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Key Excerpt: Coburn and Sotomayor on Right to Bear Arms

Courtesy of CQ Transcriptions

JUDGE COBURN: Let me move on.

In the Constitution, we have the right to bear arms. Whether it's incorporated or not, it's stated there. I'm having trouble understanding how we got to a point where a right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled fixed.

I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?

I don't want to tie you down on any future decisions, but how'd we get there when we can read this book, and it says certain things, and those aren't guaranteed, but the things that it doesn't say are?

JUDGE SOTOMAYOR: One of the frustrations with judges and their decisions by citizens is that -- and this was an earlier response to Senator Cornyn -- what we do is different than the conversation that the public has about what it wants the law to do.

We don't, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution, and see what it says, and attempt to take its words and its -- the principles and the precedents that have described those principles, and apply them to the facts before you.

In discussing the Second Amendment as it applies to the federal government, Justice Scalia noted that there have been long regulation by many states on a variety of different issues related to possession of guns. And he wasn't suggesting that all regulation was unconstitutional; he was holding in that case that D.C.'s particular regulation was illegal.

As you know, there are many states that prohibit felons from possessing guns. So does the federal government.

And so it's not that we make a broad policy choice and say, "This is what we want -- what judges do." What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix.

All of that is the court's function, so I can't explain it philosophically. I can only explain it by its setting and what -- what the function of judging is about.

Read the entire exchange between Sen. Coburn and Judge Sotomayor here.

By Washington Post editors  |  July 15, 2009; 11:13 AM ET
Categories:  Hearings , Supreme Court  
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