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Key Excerpt: Hatch and Sotomayor on Second Amendment Rights

CQ Transcriptions

HATCH: I want to begin here today by looking at your cases in an area that is very important to -- to many of us, and that's the Second Amendment, the right to keep and bear arms, and your conclusion that the -- that the right is not fundamental.

Now, in the 2004 case entitled United States v. Sanchez Villar, you handled the Second Amendment issue in a short footnote. You cited the second circuit's decision in United States v. Toner for the proposition that the right to possess a gun is not a fundamental right.

Toner, in turn, relied on the Supreme Court's decision in United States v. Miller. Last year, in the District of Columbia v. Heller, the Supreme Court examined Miller and concluded that, quote, "The case did not even purport to be a thorough examination of the Second Amendment," unquote, and that Miller provided, quote, "no explanation of the content of the right," unquote.

You're familiar with that.

SOTOMAYOR: I am, sir.

HATCH: OK. So let me ask you, doesn't the Supreme Court's treatment of Miller at least cast doubts on whether relying on Miller, as the second circuit has done, for this proposition is proper?

SOTOMAYOR: The issue...

HATCH: Remember, I'm saying at least cast doubts.

SOTOMAYOR: Well, that is what I believe Justice Scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental.

It's not that I considered it unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the state.

HATCH: Well, it didn't decide that point.

SOTOMAYOR: Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the court's precedent had held it was not.

His opinion with respect to the application of the Second Amendment to government regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller with respect to that issue.

HATCH: Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that it -- that the doctrine of incorporation is inevitable with regard to state -- state issues?

SOTOMAYOR: That's the very question that the Supreme Court is more than likely to be...

HATCH: To decide.

SOTOMAYOR: ... considering. There are three cases addressing this issue, at least, I should say, three cases...

HATCH:
Right.

SOTOMAYOR: ... addressing this issue in the circuit courts. And so it's not a question that I can address. As I said, I bring an open mind to every case.

HATCH: I accept that. In Sanchez Villar, you identified the premise that a right to possess a gun is not fundamental and the conclusion that New York's ban on gun possession was permissible under the Second Amendment, but there's not a word actually connecting the premise to the conclusion.

Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment.

Is that what you believe?

SOTOMAYOR: No, sir, because that's not -- I'm not taking an opinion on that issue, because it's an open question.

Read the entire exchange between Sen. Hatch and Judge Sotomayor. Read more on past court rulings and Second Amendment rights.

By washingtonpost.com  |  July 14, 2009; 11:56 AM ET
Categories:  Hearings , Supreme Court , Topic: Second Amendment Rights , Topics: Past Court Rulings  
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