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July 14, 2009

Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?

The question in title of this post is drawn from a line from this commentary at FOXNews authored by Ken Blackwell and Ken Klukowski, which carries the headline "Sotomayor, Civil Rights and Guns."  The piece is focused principally on whether the Second Amendment should apply to the states, but it leaves me wondering whether and how the authors and others urging Second Amendment incorporation justify excluding former felons and misdemeanants from the Second Amendment:

Over the next two weeks, one of the critical issues will be your civil rights on guns.  Senators could benefit from context to understand the importance of this civil right to protect families, especially racial minorities....

When slavery ended in America after the Civil War, no civil right was more important for black Americans than the right to keep and bear arms.  We passed an amendment to the Constitution to make that possible....  History makes clear that our post-Civil War leaders considered no civil right more important in 1868, when they ratified the Fourteenth Amendment, than the Second Amendment right to keep and bear arms....

But shortly after the Fourteenth Amendment was passed, the Supreme Court held that the Second Amendment did not apply to the states, and did so twice again just a few years later.  Judge Sotomayor relied on one of these cases when she said that people have no gun rights when it comes to state or city laws.  Her supporters laud this opinion, saying that it proves she upholds precedent.

But not all precedents should be upheld.  The cases that Judge Sotomayor relied on also state that our revered First Amendment doesn't apply to the states, either.  Thankfully, the Supreme Court has long since rejected that idea.  None of Judge Sotomayor's boosters seem willing to discuss the fact that these precedents she relied on denied free speech and religious liberty against cities and states....

Clearly, sometimes precedent must be overruled.  Specifically, precedent should be overruled when doing so fulfills the original intentions of the Founding Fathers to make people free, as those intentions are found in the Constitution's text.   The Second Amendment deserves to be on equal footing with the First Amendment.

As regular readers may know, I have often embraced viewing the Second Amendment as a civil right that should "on equal footing with the First Amendment." It is this perspective that makes me so troubled by certain federal prosecutionsand severe sentences imposed on felons and some misdemeanants merely for seeking to exercise their "civil rights on guns." 

To my knowledge, it would be unconstitutional for Congress to criminalize the exercise of any First Amendment rights by all felons and some misdemeanants.  And yet, despite all the concerns expressed about Judge Sotomayor's regard for the Second Amendment, few have had the courage to even acknowledge how existing federal felon-in-possession laws undermine this "civil right" for tens of millions of Americans.  Though the Second Amendment is starting to get some play in Day 2 of the Sotomayor hearing, it seems that the truly challenging questions raised by a serious committment to Second Amendment rights are still being avoided by everyone.

Some related Second Amendment posts:

July 14, 2009 at 05:08 PM | Permalink


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Doug, I got another client today who was convicted of being a felon in possession. Def calls the police to come to his house and investigate a possible break-in. While there, they see a locked gun safe. Police go back to the office and look up guy's record and finds he was convicted of growing marijuana in 1985. He is then charged with felon in possession, convicted and sentenced to 16 months in prison.


bruce cunningham

Posted by: bruce cunningham | Jul 14, 2009 6:02:07 PM

Doug I agree that non violent felons should be able to excercise 2A rights. I am very glad you keep pushing this issue. I enjoy reading your blog about this particular subject.

Posted by: Anon | Jul 14, 2009 9:03:44 PM

Her answer about nunchakus (and the related court decision) make me think she believes the opposite - that it's NOT a fundamental right and the state can ban weapons merely if they're dangerous. IMO that doesn't bode well for the line of argument you're promoting on the 2nd Amdt (with which I agree).

Posted by: Gritsforbreakfast | Jul 15, 2009 8:31:52 AM

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