Sotomayor on “fundamental rights” and why average Americans have a different definition than judges.  Clearly most Americans view the 2nd Amendment individual right to own a firearm as a fundamental, natural right that the Constitution recognizes.  Sotomayor seems to assert a definition that defines your fundamental rights as those that the Supreme Court, not the clear words of the Constitution, dictates.

It doesn’t have the same meaning that common people understand that word to mean.  To most people, the word by it’s dictionary term is critically important, central, fundamental.  It’s sort of rock basis.  Those meanings are not how the law uses that term when it comes to what the states can do or not do.

On her signed opinion in the Maloney 2nd Amendment Case finding that the 2nd Amendment is not a fundamental right in New York and the distinction from Heller.  The below argument would lead one to believe that the State of New York could ban all firearms for any purpose at all times, if New York could state a rational basis for the action.

The question in Maloney was different for us.  Was that right incorporated against the states?  And we determined, given Supreme Court precedent, the precedent that had addressed that precise question and said it’s not, it wasn’t fundamental in that legal doctrine sense.  That was the Court’s holding.

Coburn asked Sotomayor “Did the Supreme Court say in Heller that it definitely was not?  Or did they just fail to rule on it?”  Coburn was correcting Sotomayor’s misstating of the Holding in Heller and other pre-incorporation rulings, because she characterized the state of precedent as if the Supreme Court had held that  2nd Amendment does not apply to the state action.

Well, they failed to rule on it.  You’re right.

What are the limitations of the 2nd Amendment?  Sotomayor says yes and states a vague standard of review for gun cases.

It’s also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting.  Andy by that I mean, what the Court with look at is a state regulation of your right.  And then determine can the state do that or not.  So even once you recognize a right, you’re always considering that the state is doing to limit or expand that right and then decide is that OK constitutionally.

Can an American citizen defend themselves?  Do people have a right to defend themselves?  This was a common sense question by Senator Coburn and an issue that was directly addressed by the Maloney and Heller cases.  In Maloney an individual possessed nunchuks for personal protection and in Heller individuals possessed firearms for the purposes of defending themselves.  Sotomayor and numerous Senators had mentioned Maloney and Heller when this question was asked.

I’m trying to think if I remember a case where the Supreme Court has addressed that particular question.  Is there a constitutional right to self-defense?  And I can’t think of one.  I could be wrong, but I can’t think of one….I don’t know….I don’t know if that legal question has ever been presented.

Senator Sessions asked Sotomayor if her opinion, overturned by the Supreme Court in the Ricci Case, the New Haven Firefighter’s case, was not an in-depth opinion evidencing a lack of “courage.”  The opinion in Ricci was short and lacking in legal analysis.  Many have criticized the opinion of Sotomayor, because it lacked an in depth analysis of the core constitutional issues in the case.

Sir, no, I didn’t show a lack of courage. The court’s decision was clear in both instances on the basis for the decision. It was a thorough, complete discussion of the issues as presented to the district court. The circuit court’s ruling was clear in both instances.  No, I did not lack courage.

Senator Grassley asked Sotomayor whether she stands by her prior comment that “our society would be straight-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political changes.”

And I don’t actually remember those particular words. But I do remember the speech. I’m assuming you’re talking about “Returning Majesty to the Law.” And there I was talking about a broader set of questions which was how to bring the public’s respect back to the function of judges. And I was talking about the judges that lawyers have an obligation to explain to the public the reasons why what seems unpredictable in the law has reasons.

Grassley asked if the state taking property and selling it to a private developer is constitutional and asked about Sotomayor’s ruling in the Didden case that allowed a state to “extort” and take private property from him.

The basis of Mr. Didden’s lawsuit was the state can’t take my property and give it to a private developer and because that is not consistent with the takings clause of the Constitution. To the extent he knew the state — and there’s no dispute about this, that the state had found a public use for his property, that it had a public purpose, that it had an agreement with a private developer to let that developer take the property — he knew that he was injured because his basic argument was, “The state can’t do this. It can’t take my property and give it to a private developer.”  The Supreme Court in Kilo addressed that question and said, “Under certain circumstances, the state can do that if it’s for a public use and for a public purpose” And so his lawsuit, essentially addressing that question, came five years after he knew what the state was doing.  The issue of extortion was a question of whether the private developer, in settling a lawsuit with them, was engaging in extortion and extortion is an unlawful asking of money with no basis. But the private developer had a basis. He had an agreement with the state.