Justice Sonia Sotomayor’s decision last month to oppose broader individual gun rights under the 2nd Amendment is being cited by the National Rifle Assn. as reason for senators to oppose Elena Kagan, President Obama’s second nominee to the Supreme Court.
The NRA released an anti-Kagan ad this week that shows Sotomayor seemingly assuring senators during her confirmation hearing last year that she supports individual gun rights. Citing her vote in June to uphold a handgun ban in Chicago, the ad urges members to call their senators and “tell them not to fall for the same trick twice.”
The Senate Judiciary Committee met Tuesday to consider Kagan’s nomination but, at the request of its Republicans, put off a vote for one week. She is expected to win support from the panel’s 12 Democrats; the committee’s seven Republicans, except possibly Lindsey Graham of South Carolina, are expected to oppose her.
Last year, the NRA opposed Sotomayor’s confirmation, and White House aides say the gun lobby’s intervention cost her up to 10 votes. Nonetheless, Sotomayor was approved by a 68 to 31 vote in the Senate. Kagan, the solicitor general, is expected to win confirmation next month, but on a closer vote.
Kagan, like Sotomayor, told senators that she viewed the court’s recent rulings on gun rights as “settled law.” This suggested -- but did not promise -- she would support the legal principle in future cases.
Conservative critics and at least a few liberals questioned Sotomayor’s decision to sign with liberal justices to a dissenting opinion that mostly rejected the notion of individual gun rights protected by the Constitution.
“The Framers did not write the 2nd Amendment in order to protect a private right of armed self-defense,” wrote Justice Stephen G. Breyer in the opinion, which Sotomayor joined. “There has been, and is, no consensus that the right is, or was, ‘fundamental.’ ”
However, the 5-4 majority ruled that the 2nd Amendment protects the “fundamental” right of an individual to have a handgun at home, and it said this right applies “equally” to cities and states, as well as the federal government.
The NRA ad features Sotomayor telling senators, “Like you, I understand how important the right to bear arms is to many, many Americans....I understand the individual right fully that the Supreme Court recognized in Heller,” referring to a ruling striking down a handgun ban in the District of Columbia vs. Heller.
The Heller ruling in 2008 technically only applied to the federal government, since the District of Columbia is a federal city. Last month’s McDonald vs. Chicago ruling said the individual right to a handgun applied to cites and states as well.
Curt Levey, a lawyer for the conservative Committee for Justice, said Sotomayor’s “vote in McDonald was a wake-up call” for 2nd Amendment activists. “She basically left the impression she supported it, and then did something different.” He said the NRA’s opposition to Kagan would “keep the Republicans on board [in opposition] and it may peel away a few Democrats.”
In recent years, many liberal activists voiced a similar criticism of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The two told senators they supported the court’s precedents, but in several instances since, they have voted to curtail or overrule past decisions.
During Tuesday’s session, Sen. Jeff Sessions of Alabama, the committee’s top Republican, said Sotomayor’s vote in the gun case continued to rankle GOP members. “I think [she] was less than candid with us, frankly,” he said.
Republicans also renewed calls for Kagan, if confirmed, to step aside from hearing any lawsuit challenging the constitutionality of the massive healthcare overhaul enacted this year because she was a top Justice Department official when the challenges were filed.