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June 25, 2009

Will Judge Sotomayor say anything "activist" about the Second and Eighth Amendments?

These two new articles about Judge Sotomayor this morning highlight that her jurisprudential views on gun rights and capital punishment are sure to be a significant part of her confirmation hearings next month:

The joy of considering these two stories together is that they help highlight how justified and unjustified judicial "activism" is in the (always biased?) eye of the beholder.  In the arena of the Second Amendment, folks on the right are generally excited about judges and justices will strike down government efforts to restrict gun possession.  In the arena of the Eighth Amendment, folks on the left are generally excited about judges and justices will strike down government efforts to expand the death penalty.

Especially if Second Amendment questions come first, Judge Sotomayor may be able to speak broadly about protecting the individual rights of gun owners in a way that will be music to the ears of those in the GOP.  And, if set up effectively, she could there after talk about also protecting the individual rights of criminal defendants in a way that will be music to the ears of those on the other side of the aisle.

June 25, 2009 at 10:35 AM | Permalink

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Comments

How kind of that LAT to bury this at the end

"On June 2, the U.S. 7th Circuit Court of Appeals took the same tack in upholding a ban on handguns in Chicago."

They didn't even mention Posner and Easterbrook were on the panel, the latter being the author

Then when they mention

"In April, however, the U.S. 9th Circuit Court of Appeals in San Francisco said that gun possession is a fundamental right under the Constitution."

They don't include the fact that the 9th is being polled for possible en banc rehearing.

Posted by: . | Jun 25, 2009 10:44:31 AM

This left/right dichotomy no longer holds and many on the left support the death penalty. ("I'm normally against the death penalty, but in this case....") and many of the left are not concerned with due process unless it was a wrongful conviction with the result of the accused being a victim like any other victim. The Right won that battle against "activist judges" and "bleeding hearts" and now "criminals have more rights than victims do" which is another way of saying, "Who cares about due process when the accused is guilty?"

Posted by: George | Jun 25, 2009 11:50:56 AM

I'm still hoping for a Supreme or two, and a plurality of lower-court judges, who go activist on the Fourth, Sixth and Eighth amendments...all of which seem to be slipping away.

By going activist I mean not straining quite so hard to read cases in a light more favorable to the government than to the citizens the forefathers hoped to protect from the government.

Posted by: John K | Jun 27, 2009 1:54:55 PM

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