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Key Excerpt: Graham and Sotomayor on Second Amendment

Courtesy of CQ Transcriptions
SEN. GRAHAM: Some states have different age limits for marriage. Some states treat marriage differently than others. And the court defer based on public policy. The reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change.

That's why we fight so hard to put on the court people who see the world like us. That's true from the left, and that's true from the right. And let me give you an example of why that's important.

We've talked a lot about the Second Amendment, whether or not it is a fundamental right. We all now agree it is an individual right. Is that correct?


GRAHAM: Well, that's groundbreaking precedent in the sense that just until a few months ago, or last year I guess, that was not the case. But it is today. It is the law of the land by the Supreme Court that the Second Amendment is an individual right. And you acknowledge that, that's correct?

SOTOMAYOR: That was...

GRAHAM: The Heller case.

SOTOMAYOR: ... the decision. And it is what the court has held, and so it is unquestionably an individual right.

GRAHAM: But here's the next step for the court. You will have to, if you get on the court, with your fellow justices, sit down and discuss whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th Amendment and applied to every state.

Isn't it fair to say, Judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you're going to come down based on what you think America is all about?

: No, sir.

GRAHAM: So what binds you when it comes to a fundamental right?

SOTOMAYOR: The rule of law. And...

GRAHAM: Isn't the rule of law, when it comes to what you consider to be a fundamental right, your opinion as to what is fundamental among all of us?

SOTOMAYOR: No. In fact the question that you raise is it fundamental in the sense of the law.

GRAHAM: Right.

SOTOMAYOR: That's a legal term. It's very different. And it is important to remember that the Supreme Court's precedent on the Second Amendment predated its...

GRAHAM: I hate to interrupt, but we have -- is there sort of a legal cookbook that you can go to and say this is a fundamental right, A, and B is not?

SOTOMAYOR: Well, there's not a cookbook, but there's precedent that was established after the older precedent that has talked and described that doctrine of incorporation.

Read more of the exchange between Sen. Graham and Judge Sotomayor here.

By Washington Post editors  |  July 16, 2009; 10:35 AM ET
Categories:  Hearings , Supreme Court , Topics: Second Amendment  
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