Sotomayor Dodged Question on Self-Defense

At Rick Warren's Saddleback forum, Obama was asked which current Supreme Court Justices he would not have nominated. His answer: Justices Thomas and Scalia. [my favorites].

As a lawyer, I thought her answer was pretty fair. Self-defense (vicarious or otherwise) is a privilege in the criminal law, which (taken in totality across the U.S.) is about 90+ percent based in state law. For it to matter as a Federal Constitutional right, it would either have to be framed as such in the the Bill of Rights or the subsequent amendments, which it is not, or be implied in one or more of the explicitly defined Federal Constitutional rights. Perhaps people are misplacing the proper sensitivity about the 2nd Amendment on the issue of self-defense.

No. But they would have the privilege of self-defense as understood in the common law and in the state laws of every state. It's a concept so fundamental as to be unchallenged - and since it is not challenged it does not appear in the Federal Courts of Appeals or the United State Supreme Court. Her remark was that she did not think there was a precedent on the issue of self-defense in Supreme Court decisions, and that is almost certainly true. When someone claims the privilege of self defense, it is in a state criminal action. Just because it hasn't been litigated in some fashion before the Supreme Court, does not mean that the privilege does not exist everywhere in the U.S. It does, and her answer did not imply anything contrary to that.

She has substantial weaknesses and can be attacked on any number of fronts- this just isn't one of them.

Supreme Court affirms Second Amendment as a fundamental civil right (District of Columbia v Heller)

"The Heller case challenged several laws in Washington DC that constituted a complete ban on the Second Amendment rights for D.C. residents with no exception given for self-defense. In the Heller case, the Supreme court ruled that the Second Amendment guarantees a fundamental individual right to have functional firearms in the home that are commonly owned without being connected to any service of the state or military organization. The Supreme Court also ruled that the Second Amendment is a fundamental part of the bill of rights, which guarantees citizen’s individual rights. Lastly, In this 5 to 4 decision with Associate Justice Antonin Gregory Scalia writing for the majority, The Supreme Court affirmed that Washington DC gun laws violated the Second Amendment Civil Rights of DC residents and to positively restore those rights."

Quotes from Scalia’s majority opinion:

"D.C.’s requirement that lawfully owned firearms in the home, such as registered long arms, be “unloaded and disassembled or bound by a trigger lock or device” also violates the Second Amendment as it makes it impossible for citizens to use those firearms for the core lawful purpose of self-defense." (1, 58)

"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

Sotomayor was silent on any comment on the above when questioned about "self defense".

Yes. Heller is precedent on the 2nd Amendment. The 2nd Amendment to the Federal Constitution and the common law or state criminal code privilege of self-defense are different things entirely. The question I heard her answer was specific to precedent as to “self-defense”. Obviously self-defense could include use of guns, knives, hammers and any number of objects or weapons (including your fists). You cite Scalia in Heller - but clearly they are basing the decision on the 2nd Amendment and not some purported Federal Constitutional “right to self defense” because there is no such Federal Constitutional right to self-defense. Self defense is one of many purposes of gun-possession protected by the 2nd amendment (e.g., the second Amendment protects your right to own guns even if you never use them and keep them as, say ornamental objects) but it is not explicitly referenced in the Amendment. The privilege of self defense appears in the criminal laws of the various states. Which is why it (specifically, the privilege of self-defense) is not going be the basis of an action which will reach the Federal Courts of Appeals or the U.S. Supreme Court. Her answer was that she could not recall a precedential ruling of the U.S. Supreme Court on “self-defense”. And Heller is not precedent on self-defense. It is precedent on the 2nd Amendment.

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