I just heard a report on National Public Radio that said one of the reasons the far right is opposing the nomination of Judge Sonia Sotomayor to the US Supreme Court is her opposition to Second Amendment guarantees of the right to own and bear arms.
No surprise there, really. But the "reasoning" behind the far right's stand is surprising, and may ultimately boomerang against it in other and unexpected ways. In a US Second Circuit Court of Appeals decision rendered earlier this year, Judge Sotomayor joined in an opinion that said the state of New York had the right to prohibit private ownership of the martial arts weapon called nunchuks, and that the US Constitution's Second Amendment was not triggered by (and thus did not override) the state's law. In other words, she agreed that the Second Amendment prohibited only the federal government from restricting individuals' rights to own and bear arms. The several states are free to regulate the ownership of arms as they see fit.
One Ken Blackwell, from the Family Research Council, claims that Sotomayor is wrong, and that the Second Amendment trumps any other attempt to regulate individual ownership of weapons. If he is correct, he has just reversed the traditional right wing position on the entire Bill of Rights and the concept of federal power. He is arguing AGAINST the concept of states' rights, just as Supreme Court Justice Antonin Scalia did last year in a ruling that struck down Washington, D.C.'s law restricting private ownership of handguns. As I implied in a post dated 6/27/08 entitled "Strict Constructionist--NOT!", Scalia, and now Mr. Blackwell, did not heed the admonition to beware the law of unintended consequences. Let me quote from my own prior post:
The irony here is that Scalia's ruling actually confirms that the US Constitution implicitly affirms the people's right to privacy. Scalia believes no right to privacy exists because it's not "within the four corners" of the document. But his ruling makes it the sine qua non for implementing the Second Amendment (you have the unfettered right to keep handguns in your home, remember). This is the identical rationale the Court has cited in the past for implementing the other rights explicitly enumerated in the Bill of Rights. Oops! Scalia didn't see that one coming, I'll wager.
To inject a bit of sanity into the current discussion, UCLA law professor Eugene Volokh noted that while Judge Sotomayor can be expected to take a different view of the Second Amendment from the preferred view of, say, the National Rifle Association, the judge was not plowing radical ground by her joining in the majority opinion in the nunchuks case. Nunchuks are a weapon, but they are not guns; apparently, there is a lot of US Supreme Court precedent supporting Judge Sotomayor's position in the nunchuks case.
I made the observation in an undergraduate US Constitutional History class that it was ironic that the Fourteenth Amendment, designed to protect individual civil rights, wound up (through Supreme Court rulings) protecting businesses and commerce while the Court wound up using the Constitution's Interstate Commerce Clause to protect individual civil rights and liberties. I see a similar irony here. The Second Amendment, designed to protect militias' rights to own and bear arms, has now been used (albeit not intentionally) to enshrine the concept of the right to privacy and the supremacy of federal power at the expense of states' rights . . . states' rights being the concept traditionally favored by those who insist on an unfettered right to own and bear arms.
Kind of makes me wish I were still able to practice law and to bring a case before the Supreme Court. I would love to see Justice Scalia's face when his own ruling regarding an individual's rights to gun ownership is used to support an argument favoring federal supremacy over a state's right to restrict other individual liberties.
Hey--I can dream, can't I?
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