Other senators have come away from their meetings with Sotomayor concerned about her position on gun rights.
Sen. Jim DeMint, R-S.C., said Tuesday that he was disappointed that the judge refused to say during their visit that the Second Amendment ''protects a fundamental right that applies to all Americans.''
DeMint said Sotomayor's statement on Heller ''doesn't tell us much'' about her view of the issue, noting that she stands by her ruling that held that the Second Amendment only protects against federal government curbs on the right to bear arms -- not state or local limits.
''(H)er opinion was that the hundreds of millions of Americans in the 50 states do not have a fundamental right to bear arms. She refused to back away from that opinion in my meeting with her,'' DeMint said Thursday.
Nor should she have.
As I explained last week, Judge Sotomayor's agreement with a per curiam opinion that the Second Amendment's protections did not apply against state or local regulations is one that is compelled by a trio 19th Century opinions of the Supreme Court (as well as a recent Second Circuit decision) which she -- like her conservative colleagues on the Seventh Circuit -- were powerless to overrule, no matter how wrong they may have been. So, on that ground alone, Judge Sotomayor was correct in her claims to Sen. DeMint.
Moreover, the only body which can determine that the Second Amendment confer a right to keep and bear arms upon citizens against state and local regulation, and overturn those precedents, is the Supreme Court of the United States itself. As of this week, there's not just one but two petitions for a writ of certiorari filed with the Supreme Court on this very issue, each asking the Court to resolve whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the states. It is a large and important issue, and one for which the Court has more-or-less solicited a test case to revisit the question, as indicated Justice Scalia's footnote 23 in for the Heller majority:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
Translated: "Not that we can say it explicitly here, but c'mon. Those old cases got it wrong. They didn't even think the First Amendment applied to the states. Like, duh!"
Accordingly, when confirmed to the Supreme Court Justice Sotomayor will hear and rule upon the very question about which Sen. DeMint asked. It would be a massive breach of judicial ethics for her to pre-judge the issues involved or promise a ruling one way or another to him. You'd think he'd know better than that.