Feingold (D-WI) questions Sotomayor on the 2A

[GarandFan]

Several Senators have questioned Sotomayor on the issue of the 2A, and incorporation via the 14A. For the most part (in my opinion), she has not been hostile, but has indeed been elusive. An interesting tidbit ... based on Feingold and Kyl quesions, Sotomayor has stated she would recuse herself if the Maloney incorporation case alone is granted cert. But she would not say she'd recuse if Maloney and McDonald were conjoined. She said she'd "seek council." Kyl pushed her hard on that, and she eluded the answer.

 

Perhaps some of the best questioning on this issue has been from a democrat Senator from Wisconsin, Russ Feingold. He's a pretty solid supporter of the RKBA. This is worth the read.

 

Source:

http://www.washingtonpost.com/wp-dyn/conte...71402355_5.html

 

FEINGOLD: Good. I appreciate that answer.

 

Let me go to a topic that Senator Leahy and Senator Hatch discussed with you at some length, the Second Amendment. And I have long believed that the Second Amendment grants citizens an individual right to own firearms.

 

And, frankly, I was elated when the court ruled in Heller last year basically what I think had been a mistake all along, to not recognize it as an individual right.

 

FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.

 

So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.

 

But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.

 

First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?

 

SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.

 

FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?

 

SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.

 

I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.

 

FEINGOLD: Well, let's assume you were able to sit to one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment or any other amendment that has not yet been incorporated through the 14th Amendment should be made applicable to the states? What's the test that the Supreme Court should apply?

 

SOTOMAYOR: That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it...

 

FEINGOLD: But what would be the general test for incorporation?

 

SOTOMAYOR: Well...

 

FEINGOLD: I mean, what is the general principle?

 

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

 

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

 

FEINGOLD: Well...

 

SOTOMAYOR: I'm sorry.

 

FEINGOLD: No, no. Go ahead.

 

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

 

FEINGOLD: And -- and, of course, it is true that, despite that trend that you just described, that the Supreme Court has not incorporated several constitutional amendments as against the states, but most of those are covered by constitutional provisions in state constitutions and the Supreme Court decisions that refuse to -- that refuse to incorporate the federal constitutional protections, like the case involving the Second Amendment, a 19th century case, date back nearly a century.

 

So after Heller, doesn't it seem almost inevitable that, when the Supreme Court does again consider whether the Second Amendment applies to the states, that it will find the individual right to bear arms to be fundamental, which is a word that we've been talking about today.

 

After all, Justice Scalia's opinion said this: By the time of the founding, the right to have arms -- bear arms had become fundamental for English subjects. Blackstone, whose works we have said constituted the pre-eminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. It was, he said, the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense.

 

SOTOMAYOR: As I said earlier, you're a very eloquent advocate, but a decision on what the Supreme Court will do and what's inevitable will come up before the justices in great likelihood in the future. And so I feel that I'm threading the line of...

 

FEINGOLD: OK.

 

SOTOMAYOR: ... answering a question about what the court will do in a case that may likely come before it in the future.

 

FEINGOLD: Well, let me try it in a more -- less lofty way then. We talked of nunchucks before.

 

SOTOMAYOR: OK.

 

FEINGOLD: That's an easier kind of case. But what Heller was about was that there was a law here in D.C. that said you couldn't have a handgun if you wanted to have it in your house to protect yourself. It is now protected under the Constitution that the citizens of the District of Columbia can have a handgun.

 

Now, what happens if we don't incorporate and the people of the state of Wisconsin -- let's say we didn't have a constitutional provision in Wisconsin. We didn't have one until the 1980s, when I and other state senators proposed that we have a right to bear arms provision.

 

But isn't there a danger here that if you don't have this incorporated against the states that we'd have this result where the citizens of D.C. have a constitutional right to have a handgun, but the people of Wisconsin might not have that right? Doesn't -- doesn't that make it almost inevitable that you would have to apply this to the states?

 

SOTOMAYOR: It's a question the court will have to consider...

 

FEINGOLD: I appreciate your patience.

 

SOTOMAYOR: ... and its meaning of Heller. Senator, the Supreme Court did hold that there is in the Second Amendment an individual right to bear arms, and that is its holding, and that is the court's decision. I fully accept that.

 

And in whatever new cases come before me that don't involve incorporation as a circuit -- Second Circuit judge, I would have to consider those -- those issues in the context of a particular state regulation of firearms or other instruments.

[Lou]

I guess I'm surprised that Feingold is such a strong supporter of the Constitution.

I've always viewed him as a rabid liberal.

I'm thrilled that a liberal Democrap would be such a forceful advocate of 2A rights.

[ilphil]

I guess I'm surprised that Feingold is such a strong supporter of the Constitution.

I've always viewed him as a rabid liberal.

I'm thrilled that a liberal Democrap would be such a forceful advocate of 2A rights.

 

If he expects to get any votes north of Milwaukee and Madison it is a good idea to at least pretend to support 2A rights.

[panzermk2]

I guess I'm surprised that Feingold is such a strong supporter of the Constitution.

I've always viewed him as a rabid liberal.

I'm thrilled that a liberal Democrap would be such a forceful advocate of 2A rights.

 

If he expects to get any votes north of Milwaukee and Madison it is a good idea to at least pretend to support 2A rights.

 

Ditto

[ewellnitz]

Ever since Feingold put Hillary in her place during her first few days in the Senate he's been okay in my book.

 

Feingold is super liberal on fiscal policy but is more conservative on the constitution and cenrist family/social issues, generally speaking.

[Ashrak]

Ever since Feingold put Hillary in her place during her first few days in the Senate he's been okay in my book.

 

Feingold is super liberal on fiscal policy but is more conservative on the constitution and cenrist family/social issues, generally speaking.

 

 

McCain Feingold campaign finance reform.....

 

To me, that trumps "put[ting] Hillary in her place".

 

Personal wealth belongs to the individual, speech belongs to the individual. Disguising these issues as "fiscal" doesn't remove the unconstitutional impact they have on personal individual liberties.

 

Something along these lines could well play out.

 

"I, Russ Feingold, support your right to own a firearm, Really I do, but I reserve the right of government, through legislation deemed fiscal in nature, to control your money to the point you could never buy them or the ammunition to go in them. There is this thing called the "commerce clause", you know."

 

How would such a position be any different regarding the Second Amendment than his joint effort with McCain did regarding the First Amendment ( or the Fourth for that matter)? I can respect that such a position, that Feingold is OK in your book, but I would most certainly expect the same thing in return. For he is not OK in my book, not by a long shot.