his understanding and his wishes and you will see that he would like to see some improvments so he has no problem with seeing "CHANGE" happen to the rulings in order to reconstruct America. You can deny it, you can call me names, but you will get to live it and I am right.