By Zak Johnson of Portland, Oregon. Zak is the vice chair of the Multnomah Education Service District Board and the chair of the DPO's Gun Owners Caucus. Previously, he contributed "Replacing Souter: What's your advice to Senator Wyden?"
In the event you live in a cave in the Wallowas, you might have missed last fall's fear-mongering against candidate Barack Obama led by right-wing gun rights groups. The smears have continued with intensity and have created an ongoing panic that Obama is a secret gun prohibitionist. One demonstrable result of this panic is that since November, fearful gun owners have pushed gun and ammunition sales up approximately 30 percent above the previous year. This panic continues in spite of President Obama's emerging--and moderate--record on gun rights: since January the president has signed important gun rights legislation easing restrictions on interstate transport on Amtrak and giving state law precedence in determining when and how guns are restricted on National Parks administered lands. The watchword of the new administration appears to be consensus, and this extends to gun policy.
The ill-founded attacks also target the President's allies and appointees, who are accused, without evidence, of favoring broad restrictions on gun rights (the president's emerging record notwithstanding.) These attacks have extended to Sonia Sotomayor, currently undergoing the third degree from Foghorn Leghorn, Yosemite Sam and other members of the Senate Judiciary Committee.
The primary gun rights issue in examining Sotomayor's record is whether she agrees with last year's landmark decision in DC v. Heller, which for the first time cemented interpretation of the Second Amendment as applying to individuals. That is, SCOTUS said you have a civil right to own a gun and do not have to belong to a militia in order to do so. Attacks against Sotomayor have been based largely on a single case involving nunchucks (really!). In that case, Maloney v Rice, Sotomayor ruled that New York state had the right to outlaw nunchucks because in the Heller ruling, the Supreme Court had specifically noted that the Second Amendment applies only to federal law, not to state law. This is completely accurate. But what the Supreme Court actually said (Scalia wrote the opinion) has been conveniently ignored by Sotomayor’s attackers, as has the fact that conservative judges on other courts, such as the Seventh Circuit, have agreed with her. At the time of the Maloney ruling, Sotomayor noted, as she often does, that she was not able to apply the Heller ruling to force New York to allow nunchucks because the Supreme Court itself is the only court that can decide to overturn its own judgments. Sotomayor's ruling is the very model of judicial restraint; not "judicial activism" as those on the right like to pretend.
In this week's hearings, Sotomayor and Sen. Leahy (D-VT) had an exchange that should have put to rest any doubts about where Sotomayor stands on the question of individual rights and the Second Amendment:
LEAHY: I've owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting.
Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you.
And in the Second Circuit decision, Maloney v. Cuomo [Maloney v. Rice], you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?
SOTOMAYOR: It is.
LEAHY: And you accept and applied the Heller decision when you decided Maloney?
SOTOMAYOR: Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged, answered the -- a different question.
LEAHY: Well, that -- let me -- let me refer to that, because Justice Scalia's opinion in the Heller case expressly left unresolved and explicitly reserved as a separate question whether the Second Amendment guarantee applies to the states and laws adopted by the -- by the states . . . And I understand that petitions asking -- seeking to have the Supreme Court revisit the question applied to the Second Amendment to the states are pending (inaudible) that case appears before the Supreme Court and you're there how you're going to rule, but would you have an open mind, as -- on the Supreme Court, in evaluating that, the legal proposition of whether the Second Amendment right should be considered fundamental rights and thus applicable to the states?
SOTOMAYOR: Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.
This is as much as or even more than Sotomayor has been willing to say about backing Roe v. Wade! Of course, the right-wing sound machine is not celebrating Sotomayor as an Anti-Choice justice because they don't believe she is one; but their attack on her as a threat to gun rights is based on her similar judicial history with respect to both gun rights and privacy rights, and in light of almost identical statements made to the judiciary committee on both issues.
You would think the exchange in plain English above would make the issue go away. But no; yesterday afternoon the following form letter was sent out to members of a prominent right-wing gun rights group urging them to send the following to their US senators:
Even though President Obama is extremely anti-gun, I still started with an open mind regarding his nomination of Judge Sonia Sotomayor. But after her testimony these past two days, there is no way that she should be confirmed to the U.S. Supreme Court . . .
Let's just stop right there. "Open mind?" You've got to be kidding. The right-wing's anti-Obama agenda is firmly in place, and by all appearances it will be pursued regardless of the actions of either the president or his proxies. The 37 million gun owners who voted for Obama notwithstanding, many of these attacks will continue to come from right-leaning gun rights groups as long as Democrats who are members of these groups allow the leadership of those groups to hide their broader right-wing agenda behind the pretense of non-partisan gun rights advocacy. The reason for the continuing attacks is simple: frightened supporters don't just buy up guns, they send donations.
As Democrats it's time we stopped joining these organizations and stopped funding their attacks on our leadership. If you feel you must belong to one of these groups, insist that they act in a genuinely non-partisan manner, or take your membership dues with you when you walk out the door. I’m a Democratic gun owner who avidly works to see our Second Amendment rights protected and significantly expanded. But I'm not going fund the opposition in order to see it done.