SESSIONS CONCERNS OVER SOTOMAYOR’S SECOND AMENDMENT RULINGS

“Judge Sotomayor has twice said that the Second Amendment does not give you and me a fundamental right. The opinions she has joined have provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. Her opinions lack any real discussion of the importance of these issues.”

**Video Footage of Sessions’ Remarks Available Here: http://www.youtube.com/senatorsessions

WASHINGTON—Speaking in the Senate today, U.S. Senator Jeff Sessions (R-AL) expressed concerns regarding Judge Sonia Sotomayor’s judicial decisions in Second Amendment cases, noting that she has concluded that the right to keep and bear arms is not a fundamental right guaranteed to all Americans.

Senator Sessions’ remarks, as prepared, follow:

The individual right to keep and bear arms, a fundamental right guaranteed by the explicit text of the Second Amendment, is at risk. Although the Supreme Court recently held that the Second Amendment is an individual right, many significant issues remain unresolved.

The Supreme Court—including whomever is confirmed to replace Justice Souter—will have to decide whether the Second Amendment has any force or whether, as a practical matter, to eviscerate its guarantees.

The Second Amendment says that “the right of the people to keep and bear Arms, shall not be infringed.” Not all of the Amendments are so clearly a personal right. The First Amendment, which protects our freedom of speech and religion, talks about restricting Congress. In District of Columbia v. Heller, the Supreme Court recently held that the Second Amendment “confer[s] an individual right to keep and bear arms.” This is consistent with “the right of the people to keep and bear Arms.” This was a welcome and long overdue holding.

Despite this holding, many important questions and issues remain. For example, it is still unsettled whether the Second Amendment applies only to the Federal government or to the state and local governments as well. This question will determine whether individuals will truly have the right to keep and bear any arms. If a state or local government is not bound by the Second Amendment, then it may pass all sorts of restrictions on firearms use and ownership. They may even ban the ownership of guns altogether. Clearly, this is a critically important issue.

President Obama, who nominated Judge Sotomayor, has a rather clear and limited view of what the Second Amendment means. In 2008, he said that “just because you have an individual right does not mean that the state or local government can’t constrain the exercise of that right.” These are exactly the issues that the Supreme Court has not resolved—can states and localities constrain the exercise of the right in any they want?

In 2000, as a state legislator, he cosponsored a bill that would limit purchases of handguns to one per month. In 2001, also as a state senator, he voted against allowing the people protected by domestic violence protective orders to carry handguns for protection. This record is disconcerting, to say the least.

So I turn now to Judge Sotomayor, whom President Obama nominated, and her record on the Second Amendment. That record is fairly scant, but we do know that Judge Sotomayor has twice said that the Second Amendment does not give you and me a fundamental right. The opinions she has joined have provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. Her opinions lack any real discussion of the importance of these issues. Judge Sotomayor has gone from A to Z, without explaining how she got to B and C.

For example, in her most recent opinion in Maloney v. Cuomo, which asked whether Heller’s guarantees would apply to the states, Judge Sotomayor spent only two pages to explain how she reached her conclusion. The Seventh Circuit answered the same kinds of questions by engaging in a careful analysis that occupied eight pages—four times that of Judge Sotomayor. The Ninth Circuit, which disagreed with Judge Sotomayor’s conclusions, dedicated approximately 33 pages to considering the same kinds of critical questions. Furthermore, in deciding that the Second Amendment is an individual right, the majority in the Supreme Court dedicated 64 pages to this important issue. Including dissents and concurrences, the entire Court generated 157 pages of analysis. Judge Sotomayor only wrote two pages in considering as issue at least as important as Heller. Judge Sotomayor’s lack of attention and lack of analysis are troubling.

These truncated opinions also suggest a troubling tendency to avoid or casually dismiss difficult Constitutional issues of exceptional importance. Other examples of this may include the New Haven Firefighters case, Ricci v. DeStefano, which is currently pending before the Supreme Court, and the Fifth Amendment case, Didden v. Village of Port Chester, which was recently discussed in detail in the New York Times.

I am not going to ask her how she would decide cases in the future, but it is fair and reasonable to ask her how she reached her conclusions.

I am not the only one who has been troubled by Judge Sotomayor’s Second Amendment jurisprudence.

As I mentioned previously, the Ninth Circuit disagreed with Judge Sotomayor and held that the Second Amendment is actually a fundamental right applicable to the states and localities.

Additionally, in a June 10 editorial, the liberal Los Angeles Times disagreed with Judge Sotomayor’s view in Maloney as to whether the Second Amendment applies against states and localities. Moreover, in a June 10 op-ed published in the Washington Times, a leading academic argued that the decision in Maloney was fatally flawed.

These are critical questions that will determine whether the people of the United States—all of the people—will have the right guaranteed by the Second Amendment.

Given the importance of these questions, it is more than reasonable for fellow Senators to ask Judge Sotomayor to clarify how she reached her decisions in the cases she has joined and what she understands to be the relevant precedents. I hope Senators will ask probing and fair questions, and I hope Judge Sotomayor will provide full and satisfactory answers.