Senator: Sotomayor Accepts Gun Rights Ruling

[elleng]

Source: nyt/ap

A Democratic senator said Thursday that Supreme Court nominee Sonia Sotomayor sees a 2008 ruling affirming Americans' right to own guns for self-defense as settled law.

Sen. Mark Udall, D-Colo., said Sotomayor told him at a private meeting that she will work from the high court's decision in District of Columbia v. Heller in future cases involving gun rights. The 5-4 ruling struck down the Washington, D.C., handgun ban and imperiled similar prohibitions in other cities.

Gun rights activists have accused Sotomayor of being hostile to gun rights because she was part of a panel that ruled that the Second Amendment protection of the right to bear arms did not apply to state and local governments.



Read more: http://www.nytimes.com/aponline/2009/06/11/us/politics/AP-US-Sotomayor-Gun-Rights.html

[w4rma]

1. Good. I'm interested as to where she stands on corporate law, however. (nt)

[elleng]

4. 'Where she stands?'

In what respect?

[villager]

2. Jesus Christ. Talk about another facet of Stockholm Syndrome.

This country has it with gun lobby tantrums.

[AtheistCrusader]

3. She is going to keep taking heat over this.

The 9th Circuit ruled to incorporate the 2nd via the Heller decision, the 7th and 2nd circuit courts (Sotomayor being on the 2nd) have voted against incorporation. This needs to be settled, soon.

[elleng]

5. It will surely be settled.

Soon, tho?

Bet she won't discuss it, surely not in a way to satisfy ANYones!

[Fire_Medic_Dave]

14. It is settled now. Even if she voted the way Souter did it is still 5-4.

If she is telling the truth then she makes it 6-3, seems pretty settled to me.

David

[Bandit]

19. I am fairly certain she will side with Scalia and bunch on many issues

The court will take a further rightward lurch with her..

[onehandle]

6. Good now give me my nuke. And my toddler wants an Uzi. nt

[X_Digger]

10. I can't give you a nuke, would you settle..

..for a false dichotomy?

[NickB79]

11. Save up $6500 and spend a year working through red tape and paperwork

http://www.gunsamerica.com/921584283/Guns/Rifles/Class-3-Rifles/Class-3-Subguns/IMI_UZI_Reg_Rec_Conversion.htm

[benEzra]

20. Obviously someone hasn't read D.C. v. Heller.

The court said the 2ndA protects the ownership of firearms "in common use for lawful purposes" (e.g., handguns, rifles, shotguns, not machineguns or nukes) by mentally competent adults with clean records. The laws restricting nukes and machineguns still sand, although I know it's more fun to pretend they don't.

[primavera]

22. Calling attention to yet another internal inconsistency in Heller

If the Second Amendment said what Scalia claimed it said, then the right to bear arms would extend to any and all, independent of any qualifying policy goal of maintaining a militia, and could not be infringed upon in any way. If that were in fact so, then any attempt to restrict access to any weapon, including machine guns, nukes, biological warfare agents, stinger missiles, anything, would by definition have to be considered unconstitutional. Yet Scalia does the typical Republican sidestep and claims that it's unconstitutional to restrict access to weapons, except whenever he says it isn't. Oh yeah, that's a clear cut and consistent position. :eyes:

[benEzra]

23. That's not how we interpret the First Amendment, yet we agree it's an individual right.

The fact that the First Amendment is not unlimited (i.e., child porn, libel, slander, and extortion are banned) does not mean the First Amendment is not an individual right. Likewise, it is entirely consistent for the Second Amendment to protect an individual right to own those firearms that have been traditionally common in civilian hands---again, handguns, shotguns, and rifles (including so-called "assault weapons") but not machineguns, explosives, and nukes.

[onehandle]

24. Someone was telling me in the gun forum that all weapons are covered...

...because some private citizens at the the amendment was written had cannons.

Which was the ultimate weapon at that time.

Now it's nukes.

I want my nuke.

[benEzra]

27. I don't know any student of the issue who seriously makes that argument

other than gun control advocates using it as a straw man. Heck, even soldiers and generals can't individually use/access nukes, and not even the President himself.

It is true that some people owned cannons and warships at the time the 2ndA was written, but the 2ndA refers specifically to arms that an individual can "keep and bear," i.e. individually own and carry. That has always been interpreted as small arms and other handheld weapons (blades, etc.), not crew-served weapons, and the Heller decision is consistent with the historical understanding.

[primavera]

31. But there are people who own cannons today

Just ask any civil war re-enactor, and those certainly cannot be individually owned and carried. So there must be some other distinction than the ability to hand carry a weapon that makes a weapon legal to own and operate, right?

[X_Digger]

32. Just because something is not protected by the 2nd..

.. doesn't automatically make it illegal, and vice versa- just because it's legal doesn't make it protected by the 2nd.

[benEzra]

34. Breechloading cannons are as tightly controlled in the USA as bombs and machineguns

Breechloading cannons are as tightly controlled in the USA as bombs and machineguns are (Title 2/Class III provisions of the National Firearms Act) and D.C. v. Heller explicitly upheld those restrictions.

Civil-War-style muzzeloading cannons are legal because there is no movement to ban them (and little rationale for doing so), not because cannons have ever been touched on by Second Amendment jurisprudence; they haven't.

BTW, what has primarily made particular weapons "legal to own and operate" for 220+ years in this country is resistance to bans by the millions of people who own them. The Heller decision gives us some breathing room, but (for example) it wasn't a court decision that struck down the "assault weapon" fraud between 1994 and 2006; it was gun owning voters.

[X_Digger]

29. When the proposition was made that..

.. the second amendment only applied to flintlocks, it was pointed out that at the time, privateers like John Hancock (big signature guy) had trading vessels with cannon on them. So to 'go back to what the original 2nd covered' would include cannon.

[primavera]

25. A good point

I hadn't thought of the comparison to the First Amendment, but you're right, we allow constraints upon freedom of speech without it negating the amendment. Hmmm, that's interesting. It seems like you get into sort of a slippery slope in that, if you're willing to entertain some constraints upon the freedoms granted by an amendment, then who gets to decide which constraints are acceptable, and based upon what reasoning? If the amendment can't be read upon its plain face, it bestows an extraordinary amount of power upon the person(s) interpreting it, which seems almost antithetical to the whole notion of rule of law as opposed to rule of individuals. I know, I know, so what else is news, I just find it interesting. Will have to get back to you about this next year once I've had a chance to take con law. :hi:

A quick p.s. - Nevertheless, Scalia didn't articulate much of a basis for designating certain categories of weapons, access to which is constitutionally protected, while access to other categories isn't, so I still think there's a substantial weakness in Scalia's position, but, of course, that's nothing new - his legal opinions have always been pretty arbitrary, based upon his political leanings, who's back he wants to scratch, and whether he drank his prune juice that morning.

[benEzra]

28. The working principle generally used with the Bill of Rights is "Strict Scrutiny."

http://en.wikipedia.org/wiki/Strict_scrutiny

I think the balance struck by the Heller decision (handguns and non-automatic rifles and shotguns OK, NFA Title 2 machineguns and whatnot stay restricted) is a good one. That pretty much preserves the status quo, with automatic weapons tightly controlled but ordinary civilian firearms (including "assault weapons") protected.

[primavera]

33. How do we define "status quo" here?

The list of readily available weapons today includes weapons the likes of which the framers could not possibly have imagined. So plainly we're extending the second amendment to accommodate advances in modern technology that have rendered weapons like the flintlocks of the founders' day obsolete. So far so good. But how far does that sliding scale go? I mean, say, for instance, that, in the future, someone makes a weapon that can fire exploding nuclear rounds from a 20 round magazine. Well, technology will have developed to create that and other horrors besides, it will be be simple technology according to the standards of the day, yet are we going to argue then that it really was the framers' intention to allow private citizens to keep and bear arms capable of nuking 20 cities at once? That's obviously a ridiculous example I'm offering to make a point, but my question is, if technological advancements allow us to produce ever-increasingly lethal weapons, how do you decide what the "status quo" is that should be preserved? If we were to say that functionality is the key ingredient in defining which weapons are allowable and which ones aren't, then what argument would there be to allow anything beyond a flintlock? After all, people hunted with flintlocks, they defended their property with flintlocks, they even waged wars with flintlocks, so a flintlock satisfies all of the basic needs a shooter might have, right? Yet we don't limit private gun ownership to flintlocks, but rather extend it to include all sorts of stuff that, in the day and age of the founders, would probably have seemed to be weapons of mass destruction on par with today's advanced military weaponry. So as technology advances still further in the future, what will the anchor be for defining tomorrow's status quo? I'm having kind of a hard time articulating my question here, but do you more or less understand what I'm asking?

[benEzra]

35. The status quo is the one that D.C. v. Heller upheld,

namely this: the right of mentally competent adults with clean records to lawfully own and use non-automatic, non-sound-suppressed small arms under .51 caliber, plus some over-.50 shotguns and hunting weapons, that meet the barrel length and overall length requirements of the National Firearms Act. Things beyond that (automatic weapons, over-.50 tactical rifles, explosives, sawed-off shotguns, crew-served weapons) are already restricted by current law.

That not only IS the status quo, it has BEEN the status quo for decades. Much of that has been settled law for 75 years.

The NFA Title 1 guns that are available on the U.S. civilian market today are not that far outside the Founders' direct experience. For example, I own a civilian, non-automatic AK lookalike, the ne plus ultra of scary oooga-booga guns as portrayed by the MSM and the repubs at the Brady Campaign:



If I could take that rifle back in time and show it to Thomas Jefferson or George Washington, they would not only have easily figured out how it functions without even being told, merely by handling it (because it is so close to the technology available in their day), but they would probably have smacked themselves in the head and exclaimed "Why didn't I think of that?" It is mechanically that simple. And given two or three minutes' instruction on the controls and ergonomics, they could have used the rifle with supreme competence for the rest of their life. Try that with a Blackberry.

My AK's range, accuracy, and power are similar to a Kentucky rifle of the Revolutionary War period, and while followup shots are much quicker than a period musket, its overall lethality was far below that of a small 18th-century cannon.

By the 1860's, the rate of aimed fire of civilian rifles had reached that of a modern civilian AK, and available magazine capacities caught up by the early 1870's. Since that time, civilian firearms have mostly improved in reliability, accuracy, durability, ergonomics, and sighting systems, not lethality or rate of fire. The one thing Jefferson or Washington would have had a hard time figuring out is the optic on my rifle. A good 18th-century machinist could have built an AK, but not an LED-based collimator sight.

BTW, the Nuclear Bogeyman Argument is a red herring because the line between small arms and nukes is already drawn at non-automatic small arms under .51 caliber, so bringing in crew-served weapons at all (never mind nukes) is merely a distraction from the real issues.

[primavera]

37. Is that true?

Have firearms really not changed all that much in 200 years? God, that seems so counterintuitive, I mean, everything else in the world has left 200 technology firmly in the dust, how can it be that guns are essentially the same? I dunno, I'm not sure I buy that. I mean, I hear what you're saying, and, sure, at it's most elemental level, a gun of today is no different than a gun of yesterday in that they both fire bullets, but it still seems like the cumulative effect of the changes you mention in accuracy, reliability, ergonomics, and sighting systems still amount to a substantially more lethal weapon today. The ability to accurately and rapidly fire many rounds without jamming or reloading, the ability to reload almost instantly with a fresh magazine, the light weight and maneuverability of modern weapons, all of those things combined seem to make up a substantial difference. And what about ammo "improvements," like hollow-point rounds or armor-piercing rounds? Would you say that those are developments the framers could have envisioned as well? What would the framers think of fingerprint-resistant coatings on handguns? Inexpensive, tiny little guns specifically designed for and marketed to children? Is this really what gun advocates believe the framers had in mind?

[benEzra]

39. In the US, function was frozen legislatively in 1934, retroactive to before machineguns,

which occurred in the late 1800's. So functionally, every firearm operating mode that is civilian-legal (single shot, lever action, pump action, bolt action, semiautomatic) was already available on the civilian market before 1900. The post-1930 developments in automatic weapons, burst mode weapons, sound suppression, etc. are tightly controlled by Federal law, and for practical purposes are restricted to police/military only with rare exceptions.

Like I said, materials have improved greatly (better durability, better corrosion resistance, lighter weight), ergonomics have improved (protruding handgrips), optics have vastly improved (scopes were available in the 1860's, but were crude, and now we have holographic sights), ammunition has improved (more reliable, more consistent, more waterproof), but capabilities haven't changed nearly as much.


You could buy a single-action revolver in 1836:



Double-action Smith & Wessons were available by mid-Victorian times.



You could buy a 15-round lever-action rifle in 1861:




and a 34-round lever-action in 1873:




either one of which would give you roughly the same rate of aimed fire as a civilian non-automatic AK. By the late 1800's, semiautomatics like my AK were available. FWIW, my AK is functionally identical to a 1906 Remington Model 8 semiauto:







(Yes, Annie Oakley owned one.) And look closely at the safety lever, which keeps dirt out of the ejection port when engaged; the AK copied it.


Semiautomatic pistols haven't changed functionally a whole lot since the Colt Model of 1911:

[primavera]

41. I'll be damned

That's interesting, thanks for the info!

Btw, you didn't answer my question about more lethal types of ammo, fingerprint resistant coatings, and guns for tots. You're obviously very well informed, I'd value your thoughts on those matters if you're willing to share them.

[benEzra]

42. Whoops, missed those. Here are some thoughts:

Btw, you didn't answer my question about more lethal types of ammo, fingerprint resistant coatings, and guns for tots. You're obviously very well informed, I'd value your thoughts on those matters if you're willing to share them.

Whoops, missed those. Here are some thoughts (with your prior questions quoted):

And what about ammo "improvements," like hollow-point rounds or armor-piercing rounds? Would you say that those are developments the framers could have envisioned as well?

In 1791, practically the only bullets available were expanding bullets, because the bullet material of choice was soft lead. A bullet only needs a hollow nose to help it expand if it's made of something harder than pure lead, so hollowpoints weren't necessary until bullets started being made out of harder alloys or with copper jackets.

Expanded .69 caliber musket ball dug up from a Civil War battlefield:


Hard alloys and jackets became common after the invention of smokeless powder in the mid to late 1800's, which allowed higher safe working pressures than black powder (because smokeless powder burns cleaner and with a more predictable pressure curve), which in turn allowed higher velocities. Problem was, pure lead bullets coat the bore very badly when driven at high velocities, and the preferred solution (eventually) was to encapsulate the lead in a copper jacket, which fouls much less. That led to another problem, the fact that totally copper bullets don't expand like the older lead bullets did. Hence, softpoints and hollowpoints. Now, it is indisputable that hollowpoints have gotten more reliable at expanding than they used to be, but IMO no more so than the old soft lead bullets were.

In terms of per-bullet lethality, do consider that in the Founders' day, a Brown Bess musket fired a .75 caliber soft lead ball (bigger than a modern 12-gauge shotgun slug) and they lived in a world without body armor, antibiotics, surgical anesthetics, and blood transfusions. I dare say per-shot lethality was far higher in their world than it is in ours.

Regarding armor piercing, they had no body armor, so to them, any bullet could penetrate a peace officer's clothing. Practical body armor capable of stopping bullets wasn't invented until the mid-20th century, AFAIK; it was possible to make sooner (out of steel or silk), but was too heavy/bulky to be practical before the invention of high-strength aramid polymers.

FWIW, I'm not sure if you're aware of this, but armor-piercing bullets in handgun calibers were banned in 1986 by Federal law (H.R.3132, introduced 1985, became Public Law 99-408) and the law was extended to cover all rifle calibers that matter in 1994, a law that still stands.

What would the framers think of fingerprint-resistant coatings on handguns?

Fingerprint-resistant coatings protect against corrosion, not identification. The fingerprints on a phosphate coated (parkerized) or nitrided steel surface are just as readable to modern forensics as fingerprints on any other matte surface are.

Also, remember that the Founders lived in a world in which fingerprints were anonymous. Fingerprint classification and identification wasn't invented until the 1880's.

Inexpensive, tiny little guns specifically designed for and marketed to children? Is this really what gun advocates believe the framers had in mind?

Parents teaching their kids to be safe, responsible, and competent with guns is a tradition that does indeed go back to the Founders' era and before, and it is something that more than one of the Founders wrote about (I believe Jefferson touched on the topic in at least one of his letters). But this always presents a problem, in that adult sized rifles are way too heavy and long in the stock for children to handle safely. In the past, you could simply use an old rifle and cut down the barrel and stock, but beginning in the mid to late 1800's, small-caliber, usually single-shot guns downsized to fit children and adolescents began to be marketed.

Here's a Remington Boy's Rifle from around 1900:



Sorry I couldn't find a photo of the whole rifle. I have seen period ads around the 'net, but can't find any at the moment.

I do have a little treasure of a book that my mom and dad gave me as a child to help teach me to be responsible with firearms (they started me on a BB gun and moved me on to a .22 when I was ready, under supervision of course). It was "First Rifle : How to Shoot it Straight and Use it Safely" by C. B. Colby (New York : Coward-McCann, c1954). I still have it. This is not a new trend by any means.

When I can afford one, I want to pick up one of these for my 8 y.o. daughter:


http://www.crickett.com/CrickettRifle/m221/m221.html

Not for her to use on her own, but for me to teach her to shoot properly at the range. It is a single-shot (no magazine) .22LR that you load with a single round, that then has to be manually cocked before firing, and sized to fit a child my daughter's size, making it about the safest way to teach a child marksmanship. She is already quite competent with a Daisy Red Ryder BB gun, and I think she is more than ready to move up to a .22.

(And before I get any grief from others about sexist color choices, let me point out that this would not be my first choice, but my daughter is nuts about Pepto Bismol Pink, and my son will learn to shoot on the same rifle.)

Personally, I think the Founders would have approved, though I'm not sure if they'd have been thrilled with the color.


Anyway, I don't expect you to agree with all the above sentiments, but those are my feelings on the topics, anyway. Hope this is at least food for thought.

[primavera]

43. Good information, thanks!

I hadn't appreciated the size that those old soft lead musket balls could expand out to, jeez, they must have made a hell of mess. And, of course, you're right that survivability in bygone days was much poorer owing to less developed medical science, although that's an issue separate from the inherent lethality of the weapon. Hmmm, definitely some interesting information there, thank you for taking the time to share it.

[X_Digger]

46. Single shot amputations were common

Now _that_ is a scary thought.

[primavera]

38. So would you say then that...

... the current status quo is unlikely to change in the future?

[benEzra]

40. I would suggest that it is indeed unlikely to change much.

You might possibly see some homogenization, as extremely anti-gun jurisdictions with outright bans (e.g., Chicago) are required to allow lawful ownership by adults with clean records, but such jurisdictions are exceedingly rare to start with, and that would just bring them more into line with the national status quo. I certainly don't foresee the National Firearms Act ever being repealed or anything like that.

Now, styles will inevitably change (such as is happening now, as straight wooden stocks are being displaced with ergonomic polymer stocks, etc.), but that is not reflect a shift in capabilities, but rather aesthetics.

[X_Digger]

30. Even the first has some 'arbitrariness'- see 'I know it when I see it'. n/t

[Fire_Medic_Dave]

44. Cheers to you.

I applaud your ability to be challenged on your ideas and actually consider the opposite point of view. Very rare now days. Good luck with school.

David

[primavera]

48. Thanks!

Hope your weekend is going well! :hi:

[jody]

7. Sotomayor voted against incorporation of the 2nd in the 14th in Maloney v. Cuomo. She should recuse

herself from any case that comes to SCOTUS dealing with that question.

[Indydem]

8. Well then it'll be a 4-4 tie with Souder gone. n/t

[jody]

9. IMO it would then be 5-3 for incorporation of the 2nd in the 14th. Souter is anti-gun. n/t

[Statistical]

12. Other way round Souter voted against it.

So with Souter likely an incorporation vote would come down to 5-4.

With Sotomayor following Souter it is 5-4.
If she reverses herself it is 6-3.
If she recuses herself it is 5-4.

I don't see anyone changing sides.
Nobody who voted for individual right is going to let states trample that.
Nobody who said a DC gun ban somehow doesn't infringe on the individual right is going to believe it needs to be incorporated against the states.

I am calling 5-4 with or without Sotomayor.

[-..__...]

13. That popping sound that you hear...

is the collective sound of a million capillaries rupturing in heads of the Brady campaign staff, offices of Dianne Feinstein, Carolyn McCarthy and other anti-gun zealots that were looking forward to Sotmayors nomination.

B-)

[Name removed]

15. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Wizard777]

16. Canon 5 of the Judicial Code of Conduct.

Under this canon, a judicial candidate may not promise any judicial conduct except the faithful and impartial performance of official duties.

[michreject]

17. I wish she was seated all ready

get the BS over with.

[camera obscura]

18. Good. There are many issues we need to be more concerned about.

[Xenotime]

36. You say that and Stephen Tyrone Johns hasn't even be layed to rest yet.

Interesting "progressive" stance you have there.

[benEzra]

47. Huh? Mr. John's death and Ms. Sotomayor's position on D.C. v. Heller

You say that and Stephen Tyrone Johns hasn't even be layed to rest yet.

Interesting "progressive" stance you have there.

Huh? Mr. John's death and Ms. Sotomayor's position on D.C. v. Heller are connected, how? Is trying to exploit every tragic death for DU debate points really a "progressive" stance, if you want to play the "who's more progressive" card?

And FWIW, Mr. Johns was murdered using an 80 to 100 year old squirrel gun (Winchester Model 1906) that AFAIK is 100% legal in the United Kingdom and the District of Columbia.



Tell me again how this relates to Ms. Sotomayor's stance on Heller?

[slackmaster]

21. That's great news!

She won't have any real trouble getting confirmed.

[Blasphemer]

26. Meaningless really...

It is currently settled law but should another case be brought before the court, it will have to be judged on it's own merits.

[proteus_lives]

45. Good!

I hope she'll never give into those gun-control nuts.