Sotomayor's confirmation will likely shrink property rights and Second Amendment rights

President Obama has nominated Judge Sonia Sotomayor to the Supreme Court.

Her appointment could further shrink the property rights of homeowners and small businesses, says law professor Ilya Somin in an editorial. Somin says that Sotomayor takes the Supreme Court's controversial 5-to-4 Kelo decision, which allowed homes to be seized for the benefit of developers, and expands it beyond even what the Supreme Court intended:

"In 1999 the village of Port Chester, N.Y., established a 'redevelopment area,' giving designated developer Gregg Wasser a virtual blank check to condemn property within the area. When local property owners Bart Didden and Dominick Bologna sought a permit to build a CVS pharmacy in the area, Wasser demanded that they pay him $800,000 or give him a 50 percent partnership interest in the store, threatening to have their land condemned if they said no. They refused, and a day later the village condemned their property. Didden and Bologna challenged the condemnation on the ground that it was not for a "public use," as the Constitution's Fifth Amendment requires. Their argument was simple and compelling: Extortion for the benefit of a private party is not a public use. In a short, cursory opinion, Sotomayor's panel upheld the condemnation."

Leading law professor Richard Epstein has also expressed concern about Sotomayor's ruling and how it could be used by government officials and politically-connected people to effectively seize property from the politically-powerless.

Sotomayor inadvertently misstated the facts and holding of the Kelo case today in her comments to the Senate.

Small-business owners would be subjected to more costly lawsuits under Sotomayor's jurisprudence, say commentators at National Review's The Corner, such as an expert on business law.

Today, in Senate hearings, Judge Sotomayor discussed her frequently-made claim that a "wise Latina woman" would tend to reach a "better conclusion" than a "white male." The Supreme Court reversed her ruling in the Ricci case, in which she ruled against high-scoring white and Hispanic firefighters whose promotions were rescinded when not enough blacks passed the exam on which promotions were based.

Judge Sotomayor has argued that imprisoned felons have a right to vote which it is racially discriminatory to deny, and that the death penalty is racist. Legal commentator Stuart Taylor discusses Judge Sotomayor's approach to racial and civil rights issues.

Sotomayor will likely vote to reduce Second Amendment protections to virtually nothing while on the Supreme Court, say gun-rights advocates. By a narrow, 5-to-4 vote, the Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment does confer an "individual right," striking down a Washington, D.C. gun ban.

But it specifically left open in a footnote whether the right to bear arms was fundamental enough to be applied not only against the federal government, but also against the states. Rights in the Constitution that are not "fundamental" -- like the Seventh Amendment right for a plaintiff to have a federal jury trial on request in lawsuits exceeding $20 -- do not apply against the states, but rather only against the federal government. (Most rights in the Bill of Rights, like the right to free speech, are deemed "fundamental" enough that they apply against state governments, not just the federal government).

Judge Sotomayor recently ruled that the right to bear arms does not apply against the states. While recognizing today that the Second Amendment confers an "individual" right, she ruled in Maloney v. Cuomo (2009) that it does not confer a fundamental right that limits states' power to ban guns. And she stated in an earlier ruling that "the right to possess a gun is clearly not a fundamental right." Effectively, her ruling would leave the right to bear arms unprotected everywhere except in federal enclaves like the District of Columbia.

Since some states, like California, have no provision protecting the right to bear arms in their state constitution, the practical effect of Sotomayor's ruling is to leave citizens of those states with no right to bear arms at all. Their state legislatures could simply take away their guns.

Moreover, Congress could effectively make states restrict gun ownership or use, by requiring the states to do so as a condition of federal funds. While some conservative judges, like appellate judge Michael Luttig, have sought to place limits on the federal government's ability to make states adopt regulations in exchange for federal funds (see Commonwealth of Virginia v. Riley (4th Cir. 1997)), liberal judges in the last decade or so have generally dismissed such limits as relics of a bygone age, and the Supreme Court earlier broadened the reach of federal power under the Constitution's spending clause in cases like South Dakota v. Dole.

Judge Sotomayor's belief that gun-rights are not "fundamental" enough to be protected against state prohibitions has been rejected by many other judges. Even Democratic appointees like federal appellate judges Ronald Gould and Arthur Alarcon, and even the famously liberal Ninth Circuit Harry Pregerson, have recognized that the right to bear arms is fundamental enough to apply against state governments, too.

Thus, President Obama's decision to nominate Sotomayor, rather than another high-profile liberal judge (like Judge Gould), may have a profound effect on the scope of Second Amendment rights.

Justice Souter, whom Judge Sotomayor is replacing, recognized at least some Tenth Amendment limits on federal regulatory power (see New York v. United States (1991)). It is not clear whether Judge Sotomayor will do the same.


By: wet501 (8074.12)

Tags: SCOTUS, Sotomayor, supreme court, second amendment, 2nd amendment, gun rights, confirmation

Location: Washington, United States

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