Sonia Sotomayor on Gun Rights and Racial PreferencesWhy libertariansand everyone who believes in limited governmentshould worry about Barack Obama's Supreme Court nominee
Damon W. Root <http://www.reason.com/staff/show/199.html> | May 26, 2009 President Barack Obama's announcement<http://www.nytimes.com/2009/05/27/us/politics/27court.html?hp>that he wants federal appeals court Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter comes as something less than a shock. For months, Sotomayor's name has topped most lists of potential candidates. With her compelling personal story, which stretches from a Bronx, New York housing project to Yale Law School to the federal Second Circuit Court of Appeals, Sotomayor's likely appointment as the Court's first Hispanic justice nicely complements Obama's own "only in America" narrative. But when it comes to her judicial philosophy, there are some real causes for concern. In particular, on the hot-button issues of affirmative action and Second Amendment rights, her record suggests a decidedly illiberal vision of constitutional law. Consider affirmative action. Last month, the Supreme Court heard oral arguments in the case of *Ricci v. Destefano*<http://www.reason.com/news/show/133138.html>, which centered on charges of reverse discrimination at the New Haven, Connecticut fire department. In 2003 the department administered a test to fill 15 captain and lieutenant vacancies, but when the results came in, no African Americans made the cut (14 whites and one Hispanic earned the top scores). In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work. Ricci's suit was initially thrown out at the district court level, prompting an appeal to the Second Circuit. At that point Sotomayor joined in an unsigned opinion embracing the district court's analysis without offering any analysis of its own. This prompted fellow Second Circuit Judge Jose Cabranesa liberal Democrat appointed by President Bill Clintonto issue a stern rebuke<http://ct.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CC02%5C2008%5C20080612_0001355.C02.htm/qx>. "The opinion contains no reference whatsoever to the constitutional claims at the core of this case," Cabranes wrote. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal." It's an important point. *Ricci* gets at the very heart of the debate over whether the Constitution should be interpreted as a colorblind document. As the liberal legal commenter Emily Bazelon noted<http://www.slate.com/id/2219037/>at *Slate*, "If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed." Given that the Court is likely to side with Ricci and his fellow plaintiffs, Sotomayor's silent endorsement of New Haven's reverse discrimination is certain to come back to haunt her during her confirmation hearings. Equally troubling is Sotomayor's record on the Second Amendment. This past January, the Second Circuit issued its opinion in *Maloney v. Cuomo*<http://lawprofessors.typepad.com/crimprof_blog/2009/02/second-circuit.html>, which Sotomayor joined, ruling that the Second Amendment does not apply against state and local governments. At issue was a New York ban on various weapons, including nunchucks <http://en.wikipedia.org/wiki/Nunchaku>. After last year's *District of Columbia v. Heller*, which struck down DC's handgun ban, attention turned to whether state and local gun control laws<http://www.reason.com/news/show/129309.html>might violate the Second Amendment as well. "It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right." But contrast that with the Ninth Circuit's decision last month in *Nordyke v. King<http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf> *, which reached a very different conclusion, one that matches the Second Amendment's text, original meaning, and history: We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition." Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the "true palladium of liberty." Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. This split between the two circuits means that the Supreme Court is almost certain to take up the question in the near future. What role might soon-to-be Justice Sotomayor play? As gun rights scholar and Independence Institute Research Director Dave Kopel told me via email, Sotomayor's opinions "demonstrate a profound hostility to Second Amendment rights. If we follow Senator Obama's principle that Senators should vote against judges whose views on legal issues are harmful, then it is hard to see how someone who supports Second Amendment rights could vote to confirm Sonia Sotomayor." As a respected jurist with an impressive legal resume, Sotomayor appears just as qualified to sit on the Supreme Court as any recent nominee. But from the standpoint of individual liberty and limited constitutional government, there are significant reasons to be wary of her nomination. *Damon W. Root* <[email protected]>* is a *Reason* associate editor**.* *Discuss this article online.<http://www.reason.com/blog/show/133725.html#comments> * Help Reason celebrate its next 40 years. Donate Now!<https://www.reason.com/donatenow/donate.php> Send this article to: - StumbleUpon<http://www.stumbleupon.com/submit?url=http%3A%2F%2Fwww.reason.com%2Fnews%2Fshow%2F133722.html&title=Sonia+Sotomayor+on+Gun+Rights+and+Racial+Preferences%3A+Why+libertarians%26mdash%3Band+everyone+who+believes+in+limited+government%26mdash%3Bshould+worry+about+Barack+Obama%27s+Supreme+Court+nominee> - Digg<http://digg.com/submit?phase=2&url=http%3A%2F%2Fwww.reason.com%2Fnews%2Fshow%2F133722.html&title=Sonia+Sotomayor+on+Gun+Rights+and+Racial+Preferences%3A+Why+libertarians%26mdash%3Band+everyone+who+believes+in+limited+government%26mdash%3Bshould+worry+about+Barack+Obama%27s+Supreme+Court+nominee> - Reddit<http://reddit.com/submit?url=http%3A%2F%2Fwww.reason.com%2Fnews%2Fshow%2F133722.html&title=Sonia+Sotomayor+on+Gun+Rights+and+Racial+Preferences%3A+Why+libertarians%26mdash%3Band+everyone+who+believes+in+limited+government%26mdash%3Bshould+worry+about+Barack+Obama%27s+Supreme+Court+nominee> - Fark<http://cgi.fark.com/cgi/fark/farkit.pl?u=http%3A%2F%2Fwww.reason.com%2Fnews%2Fshow%2F133722.html&h=Sonia+Sotomayor+on+Gun+Rights+and+Racial+Preferences%3A+Why+libertarians%26mdash%3Band+everyone+who+believes+in+limited+government%26mdash%3Bshould+worry+about+Barack+Obama%27s+Supreme+Court+nominee> - Facebook<http://www.facebook.com/share.php?u=http%3A%2F%2Fwww.reason.com%2Fnews%2Fshow%2F133722.html> Try Reason's award-winning print edition today<https://ssl.drgnetwork.com/ecom/rsn/cgi/subscribe/order?org=RSN&publ=RS>! Your first issue is FREE if you are not completely satisfied. - Subscribe with RSS <http://www.reason.com/rss> - Print This <http://www.reason.com/news/printer/133722.html> - Email This <http://www.reason.com/news/sendtofriend/133722.html> More Articles by Damon W. Root <http://www.reason.com/staff/show/199.html> - *Sold Down the River <http://www.reason.com/news/show/133410.html>* How Mississippi Gov. Haley Barbour sabotaged eminent domain reform * (5/11)* - *Soundbite: The Raw Deal <http://www.reason.com/news/show/132621.html>* *(4/29)* - *Fighting Fire with Fire <http://www.reason.com/news/show/133138.html>* A debate in the New Haven Fire Department over discrimination in the name of equal opportunity *(4/28)* On Wed, May 27, 2009 at 1:35 PM, Bruce Cohen <[email protected]>wrote: > > > For Immediate Release: > > Wayne Root on FOX News live in New York > with Glenn Beck and Judge Napolitano > and FOX & Friends on Friday > > Root also on National Radio today with > Mancow, Jerry Doyle and Lars Larsen > > New York, N.Y.--May 27, 2009-- 2008 Libertarian VP Candidate > Wayne Allyn Root will appear on "The Glenn Beck Program" > on FOX News Channel today (Wednesday) at 5 PM EST/2 PM > PST to discuss the federal government's General Motors bailout > and the damage Obama is doing to the free market. > > Root is also set to appear on FreedomWatch on FOXNews.com > with host Judge Andrew Napolitano at 2:15 PM EST/11:15 AM PST > today complete with a FOX News Channel live interview on the set > of the show at that time. > > Root is also a guest today (Wednesday) at 3:30 PM EST/12:30 > PM PST on the nationally-syndicated "Jerry Doyle Show." > > Root is also a guest tonight at 6:20 PM EST/3:20 PM PST on the > popular nationally-syndicated Lars Larsen Show to discuss the > Libertarian view of Obama's new Supreme Court pick. > > Root guested this morning on The Mancow Show. > Mancow will join Root on FreedomWatch this afternoon. > > And Root is a guest on FOX & Friends the FOX News > national morning show on Friday at 7:15 AM EST/4:15 PM PST. > . > Wayne Allyn Root was the 2008 Libertarian VP candidate. > His new book: The Conscience of a Libertarian: Empowering > the Citizen Revolution with God, Guns, Gambling & Tax Cuts > is available for pre-sale at Amazon.com. > > For more of Wayne's visit his web site at: > www.ROOTforAmerica.com > > [Non-text portions of this message have been removed] > > > [Non-text portions of this message have been removed] ------------------------------------ ForumWebSiteAt http://groups.yahoo.com/group/Libertarian Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/Libertarian/ <*> Your email settings: Individual Email | Traditional <*> To change settings online go to: http://groups.yahoo.com/group/Libertarian/join (Yahoo! ID required) <*> To change settings via email: mailto:[email protected] mailto:[email protected] <*> To unsubscribe from this group, send an email to: [email protected] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
