Jacobs appears on CNN's Lou Dobbs Tonight to discuss Judge Sotomayor's Second Amendment record

Jacobs appears on CNN's Lou Dobbs Tonight to discuss Judge Sotomayor's Second Amendment record

On June 5, James Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, appeared on CNN’s Lou Dobbs Tonight in a “Face Off” debate with Ian Millhiser of the Center for American Progress about Judge Sonia Sotomayor’s record on the Second Amendment and whether states and municipalities can restrict gun rights.

Sotomayor was part of a panel of the U.S. Court of Appeals for the Second Circuit that ruled in January in a case involving numchuks, or martial-arts sticks. In a brief, unsigned opinion, the panel dismissed an appeal arguing that a New York law banning numchuks violated the Second Amendment’s guarantee of the right to bear arms. The panel deemed irrelevant the Supreme Court’s landmark 5-4 decision last year in District of Columbia v. Heller invalidating the District’s handgun ban and finding that the Second Amendment protects an individual’s right to possess a firearm for private use.

Instead, the judges referenced an 1886 Supreme Court decision that held that the Second Amendment does not apply to the states. Notably, the Heller opinion contains a footnote stating that the Court did not decide whether the Second Amendment binds the states as well as the federal government and the District of Columbia.

“The right to bear arms -- in the Heller decision -- it’s a fundamental right,” Jacobs said. “The Court made that clear and I think American history makes it clear.”

“The only thing we really know about Judge Sotomayor’s decision is that her Second Amendment decision shows that she knows how to follow the law,” Millhiser said. “There are two very old Supreme Court decisions dealing with the Second Amendment. The first said there’s no individual right to own guns and the second one said that the Second Amendment doesn't apply to the states. The Supreme Court last year overruled the first one. They haven’t said anything about the second. [Until they do], Judge Sotomayor did the right thing, which is to say ‘I am a lower court judge; I do not have the power to overturn a Supreme Court decision.’”

“I think that might be a little bit too strong, that it doesn't have the power,” Jacobs responded. “It was within her discretion and it would have been a reasonable decision to have taken the next step and to have applied the Heller decision to the states and localities as the Ninth Circuit did and did very persuasively.” The U.S. Court of Appeals for the Ninth Circuit ruled this year that states are bound by the Second Amendment's protection for an individual's right to bear arms.

Jacobs and Millhiser also discussed a 2004 decision in which Judge Sotomayor joined a Second Circuit panel finding that the right to possess a gun is not a fundamental right, but the two agreed that the Heller decision has permanently altered the landscape.

“Before Heller, that was the mainstream position, but after Heller, everything has changed,” Jacobs said. “We’re really now just at the very beginning of jurisprudence, constitutional law on the Second Amendment. There will be a lot of decisions facing the court in the next 10 years and we’ll see what Heller has brought.”

Posted on June 9, 2009

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