Sotomayor to make her first bad decision
Soon after Sonia Sotomayor was nominated for a seat on the Supreme Court of the United States, I discovered her position of gun ownership. During her confirmation hearing she was asked about her position on Second Amendment rights. In both cases, in my eyes, she plainly said she opposes private ownership of guns and to hell with the Second Amendment. It is also interesting to note that in her first case she will be deciding McDonald v. Chicago, a gun ownership rights case. One wonders if her gun position influenced the decision to nominate her. Now she sits on the highest court in our nation and she it about to essentially pluck the Second Amendment from the Bill of Rights. That is, if enough of the other eight justices can be persuaded by the upside down logic she uses.
Let me repeat my stand. I hate guns, I hate violence, but I respect the U.S. Constitution. I don’t own a gun, although I have been to the shooting range and fired a few hundred rounds in my life. I can hit a target consistently and understand that the experiences is entertaining. I get the same satisfaction from a video game. That said, I have also read the Constitution, as well as the Federalist Papers, the founding fathers argued about this issue – no not the video games, gun ownership.
A Short History of Rights
Those of you who have been educated in public schools might not understand the significance of the Bill of Rights. Madison initially strongly opposed adding a Bill of Rights, arguing that basic human rights were unnecessary to guarantee. He felt that if rights were guaranteed in writing then any rights not included could be construed as not granted. He held onto this argument for quite a long time.
However, the people and specifically their elected representatives, felt very strongly that rights needed to be protected in the Constitution. They felt so strongly that many states refused to ratify the Constitution without a Bill of Rights. Richard Labunski’s, James Madison and the Struggle for the Bill of Rights, states that some states suggested long lists of guaranteed rights as a condition to their signage. Only a guarantee that a Bill of Rights would be included later, convinced some states to sign.
Virginia’s Patrick Henry felt Madison’s position extremely dangerous to our long-term liberty and vehemently opposed both Madison and the Constitution. The issue of guaranteed rights was so important to people of Virginia that Madison lost his bid to become one of the state’s first Senators. In a revelation that has been often repeated since, Madison was convinced to change his mind. He became a champion for amending the Constitution to include a Bill of Rights. During the amendment process hundreds of amendments were proposed by the various states. Labunski writes that when all the duplicates were removed there were about 120 suggested rights to be guaranteed.
This brings me to my point. Madison argued that it would be difficult to protect all the rights that might be subject to legislative abuse, rather he suggested, only those rights deemed most highly valued and in need of protection should be codified into the Bill of Rights. It is this argument that resulted in only TEN federally guaranteed rights forming the Bill of Rights. These ten rights were deemed to be the most important rights for people living in this representative democracy.
If these rights among the original 120 were all that were chosen they should be venerated and immutable. There should be no question of their application or coverage. The original states all demanded these guarantees, that some state constitutions do not guarantee one right or another is a moot point. We could argue those states felt such a guarantee unnecessary due to the existence of the Bill of Rights. But here is where James Madison is simultaneously correct and wrong when he originally argued against the Bill of Rights. Madison thought if some rights were codified then those rights not codified would be assumed to be not granted.
We see this point of view being argued today. CNN displayed a map on their so-called magic wall on Friday, displaying six states that do not contain gun ownership rights in their state constitutions. The anchor suggested that the lack of guarantee meant no such right existed within those states. Madison was just shot with his own gun – so to speak. He was right that codifying rights meant non-codified rights would be denied. But where he was wrong, was assuming the government would recognize inherent rights in the first place.
Federally guaranteed rights
Since the Bill of Rights was added to the U.S. Constitution courts have repeatedly agreed that these rights are granted to the American people. Free speech, religion, press, assemblage, search and seizure, jury trial, cruel and unusual punishment, ect. all accepted as universal in application. Your state government cannot torture you to death no matter how heinous your crime because of the bill of rights. Your state cannot shut down the local newspaper for criticizing the governor because of the Bill of Rights. Virginia had an official state religion prior to the Bill of Rights but no longer does. Why? The Bill of Rights.
But now when it comes to the subject of gun ownership, suddenly we have a Supreme Court Justice arguing that this particular right does not apply to the states. The source of the argument is that the Bill of Rights limits the federal government only, but it essentially does not restrict state law. If the state of Illinois decided to shut down or arrest the ownership of The Chicago Tribune for calling out Blagojevich surely the U.S. Supreme Court would rule the state’s action unconstitutional. No one would question it or argue that the First Amendment does not apply to state law.
Yet that is precisely what Sotomayor has argued. This is an issue that should concern both conservatives and liberals alike. If the Supreme Court sets a precedence that any right codified in the Constitution can be usurped and otherwise disregarded by any level of government a dangerous assault upon liberty has occurred. One can call my argument slippery-slope, but it is a very real situation. Courts are slaves to precedence and judicial slippery-slopes are not coincidental but dictated largely by precedence. While Sotomayor may have little regard for individual rights or the absolute power of the Constitution, we can hope and pray that the court’s other members seriously think through the ramifications of their decisions before ruling on McDonald v. Chicago. Fortunately, the balance of the court seems unlikely to follow the junior justice’s misguided opinions.