Perhaps the most startling aspect of the Supreme Court opinions in McDonald v. Chicago was the dissenters’ assault on District of Columbia v. Heller. Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. 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.”
Yet her McDonald opinion shows her “understanding” that those many, many Americans are completely wrong to think they have a meaningful individual right.
To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall, Colorado Democrat, “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”
So by “settled,” she apparently meant “not settled; should be overturned immediately.”
In the McDonald case, the Breyer-Sotomayor-Ginsburg dissent recapitulated various arguments that had been made in Heller by the dissenting justices. The dissenters also said Heller should be overturned because some law-review articles had criticized Heller. If criticism by a handful of law-review articles were the criterion for overturning a precedent, almost every major Supreme Court precedent would be overruled.
Besides, there also are plenty of law-journal articles that praise Heller and point out serious logical and historical errors that the anti-Second Amendment dissenters made in Heller.
Another argument that Breyer-Sotomayor-Ginsburg made for getting rid of Heller pointed to a McDonald amicus brief by some legal historians. That brief discussed the 1689 English Declaration of Rights, which was enacted by Parliament after the despotic Stuart monarchs were ousted in the Glorious Revolution. The Declaration guaranteed “[t]hat the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” This guarantee was an ancestor of the Second Amendment.
According to the historians, the declaration didn’t actually mean that Protestants (98 percent of the population) could have arms for their defense. It meant that Parliament could arm the militia.
Those English parliamentarians apparently had great difficulty in straightforwardly expressing what they meant, as they forgot to say “Parliament” and “militia” in their new law about Parliament arming the militia.
It’s a creative argument, but it’s not new. The same theory had been presented to the court in the Heller case.
Justices Breyer and Ginsburg should be free to rail against Heller all they want. They never promised anyone that they considered Heller to be “settled law.” To get confirmed to the court, they never touted their understanding of “how important the right to bear arms is to many, many Americans.” Sonia Sotomayor, however, promised to do one thing and then did the opposite.
The Sotomayor switcheroo highlights the necessity for the Senate to conduct a serious inquiry into Solicitor General Elena Kagan’s views on the Second Amendment. Later this week, I will testify to the Judiciary Committee about Ms. Kagan’s record on guns during her service in the Clinton administration. That record hardly inspires confidence that she has any respect for the rights of gun owners, but perhaps she has changed.
The Senate should not let itself by pacified with non-answers, platitudes and evasions.
Heller is one vote away from being overruled. Many senators from both parties strongly support the Heller decision and the right to bear arms. That’s why 58 of them joined an amicus brief in McDonald urging that the Chicago handgun ban be declared unconstitutional.
With four justices over the age of 70, President Obama may have several more Supreme Court appointments in the next two to six years. The Sotomayor experience shows why it’s crucial for senators to demand serious answers about where a nominee stands on the Second Amendment.
David Kopel is research director at the Independence Institute and an adjunct law professor at Denver University.