The Independence Institute’s David Kopel, writing in The Washington Times, takes Sonia Sotomayor to the judicial woodshed for “devolving” on the gun rights issue. He points out a contradiction between her statements last summer in support of the Supreme Court’s Heller precedent and her recent siding with the minority in the Chicago gun rights case (McDonald v. Chicago), which shredded Heller's basis.
In so doing, Kopel gives us an important tie-in with the recently completed Elena Kagan hearings. He writes:
Ominously, Justice Sonia Sotomayor joined the Breyer dissent — contradicting what she told the U.S. Senate and the American people last summer.
Regarding the key issue in McDonald — whether the 14th Amendment makes the Second Amendment enforceable against state and local governments — Justice Sotomayor resolutely refused to tell the senators how she might vote. So in voting against incorporating the Second Amendment, Justice Sotomayor was not inconsistent with what she had told the Senate. But regarding Heller, her actions as a justice broke her promises from last summer.
The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense."
Contrast that with her Senate testimony: "I understand the individual right fully that the Supreme Court recognized in Heller." And, "I understand how important the right to bear arms is to many, many Americans."
An important lesson can be gleaned from this for Kagan: on issues of respecting court precedent with which she disagrees, don’t believe a word she says.
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