Of Guns, Private Property and Judge Sotomayor

Once again, in the still-unfolding confirmation hearing on Supreme Court nominee Sonia Sotomayor, we are being treated to a lesson in why the Republicans rarely achieve their goals in Washington.  This is largely the result of their inability or unwillingness to play hardball; the failure to ask tough questions; and allowing nominees for high office to bloviate their way around answering direct questions.

First of all, let’s establish one ground rule:  there is no legal or constitutional prohibition against requiring a nominee for the federal bench, including the United States Supreme Court, to answer probing questions about their judicial philosophy and of their views on fundamental rights.  Should not  this be the price they pay for confirmation?  The modern notion that a nominee must be permitted to refuse to answer tough questions about whether they believe it is the job of a judge to protect fundamental liberties enshrined in the Bill of Rights, for example, is a made-up rule of recent decades designed by advocates for particular nominees to protect them from answering questions that might actually reveal their fundamental philosophical beliefs.  (One exception to this “kid gloves” approach was the manner in which the then-Democratic majority beat up on Supreme Court nominee Robert Bork’s philosophy.)

Republicans consistently will come close to the brink of actually demanding real answers to relevant questions, but they then invariably draw back when confronted with the apparently impenetrable shield that, the “Supreme Court may after all one day have to render a decision on that issue, so I am bound not to reveal anything of my views on that fundamental right.”  Poppycock.  If we cannot find out what are the fundamental philosophical views of a prospective Supreme Court nominee, why should they even be considered for confirmation?  Is there any other category of nominees for whom it is more vital that we be made privvy to their views of (and the value they place on) our fundamental rights and liberties, than prospective members of the United States Supreme Court?

Let’s take two fundamental rights enshrined and guaranteed in the Bill of Rights:  private property rights and firearms rights; the first is guaranteed in the Fifth Amendment to our Constitution and the latter in the Second.  Judge Sotomayor was questioned about both at her hearing yesterday.

Sen. Herb Kohl of Wisconsin asked her about her view of the fundamental right of a private property owner not to have their propertry taken by the government under condemnation proceedings just so the property could be used for a more lucrative purpose (as was allowed by the Supreme Court in the infamous, 2005 Kelo v. City of New London case that was supported by the justice Sotomayor is to replace — David Souter).  When “pressed” to provide the American people her view of the importance of private property rights as opposed to forced government “takings,” Sotomayor was allowed to reveal nothing.  She said she couldn’t answer such questions other than to “follow” precedent, not to “pre-judge,” and to keep “an open mind.”  Boy is that encouraging — another Supreme Court justice who won’t  even admit to believing in and supporting the fundamental right to protect private property against improper taking by the government.

Sotomayor’s views of the Second Amendment’s guarantee of the right to keep and bear arms is similarly superficial and disappointing.  When pressed by Sen. Orrin Hatch of Utah on this issue, Sotomayor once again, and repeatedly, assured us she would “bring an open mind.”  Frankly, I’m ready for a Supreme Court justice that has the judicial backbone to say they actually believe in, understand, and will actually defend – through judicial decisions – those fundamental rights guaranteed us in the Bill of Rights.  I’m tired of nominees saying in effect that they will “keep an open mind” on whether we even have such fundamental rights as are specified in the Bill of Rights.

The furthest Sotomayor would go on the Second Amendment question (and Hatch did press her pretty hard, but then, true to form, backed away) was to say that if the Court ever did decide in its wisdom to incorporate the Constitution’s guarantee of the right to keep and bear arms as against state government infringement, then perhaps she might recognize it as a fundamental right!  Such reasoning turns the Fourteenth Amendment’s guarantee that our fundamental “privileges or immunities” will be protected against infringement by the states, on its head.

With confirmation questioning like this, is it any wonder our fundamental rights – which are supposed to be guaranteed by the very Constitution judges such as Sotomayor take an oath to protect and defend — are being dramatically reduced by both the Senate and the federal judges its members confirm?

48 comments Add your comment


July 15th, 2009
7:23 am

Gee, a Supreme Court Justice who wants to keep an open mind! What a horrible thing that would be! ???? If this is what Barr’s column is going to be like through the entire confirmation process – it’s going to be loooooong!


July 15th, 2009
7:25 am

Great article! Thanks for speaking out on this, Mr. Barr!

Jud Williams

July 15th, 2009
7:41 am

‘People’ have the right to bear arms.

The Second Amendment clearly asserts that each state is “free” and able to maintain a militia to remain free. This is unlike many other countries, where local militias are nonexistent. This is one of the unique qualities of the United States. If a foreign power were to invade America, they would have to overrun the militia of each state and each state would in turn have to surrender before the central government is forced to capitulate to such an invading power. The American Civil War is a clear example of how this works as each state of the former Confederacy was required to pledge allegiance to the federal government prior to being readmitted to the Union. It goes without saying that for a militia to be effective, it would necessarily need to possess arms. So why would the amendment go on to say that the people have the right to bear arms? That would be merely stating an obvious redundancy, since a militia is in the business of carrying out military functions, which includes the use of arms. The key to the second part of the amendment is that the “people” have the right to bear arms. By using the word “people,” the amendment is stating that it is a right to be enjoyed by all Americans in an inclusive sense.


Cumming, GA


July 15th, 2009
8:00 am



July 15th, 2009
8:03 am

Dee, you really think soto has an open mind or is it really that if she opened up we would hear the same bigoted remarks she has made. The fact is, the libs on the court stold from the poor, Mrs. Kelo, and gave to the rich, a pharma company, and Soto most likely agrees with the decision. Many states heard the decision and bolstered state laws to keep it from happening again but the fact is, libs use the little people like Kelo. Yes, Mrs Kelo, you have lived hear your whole life but we liberals can take your property and get more tax money from big Pharma, hit the road bi och.


July 15th, 2009
8:12 am

Dee, you ignorant s1ut. An “open mind” of a racist nominee vs the Bill of Rights?!? Really??? Bill of Rights wins everytime. Someday maybe you will understand. Now go finish your Fruit Loops; Sesame Street is almost on.


July 15th, 2009
8:16 am

Beyond the fact that Obama picked a woman and a ‘minority’, the real meaning in this nomination is that she is also being touted as a success of the welfare state. Look how far she’s come after all…what with her gender and ethnicity holding her back…thank God the federal govt was there to ensure her success.

You’re right to narrow your focus BB. Once the utopians have whittled away at the 2nd amendment they will go hard against the 5th.


July 15th, 2009
8:21 am

Sotomayor clearly depicts herself as a racist in her comments against white males and her decision to disregard their higher test scores intended for application in promoting the CT Firefighters. It’s a disgrace that she is even nominated. It’s blessing that her soon to be associates found it within their constituency a majority vote to overrule her decision. Good for them but bad for the US once she takes the bench. From our economy, to unemployment, now to our Supreme Court the situation continues to worsen.

Jim Callihan

July 15th, 2009
8:30 am

…is wondering why the Supreme Court has yet to hear evidence challenging the validity of a birth certificate, even though Hawaii’s state officials have done so?

…is wondering why foreign armies are inside America, training with FEMA to prepare for a supposed “terrorist invasion”?

…is wondering why genuine, Constitution-loving, rule-of-law supporting, American patriots are being called “terrorists” by our own government?

…is wondering why the crisis in Honduras has gone unaddressed by our POTUS and Congress and Obama working with known communist/socialist to restore a legally removed Honduran leader?

…is wondering why every State in the union re-wrote their respective Constitutions…100 years AFTER the Civil War?
http://www.teamlaw.org (”History of this nation” tab, “The States Join Corp. US”)

…is NOT wondering why 70 million firearms is a problem for those intent on removing American Sovereignty.



July 15th, 2009
9:10 am

” is a made-up rule of recent decades designed by advocates for particular nominees to protect them from answering questions that might actually reveal their fundamental philosophical beliefs. ”

Sir, you know this is incorrect. Until recent decades Congress never asked aany Court nominee any questions. The hearing was over & done in 10 minutes behind closed doors. It was only upon the advent of TV coverage that hearings turned into the three ring circus we have today.
The hearings serve to allow the Senators free TV coverage for their next election. Every senator now on the Judiciary Committee knew how he would vote on the Sotomayor confirmation before the hearings opened.


July 15th, 2009
9:29 am

RE the 2nd Amendment cases before the court – please remember that the Heller decision last year only said that the right of the people to bear arms applied to Federal actions – the District of Columbia could not infringe on the right. Justice Scalia said nothing on the ability of the States to infringe the right. Until the Court speaks, the State of Georgia can take everyone’s firearm.

And remember, the New Haven firemen decision that Sotomayor participated in could have only been rendered on the side of the firemen
if the appeals court had legislated from the bench. And legislating from the bench is what the Supreme Court did in ruling for the firemen.
A new law is on the books today created the the 5 justices in the majority. I would rather have the legislators elected by the people make new laws.

One is either opposed to legislating from the bench or in favor of legislating from the bench. You can’t cherry pick the issues upon which you want the court to legislate.

I am a Constitutional Conservative & I support Sotomayor because in 17 years on the bench she has not legislated from the bench a single time.
Chief Justice Roberts has been on the SCOTUS 4 years & had legislated from the bench 11 times. ( I keep count).

JF McNamara

July 15th, 2009
9:47 am

To me, this doesn’t make a lot of sense. I thought a judge was supposed to take an objective look at the intent of laws established by Congress and previous precedent to come to a case ruling. That means their personal views should take a back seat and that’s what she said.

Out of over 3000 cases, there is question about 1 (the firefighters) which was 5-4 in the Supreme court. There have been some worrisome statements, but nothing in her rulings indicate major bias towards anything. I’ve even read where she’s called unpredictable because she relies heavily on precedent.

Maybe there just isn’t much to ask after reviewing her rulings and the Republicans don’t want to make an issue over nothing. I mean, Clarence Thomas beat a sexual harrassment charge. Nothing she’s done is even close to that.


July 15th, 2009
9:59 am

The Republicans need to be bloviating and posturing more on this issue, since they lack the power to do anything about it and need to score political points with their “base.” Mr. Barr is absolutely correct.

And Judge Sotomayor will be confirmed, and her correct, LIBERAL interpretation of the Constitution will remain a valued voice on the Court to ensure justice, despite the best efforts of clowns like Scalia, Thomas, and Alito… the doomed minority.

Suck it up, clowns. You lost. America won.


July 15th, 2009
10:16 am

It’s all nice to sit back and believe that judges never use their personal opinions in forming their decisions, but then reality sets in and you see that that is nothing more than an ideal, not a reality. I’m no judge, but I’d have to guess that, being human, many judges base a number of their decisions on personal beliefs. And that is why congressional committees ask these questions.

If Sotomayor refuses to give her opinion on certain issues, it’s only because she knows those opinions are not held by a majority of Americans. Plain and simple.


July 15th, 2009
10:33 am

Yeth you clownths. America won! America won! Hooray! Yippee! Now go back to work you terrible inthenthitive neoconths. Our glouriouth prethident needths your money for nithe thtuff to help poor people.

Chris Broe

July 15th, 2009
10:55 am

Y-y-yeah! Obama needs your m-m-money to p-p-pay for p-p-poor people!


July 15th, 2009
11:18 am

Interesting article Mr. Barr. However, the Constitution does not grant citizens rights, the Constitution and Bill of Rights limits the government, meaning, it doesn’t tell citizens what they can do, it tells the government what it can’t do. There’s a reason the first ammendment starts with, “Congress shall make no law…”

JF McNamara

July 15th, 2009
11:52 am

I don’t doubt that personal interpretations come into play with judges, but their job, first and foremost, is to interpret the laws of Congress and use precedent. That is, by and large, what all judges do. If you don’t believe that they do that, you’re entitled to your opinion, but I believe you’re incorrect.

From my reading, her actual record of over 3,000 cases doesn’t show her to be activist or have any history of radical rulings. There is no reason to doubt her motives.

Not sharing her beliefs in this situation doesn’t mean that you have something to hide. It just means that you don’t want to say anything that could be taken as controversial. It’s what she’s been coached to do to gain easy confirmation. Everyone knows her beliefs. She has a long record in the courts system.

Redneck Convert

July 15th, 2009
11:52 am

Well, they’ll take my antitank weapon and the two machine guns I use for hunting and self-defense when I’m stretched out cold in a morgue.

Me, I think they ought to make people like Sotomayor say exackly how they’d rule in every case they bring up. I’m tired of this beating about the bush. If it’s a godly Conservative, well, maybe they can cut them some slack. But we’re talking about my Rights here, so libruls ought to swear on a Bible they won’t never rule against me being able to own and carry as many guns as I like and me being able to own a trailer without the guvmint coming in and taking it just to put in some fancy house or guvmint building or bridge or something. I expect to be able to take my property to the grave with me and hold onto it forever.

That’s my opinion and it’s very true. Have a good day everybody.

Chris Broe

July 15th, 2009
12:02 pm

Bloviate. Bork. Yes, they both start with “B”. However to not connect the two and explain how Biden, fresh from a plagiarism scandal that ruined his own candidacy, unfairly misrepresented Bork’s credentials during the Reagan appointee’s confirmation hearings is unpardonable, especially when even a casual exploration would have made a more salient point than whatever Barr didn’t make today with the crap he presented….aw, I’m sick of the AJC.

The “writers” at the AJC are the Flying Elvis’s of Journalism. (more accurately, The Writing Yanni’s). I hate sellouts.

The writers at the AJC sold out long ago, and we prosper not from these posers’ poor nose for prose.

Ray Pugh

July 15th, 2009
12:25 pm

jconservative, your statement regarding the application of Am.2 to states is false, per usual. The amendment itself only binds the federal government, as stated, but Am.14 binds the states to all the provisions set forth in the Bill of Rights without qualification.

Ray Pugh

July 15th, 2009
12:28 pm

Oh, and to all you gun control poofs: yes, the language of Am.2 is vague, but when a statute/amendment/regulation is made, the court then looks to the intent of the drafters to guide it in application. In the case of Am.2, it is overwhelmingly clear that the drafters (the Founders, through such writiings as the Federalist Papers) of Am.2 were in favor of a right to keep and bear arms.


July 15th, 2009
12:57 pm

Every time I read your drivel I thank my lucky stars that you got booted out of office and have no chance of re-election.

DeKalb Conservative

July 15th, 2009
1:10 pm

Perhaps instead of asking opinions about particular cases, she should be quizzed on reciting / defining an amendment. In the case of the second amendment and all other amendments, see if she can recite the wording of the amendment. Can she recite it word for word, unlikely, nor would I expect most people, including judges to do so. Can she recite the concept of it and adhere to the definition of how the amendment is framed in The Constitution? This is the true question for confirming any nominee and this will provide the insight of if a person believes the amendments are fixed, ie a constraint, or if they are loosely defined and open to interpretation.


July 15th, 2009
1:48 pm

Bob, do you REALLY think ole Clarence Thomas said what he REALLY thought during his hearings?

And do you think Clarence would be on the Supreme Court were he not a black man replacing amother black man (Thurgood Marshall)? How’s that for racism? Glad to know Republicans utilize it when it serves their best interests.

‘Nuff said.

If Clarence Thomas can be confirmed anyone should be.


July 15th, 2009
1:56 pm

“but Am.14 binds the states to all the provisions set forth in the Bill of Rights without qualification.”

Ray Pugh – The above statement is where we want to be legally. The court, however, has not ruled that way to date. The court rules on the application of each amendment individually. But, Scalia did not rule on this in his majority opinion in the Heller case. The rule of law as it stands today is the 1886(?) court ruling that the 14th Am does not apply the 2nd Am to the states. There are cases in the pipeline that when SCOTUS accepts one will allow the majority to make that ruling if they are so inclined. It appears they are so inclined.
The court generally rules on the specific case in front of it and does not normally make sweeping decisions (as in Brown vs Board…).


July 15th, 2009
2:53 pm

I think Ms. Sotomayor should answer every question posed, whether it be about abortion, gun rights, gay rights, or civil rights. We can’t understand her perspective until she explains it.


July 15th, 2009
3:15 pm

Barr, you really should be ashamed of yourself. Sure, all judges are sworn in to uphold the Constitution but hey lets only have judges who prejudge the issues or who cannot set aside their personal views and uphold the rule of law. Why not elect the judges so that we can get only those who agree with one groups view. I am sure we can elect those who agree that NRA needs to be shut down. We can ignore her many judicial decisions and opinions because she may be hiding something or because we want cases to be about a vote and not about the laws and interpreting the Constitution. She might have voted with the Taney court to permit continued slavery if we elect the Supremes rather than make a decision based on the real facts as in Brown v. Bd of Education. Supreme Court appointments are for life for a very good reason. Your so-called second amendment guarantees is an interpretation but I doubt its based on sound judicial reasoning. Judges decide actual cases based on facts, issues and prior precedents. There are nuances and gray areas. But that does not work well for an audience that only wants easy soundbites.

You don’t represent the “American people.” You never did. You never will. The reason Republicans are not achieving their “goals”? They failed to convince the voters that their goals had viability and deserved support. They had a chance and time showed the weakness and flaws of their ideas, their infidelity, lies and deceit (like your own).

If you have a legitimate point about her decisions to question and her reasoning ability, then bring it out. The process should be about appoint good judges who use good judicial reasoning and not about the political agenda.


July 15th, 2009
3:17 pm

I think you mean you can’t DISTORT and TWIST it until she actually says something.

And, as already noted, her personal opinions are not the same as her judicial opinions. That’s what makes a judge a judge, as opposed to a random blogger.


July 15th, 2009
4:31 pm

In other words, Mr. Barr, legal decisions are not to be rendered based on law, intent of Congress in crafting the law, and legal precedent, but on ideology and personal biases. And a candidate should tell you what ideology and personal biases are up front, so you can decide if they coincide with YOUR ideology and personal biases.

If a candidate simply says she will decide cases based on law, not ideology, and especially not YOUR ideology, that’s not acceptable to you. And then you complain about courts MAKING law instead of following the law. You can’t have it both ways without talking out of both your mouths, which is a talent you are quite adept at, it seems.


July 15th, 2009
11:55 pm

If she fails to answer how she fills on our constitution rights, then she will lie about other things. Just like the other democrats have lied to get elected. I am a democrat, but I didn’t vote for one this time, and if they continue to lie I won’t vote for them again. EVER!!!!!!!! Thanks Mr Barr.


July 16th, 2009
12:23 am

VK, If you think the republicans lied, you better wake up and smell the coffee,and get off the hard stuff. You must be in another world if you think Soto is the one for the job. I rather have my 10 year old granddaughter than Soto. She won’t even answer the question weather she is for or against abortion. Read between the lines, she is for murdering poor innocent babies, and also our 2nd amendment rights to own firearms.


July 16th, 2009
12:29 am

Bob Barr, you hang in there, I’m behind you 100%. If you ever need to fly, get in touch, and I’ll see that you fly first class. If have to on my private jet.


July 16th, 2009
8:01 am

She will be confimed. Just as any non-white and non-male would be confimed. Her qualifications are that she is not white and she is not male.

The REAL GodHatesTrash, Superstar

July 16th, 2009
8:15 am

Now, now, let’s back up here.

I can tell by many of the comments above that many of you are still very upset that there is a black man with a name that sounds funny to you in the White House, and that the idea of a Puerto-Rican American (horrors!) woman (double horrors!!) on the SCOTUS makes you want to hold on to your little members and cry even more than you usually do.

Time to man up. Wipe those tears.

And stop playing with that!


July 16th, 2009
8:20 am

Sotomizer is a closet racist and a flat out bad judge. Her rulings have been overturned numerous times and she admits that she is an affirmative action baby all the way.

That proves 2 things.

1: She is an unqualified idiot who was given special treatment because she is a Latina.

2: She hates white people and therefore makes her a racist.

All of this “evil white people” that she and people like Maureen Dowd tout is nothing but racism and revenge for what they see as historical white power. Even though white people built this country, gave them jobs and made America free, she sees them as evil.

Well let me turn it around on minorities for a moment. Blacks kill each other and drop out of high school. Africa is a hell hole created by blacks who kill and import slavery of their own people. Latinos come here illegally for a better life all while flying Mexican flags and talking about how great Mexico is. Go figure. Asians go to school and work hard without complaining. All in all, blacks are lazy and want government to give them other peoples money.

So, anyone want to argue those points?


July 16th, 2009
8:27 am

Another home invader was shot by a homeowner yesterday. The invader held a gun to a ten year old’s neck while looking for easy money when an 83 year old got his own gun and shot at the intruder. This is about the 4th story in the past few months where the invader lost. Why do democrats want the invaders to win and the homeowners to lose. Can any lib hear come up with the mythical story where the good invader is unarmed and not a danger until he finds a homeowners gun and then kills all. Libs think that If homeowners did not have guns, the robbers won’t rape or kill them.


July 16th, 2009
8:29 am

bob, libs love bad people plain and simple.

They love:

Hitler, Stalin, Marx, Obama, Kennedy, Hillary, Michael Jackson, Castro…….

They don’t like people to defend themselves and would rather have people love and trust in their government even though government is a bunch of horse $hit.

JF McNamara

July 16th, 2009
8:57 am

I don’t think anyone wants to argue those points with you 1984 because its clear that you are racist who just wants some attention. Why bother? If you want to believe the world is nothing but stereotypes, then discussing those topics with you is a just waste of time.


July 16th, 2009
9:03 am

JF McNamara, you totally missed my point but nice try in trying to call me a racist you jerk. If you had read what I actually wrote instead of cheery picking certain words you’d know that I was turning it around on libs like Dowd and Sotamayor for being and saying racist things. Jerk.


July 16th, 2009
9:11 am

As a wise white man, I would hope that my experience as a white man would help me see things differently than some hag latina woman.

See JF McNamara, THAT statement is racist. It’s exactly what she said.


July 16th, 2009
9:57 am

I always enjoy the Supreme Court Senate Judiciary hearings because the adversaries (this time the Republicans) always try to nail down the nominee to specifics and the nominee (whether a Democratic or Republican) will remain vague. What always comes out is that the nominee, in most cases, has more knowledge about the law, and its nuances, and the Constitution than the Senate Committee questioners. Unless Sotomayor really screws up she will be confirmed, as Senator Lindsey Graham noted early on. Thus far, she, like Roberts and Alito before her, is showing that she is “fully qualified” to sit on the SC.


July 16th, 2009
11:25 am

Anybody got a wheelbarrow to sell so that I can take my guns to town with me? :roll:


July 16th, 2009
2:20 pm

Now that the Sotomayor hearings are almost done, guess what!! All the Republicans on the Judiciary Committee will vote her down and all the Democrats will vote for her confirmation. Not much new here.


July 16th, 2009
4:43 pm

I see where the NRA opposes Sotomayor’s nomination to the Supreme Court. In my book that affirms my belief she is a very qualified candidate and should be confirmed.


July 16th, 2009
4:59 pm

Bob…right. Home invasion defense are the only time guns are used. Guns are never used in crimes on the street, or children accidently shooting themselves or others or in thousands of other gun deaths. And those home invasion situations involve the need for cop-killer bullets and AK47s. Maybe we should give each home owner a small nuclear warhead. That will stop break ins. No point having real background checks or a 5 day wait period. No point in requiring gun shows to abide by the restrictions.

747, are you sucking the fumes? You want her to change the law now? Roe v Wade is established law. Murdering babies? No need to do that. Just let them be born and then you gun nuts claim a right to shoot and kill. Drink some more of the koolaid.


July 16th, 2009
10:51 pm

What I am saying is, we don’t need someone of this caliber to be trusted to sit on the bench of the supreme court of the United States of America. She won’t answer half of the questions that have been presented to her,so I’m saying she can’t be trusted. So VK there are no fumes to smell (or suck as you say) and for sure no koolaid to drink from my standpoint. It’s funny to me congress changes the laws of the United States as they wish, and I say that half of the ones that have been in office for so long, are there for themselves and themselves only. They need to be voted out and replaced with someone that are for the people and not for themselves.


August 4th, 2009
4:35 am

AS a strict non-believer in the supreme courts ’s ability to understand what most third year law students are taught; I don’t think J. sotomayor, the “liberal sweetheart” has or should have any place on the bench. It seems obvious to most law scholars, esp.. those of us earning our PHDs, that the local police are NO substitute for a well armed militia, as is prescribed in the constitution. Since Sotomyaor doesn’t hold this view anyone who believes in freedom and the constitution, as it is written, cannot in good conscience endorse Judge Sotoamyor.

R. Benson C of 2010