What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?
Explanation: The significance and scope of the Second Amendment will be important issues raised at the hearings for Judge Sotomayor's nomination to the Supreme Court. Judge Sotomayor has decided two cases involving the Second Amendment in which she has discussed whether the Second Amendment confers a fundamental right. In United States v. Sanchez-Villar, 99 Fed. Appx. 256 (2d Cir. 2004), an opinion she joined stated in a brief footnote that the Second Amendment did not confer a fundamental right. And the decision she joined in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), indicated the same point.
The hearings for Judge Sotomayor will provide an opportunity for Judge Sotomayor to explain the significance of the statements in Sanchez-Villar and Maloney that the right to keep and bear arms is not a fundamental right. The precise legal significance of whether a legal right is "fundamental" can vary depending on the context. For example, the Supreme Court has used the term "fundamental rights" in the context of the Due Process clause to refer to those fundamental rights and liberties that trigger strict scrutiny. See Washington v. Glucksberg, 521 U.S. 702 (1997). On the other hand, the Supreme Court has used the term "fundamental rights" to refer to parts of the Bill of Rights that are so essential that they are incorporated by the Fourteenth Amendment and therefore apply to the states. See, e.g., Pointer v. Texas, 380 U.S. 400, 403 (1965).
In some cases the Supreme Court has referred to a right as fundamental without making the precise meaning clear. The Second Amendment is a good example. In District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (2008), the Supreme Court referred to the historical understanding of the right to keep and bear arms as a fundamental right:
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," Alden v. Maine, 527 U.S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765).
During the hearings in July, I hope Judge Sotomayor can explain how she reconciles the statements she has joined about the Second Amendment with the Supreme Court's statements about the Second Amendment in Heller. Further, I hope she can explain what she thinks it means to say that the Second Amendment is or is not a "fundamental right."
Sen. Cornyn serves on the Finance, Judiciary and Budget Committees. He serves as the top Republican on the Judiciary Committee's Immigration, Refugees and Border Security subcommittee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.
