Sotomayor and the Second Amendment

Conservative pundit Brian Darling is not happy with Sonia Sotomayor's record on Second Amendment issues:

Most nominees come before the Senate Judiciary Committee and refuse to answer questions about hot-button issues such as abortion, gay marriage, gun rights and the death penalty. The nominee usually says something about not wanting to prejudge future decisions that may come before the High Court.

But Sotomayor shouldn’t be allowed to skirt the Second Amendment issue, because she cosigned a decision in a case earlier this year that exhibited a dismissive and hostile view of the right to bear arms. If Sotomayor’s view becomes the view of the Supreme Court, your right to own the weapon of your choice in your home may be taken away.

Let's put aside the fact that it is already illegal for you to "own the weapon of your choice in your home" if said weapon happens to be a grenade launcher, a biological agent, et. al. and focus on what conservative pundits obviously concerned about: guns.

Last year, the Supreme Court handed down a 5-4 ruling in District of Columbia v. Heller that established the first coherent pro-Second Amendment judicial criteria in U.S. history, striking down a DC ban on handguns. The five justices making up the majority were the conservative bloc (Alito, Roberts, Scalia, Thomas) and the center-right swing justice (Kennedy); all four liberal justices (Breyer, Ginsburg, Souter, Stevens) dissented.

Finding a potential justice who shares the views of the conservative majority but does not adopt a pervasively authoritarian view of the role of government on due process, equal protection, and privacy issues would be a challenge. But even if Obama were especially concerned about preserving Heller--and he isn't; he disagrees with it--the ruling neither gains nor loses a vote by replacing Souter with Sotomayor, since (assuming conservative assessment of her views on the issue are correct) we would simply be replacing one anti-Heller justice with another. The majority would still stand at 5-4, just like it did before. No gain, no loss. Even replacing Souter with a conservative justice would only expand the majority to 6-3.

The effect on other civil liberties, on the other hand, could be much more significant. With an additional socially conservative justice on the bench, Alito, Roberts, Scalia, and Thomas would have no reason to rely on Kennedy's center-right swing vote and could overturn any number of civil rights precedents at will.

A better traditional conservative issue about which to quiz Sotomayor would be eminent domain, since replacing David Souter with someone who holds a broader interpretation of the Fifth Amendment's takings clause could bring us a step closer to overturning the execrable 5-4 majority ruling in Kelo v. New London (2005). Over the past few years, it has become unfashionable for conservatives to support property rights--so the odds of flipping the 5-4 majority might be stronger with a liberal appointee than with a conservative.

But don't expect to hear much about eminent domain during the confirmation hearings, because eminent domain isn't an issue that rallies the Republican base. Expect the confirmation hearings to focus on abortion, gay rights, the Second Amendment, and immigration as Republican senators attempt to rally religious extremists, weapon aficionados, and nativists--but don't expect a serious or broad-based approach to civil liberties concerns.

Related: Bio of Sonia Sotomayor