Supreme Court holds Second Amendment applies to states, local governments

The Supreme Court has issued its long-awaited opinion in the Chicago gun ban case of McDonald v. Chicago. The Court, in a 5-4 decision, held that the Second Amendment applies to state and local governments, not just the federal government.

Read the Court's decision here.

From the Los Angeles Times:

The Supreme Court reversed a ruling upholding Chicago's ban on handguns Monday and extended the reach of the 2nd Amendment as a nationwide protection against laws that infringe on the "right to keep and bear arms."

The 5-4 decision appears to void the 1982 ordinance, one of the nation's strictest, which barred city residents from having handguns for their own use, even at home.

The ruling has both local and national implications. ...

Good news to start the week.

I guess it's Diversity, of a sort

Today's quote of the day, from Radley Balko over at Reason Magazine:

With Kagan, Supreme Court will get yet more diverse: It will have Catholics from Harvard or Yale, an African-American from Harvard or Yale, women from Harvard or Yale, a Hispanic from Harvard or Yale, and a Jew from Harvard or Yale.

McDonald v. Chicago oral argument transcript

... is now available from the Supreme Court website here for those interested.

According to Orin Kerr over at Volokh, the Court has evidently decided not to release the audio of the oral argument before its normal release at the end of the term, so I guess we'll have to wait until June or so to hear it.

Supremes look set to apply Second Amendment to states

From SCOTUSblog, on today's oral argument in McDonald v. Chicago, the Chicago gun ban case:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a “right to keep and bear arms” should be spelled out: would it be only some “core right” to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some — but perhaps fewer — limitations.

The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas. And, while no one said that the issue of “incorporating” the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a strong of likely precedents coming as time went on.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed. ...

Read the rest here.

Why U.S. v. Miller was so badly written

Dave Kopel makes the case over at Volokh:

Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that the decision is congruent with a well-established line of state right to arms cases (some of which were cited in Miller) that all persons had a right to arms, but that the right only encompasses militia-type arms (and not, therefore, Bowie knives or other arms associated with disreputable brawlers). However, Miller is not clearly written, and over the subsequent seven decades, there was much dispute about its meaning. The disputes were almost inevitable, in that Miller is terse and oblique, and, except for a history of the early American militia, provides almost no explication or analysis.

At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion. ...

Read the rest here.

On a related note, today the Supreme Court will hear oral arguments in McDonald v. Chicago, the Chicago gun ban case, on whether the Second Amendment applies to states and their political subdivisions.

An interview with Justice Clarence Thomas

Via The Anchoress, comes this interview with one of my favorite jurists, Supreme Court Justice Clarence Thomas.

View it here. About 90 minutes long.

Supreme Court overturns more McCain-Feingold restrictions

Yesterday, the Supreme Court issued its opinion in Citizens United v. Federal Election Commission, overturning several campaign finance-related restrictions as violative of the First Amendment.

SCOTUSblog has good roundups of media reactions and commentary on the ruling here and here.

You can read the Court's opinion here.

Of note, I believe both the NRA and the ACLU had filed amicus briefs urging the Court to overturn the contested provisions.

NRA seeks podium time at Supreme Court oral arguments for Chicago gun ban case

From SCOTUSblog:

The National Rifle Association asked the Supreme Court on Tuesday to allow its lawyer to take part in the oral argument March 2 in the case testing whether the Second Amendment restricts the power of state and local governments to pass gun control laws. It sought 10 minutes of time allotted to the individuals and groups that are pursuing the Amendment’s extension, to put more stress on an alternative constitutional argument. The request, the NRA noted in its motion, is opposed by the lead parties in McDonald, et al., v. Chicago (08-1521). Those parties are expected to file a written opposition shortly. The Court will consider the NRA request at its private Conference on Jan. 15.

The Court in the McDonald case will consider two main arguments for applying the individual right to possess guns to state and local laws: first, that gun rights should be protected at those levels by the 14th Amendment’s “Privileges or Immunities” clause; and, second, the protection should come under the Amendment’s Due Process clause. Both of those arguments are at issue in the question presented by the petition. The NRA said it wants to put stress on the due process argument.

In their merits brief in the case, the NRA noted, Otis McDonald and the others appealing “have concentrated their argument on a Privileges or Immunities Clause theory that would require overruling at least three of this Court’s precedents.” And, the motion added, only 7 pages of the 73-page McDonald brief discuss the Due Process Clause.

The Due Process Clause, former Solicitor General Paul D. Clement said in the NRA motion, “presents the most straightforward and direct route to reversal of the decision” of the 7th Circuit Court against extending the Second Amendment to the state and local level. “Because the Due Process Clause represents a route to reversal that does not necessitate the overruling of this Court’s precedents, it would be particularly unfortunate if that argument was not adequately presented at oral argument.”

The NRA maneuver brings further out into the open the strategic differences in pursuing the two alternative arguments. ...

Read the rest here. As an aside, note that the NRA has hired former Solicitor General Paul Clement to represent it in this case. As Solicitor General for the Bush administration, Mr. Clement argued against us in 2008's historic Heller case.

Stephen Halbrook podcast interview

From Dave Kopel at Volokh:

A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3–0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the courts and the legal academy back on the track of recognizing the right to arms in the Second and Fourteenth Amendments. We talk about the broad scope of Halbrook’s career, and about McDonald v. Chicago, in which Halbrook is representing the National Rifle Association as a party “respondent in support of petitioner.”

Listen to the interview here.

Killing Slaughterhouse

From Reason Magazine on the upcoming Chicago gun ban case, and the possibility that the Supreme Court will overturn its own 1873 Slaughterhouse Cases precedent as part of finding that the Second Amendment applies to the states via the Fourteenth Amendment's 'privileges or immunities' clause:

... As Damon Root explained at Reason back in February, getting rid of Slaughterhouse and restoring the 14th Amendment to its originally intended reach would do more than just make room for imposing Second Amendment restrictions on state governments: “The 14th Amendment was specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government.”

And that’s exactly why Gura’s kill-Slaughterhouse move is so controversial. Some of the amici briefs in the case—meant, remember, to support his victory in McDonald—have even argued strenuously against the main means Gura is relying on to win.

Since, as Gura wrote in the brief, “In 1868, the ‘privileges’ and ‘immunities’ of American citizenship were popularly understood to include a broad array of pre-existent natural rights believed secured by all free governments, as well as the personal rights memorialized in the Bill of Rights,” some right-leaning legal scholars and organizations that want to vindicate the Second Amendment are afraid of a Court emboldened via the Privileges or Immunities Clause to do some serious thinking—and acting—on the basis of such a “broad array of pre-existent natural rights.” ...

Read the article here.

Law enforcement trainers support self-defense for Chicagoans

The two major national organizations of law enforcement trainers, the International Law Enforcement Educators and Trainers Association (ILEETA), joined by the International Association of Law Enforcement Firearms Instructors (IALEFI), have filed an amicus brief in the Chicago gun ban case pending before the Supreme Court in support of the citizen's right to self-defense with firearms and against the Chicago gun ban.

The ILEETA/IALEFI brief, authored by noted Second Amendment advocate David Kopel, focuses on the failure of Chicago's draconian gun ban to reduce crime, and contains lots of tables and stats for the stats geeks. The amicus brief can be read here. As an item of trivia, the head of ILEETA, Ed Nowicki, is a retired Chicago cop.

Other signatories of the brief include the Southern States Police Benevolent Association, Texas Police Chiefs Association, Law Enforcement Alliance of America, Congress of Racial Equality, Claremont Institute, and Independence Institute, in addition to several professors and academics.

Notably, both ILEETA and IALEFI also supported the pro-individual rights side in last year's historic Supreme Court Heller case, which invalidated Washington, D.C.'s gun ban.

As a member of both ILEETA and IALEFI, I am quite pleased that they have once again joined the side of the citizenry, and individual human rights, over the tyranny of gun control and the tyrants who support citizen disarmament.

NBPA, SEIU's IBPO side with anti-gunners in Chicago gun ban case

From David Codrea, who has been exposing the various anti-gun groups who have signed the Brady Center's amicus brief against the people's right to self-defense in the Chicago gun ban case (McDonald v. Chicago) pending before the Supreme Court. The latest two anti-gun groups:

In Why do SEIU enforcers oppose you having guns?, Mr. Codrea examines the International Brotherhood of Police Officers (IBPO) anti-gun position:

... By their signing of the Brady brief, the IBPO is endorsing edicts forbidding the keeping and bearing of arms by any but the "Only Ones" as "reasonable." I'm sure by now those of you who have visited their site will have noticed they are part of a greater Service Employees International Union (SEIU), and may be wondering if the recent beating of a state worker at an SEIU meeting because he "wanted to expose alleged corruption within the union," and the earlier "smashing a black man on the cement and calling him n*****" at a town hall meeting may help explain why they might consider citizen disarmament to be reasonable--at least from the perspective of their self-interest . [links omitted] ...

And in Black police group endorses same anti-gun edicts imposed by slave owners, Mr. Codrea exposes the vile anti-gun position of the National Black Police Association (NBPA):

Here's the crux of what we need to know about them from their "Positions" page:

HANDGUN CONTROL. The NBPA supports national handgun legislation prohibiting further manufacturing of handguns, and limiting their sales, possession, and use. [emphasis added]

Ugh. Looks like the NBPA's fully on-board with serving the white massa's racist gun control agenda.

Supremes schedule Chicago gun ban oral arguments

From CBS News:

The U.S. Supreme Court has set a date to hear the landmark civil liberties case that will determine whether the Second Amendment prohibits state and local governments from enacting stiff anti-gun laws.

Oral arguments in the lawsuit, McDonald v. City of Chicago, will be held on the morning of March 2, 2010. A decision is expected by late June or early July. [emphasis added]

It's also worth noting the amicus briefs that have been filed in the last week or so in support of the Second Amendment Foundation and other groups challenging Chicago's handgun restrictions.

Read it here. Hopefully the Court will release the audio of the oral arguments shortly after their completion, as it did last year with Heller. You can read the various amicus briefs here.

Texas AG authors pro-rights amicus brief, 37 state AGs sign on

From the Lone Star State:

AUSTIN - From Texas Attorney General's Office - Texas Attorney General Greg Abbott today (Monday) took legal action to protect Texans’ Second Amendment right to keep and bear arms. In a brief filed with the U.S. Supreme Court and authored by Attorney General Abbott, 38 state attorneys general explain that law-abiding Americans have a fundamental right to bear arms – and that local governments cannot simply disregard that right and impose an outright ban on handgun possession.

“Just last year we successfully fought to have the U.S. Supreme Court confirm that Americans have an individual, constitutionally protected right to keep and bear arms,” Attorney General Abbott said. “Now, the City of Chicago claims that the Supreme Court’s year-old decision does not apply to local governments – so cities and towns can simply ignore the Second Amendment and pass laws that disregard city residents’ constitutionally protected rights. In response, we’ve built a coalition of 38 state attorneys general who reject Chicago’s attempt to circumvent the Constitution and who understand that all Americans – whether they live in D.C. or not – have a fundamental right to keep and bear arms.”

...

Attorney General Abbott’s brief is co-sponsored by Ohio, Arkansas and Georgia. Other states that joined the brief are: Alabama, Alaska, Arizona, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

Article here. You can read the brief here.

Naturally, the anti-rights jurisdictions, such as New York, New Jersey, Illinois (but not Wisconsin), were some of the twelve that did not join the list of states supporting application of the Second Amendment to the states. If your state's attorney general was one of the twelve that did not sign the brief, perhaps you should inquire as to why.

Privileges or Immunities and the Chicago gun ban case

Some of the law punditry over at Volokh give us their take on McDonald v. Chicago, the Chicago gun ban case. As most readers know, the Supreme Court has accepted the case and will likely hear oral arguments early next year.

Orin Kerr: How Many Votes To Overrule The Slaughterhouse Cases?

David Bernstein: How I’d Approach the Privileges or Immunities Issue in McDonald

Randy Barnett: Predicting McDonald

And from the WSJ's Law Blog: Will Gun-Control Case Prompt a Constitutional Reawakening?

Merits brief, NRA amicus brief filed in Chicago gun ban case

From SCOTUSblog:

With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level. The brief is dominated by a wide-ranging survey of the meaning and origins of the privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause. (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886. “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment] Section One’s clear textual command to the contrary.” Those three rulings, it added, “lack legitmacy.” ...

Read it here. The merits brief is available here. The NRA's amicus brief is available here.

I believe Justice Scalia hinted in a footnote in last year's Heller decision that the Court might be amenable to revisiting Slaughterhouse and related precedents. The challengers certainly appear to be focusing more on that argument (Privileges and Immunities) rather than hoping the Court will apply its convoluted Due Process and selective incorporation jurisprudence to resolve the case.

Sens. Hutchison, Tester, Rep. Souder to file amicus brief in Chicago gun case

From The Hill:

Two pro-gun rights senators are wading into a lawsuit pending before the Supreme Court that could further expand the Second Amendment and restrict governments’ ability to police the flow of firearms.

Sens. Kay Bailey Hutchison (R-Texas) and Jon Tester (D-Mont.) are joining Rep. Mark Souder (R-Ind.) in filing a joint amicus brief before the Supreme Court — repeating an effort they first made last year in the District of Columbia’s gun-rights case.

The lawmakers say they plan to ask justices to apply the Second Amendment more forcibly to states, siding with the National Rifle Association in seeking to overturn the city of Chicago’s handgun registration laws. ...

Article here. As you may recall, Senator Hutchison also led the effort last year to file an amicus brief in support of the individual-rights position in D.C. v. Heller at the Supreme Court. That brief was signed and supported by majorities in both houses of Congress.

More on Chicago gun ban case

Some more commentary on the upcoming Supreme Court hearing on the Chicago gun ban case, McDonald v. Chicago:

From Reason Magazine: The Supreme Court Takes on Guns, Again:

... Following Heller, it might seem clearcut that Chicago's gun control laws should meet the same fate as those in Washington, D.C. So why hasn't it worked out that way? The reason is that the Second Amendment, rare among the fundamental rights laid out in the Bill of Rights, has never been held to apply to actions of any government entity other than a federal one. (Of course, it wasn't even considered to do that until Heller.) In the legal lingo, the Second Amendment has not been "incorporated" against states and localities via the 14th Amendment. By contrast, the First Amendment (Gitlow v. New York), Fourth Amendment (Mapp v. Ohio), and others have been (but not, yet, the Third or Seventh). Furthermore, there is currently some disagreement on this question among different districts of the federal appeals court system.

The 7th Circuit has said no in various challenges to Chicago area gun laws, as has the 2nd Circuit, in the Maloney case. The 9th Circuit, however, earlier this year in the Nordyke case said that the Second Amendment does indeed bind states and localities—though the 9th Circuit recently heard another round of arguments in that case and has decided to postpone its decision until after the Supreme Court decides McDonald.

Yet as Gura has demonstrated at length in his McDonald filings—as have numerous gun-rights scholars, particularly Stephen Halbrook—the top concerns of the drafters and ratifiers of the 14th Amendment in 1868 were the ways the rights of African-American citizens were being violated with impunity in the post-Civil War South, often with the eager cooperation of local and state officials.

Among the fundamental rights noted by the amendment's boosters was the right to bear arms. The 14th Amendment's Senate sponsor, Jacob Howard, referred to the need to protect "'the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;...the right to keep and bear arms....' Howard averred: 'The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.'"

The 14th Amendment contains two phrases that could be used to protect individual rights against state and local government encroachment. The one that seems most clearly designed to do so is what Sen. Howard referred to above as "the first section," the Privileges or Immunities Clause, which says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

However, that clause has been a dead letter in American jurisprudence since the Supreme Court's 1873 decision in The Slaughterhouse Cases, an incredibly convoluted set of challenges to a legal slaughterhouse monopoly in New Orleans. ...

And CBS News: Gun Rights Case Could Turn On Civil War-Era Laws:

... In last year's Heller decision, both the majority and the dissenters reviewed the history of ratification of the Second Amendment. This time, when reviewing Chicago's ordinance, they'll likely look to the debate over the 1868 adoption of the Fourteenth Amendment (which is what provides an avenue for the federal Bill of Rights to apply to the states).

Sen. Jacob Howard's speech to the U.S. Senate in 1866 provides a glimpse into what was going through the minds of the people who actually drafted the Fourteenth Amendment. Howard said:

To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. (Emphasis added.)

Stephen Halbrook, a lawyer and historian who has written a book titled Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, has extensively reviewed the debate in the U.S. Congress over extending the right to bear arms to the newly-freed slaves after the Civil War. He concludes: "The framers of that amendment understood from hard experience that the rights to personal security and personal liberty are inseparable from the rights to self defense and to keep and bear arms."

The Fourteenth Amendment was enacted largely to overrule the Supreme Court's infamous Dred Scott v. Sandford (1856) case, which said that if the "large slaveholding states regarded (blacks) as included in the word citizens," then they would be granted rights including the ability to travel freely, the right to speak freely, and "to keep and carry arms wherever they went." ...

NRA will score Sotomayor vote

So reports Jennifer Rubin in Commentary Magazine:

As I noted in the last round of questioning of Sonia Sotomayor yesterday, Republican senators seemed increasingly focused on the Second Amendment. Sotomayor’s evasiveness did not help her cause. Shortly after her questioning ended, the NRA announced it would officially oppose her confirmation. Some question then arose in conservative circles as to whether the vote would be “scored” — that is, count for the score which the NRA uses to rate incumbents on Second Amendment issues. In a close race it can make the difference, particularly in a Red state. I contacted the NRA last night. A spokesman promptly replied by email: “It’s an important vote and it will count.”

What does that mean in practical terms? It may influence a shaky Republican or two who might think twice about “deferring” to the president’s nominee. But the real impact is not with regard to Sotomayor, but in the 2010 senate races. For each Democrat who votes for her, there will be at least a small price — a ding from the NRA. Might it be significant in races in Arkansas (Blanche Lincoln), Colorado (Michael Bennet), North Dakota (Byron Dorgan), and elsewhere? ...

This is a positive step. NRA ratings are an important data point for voters in gun-friendly districts, and politicians hoping to get reelected know this. It probably won't change the final outcome given the large Democrat majority in the Senate, but may at least cause a few of those Dems (and some faux Republicans) to vote against her.

Sotomayor: No constituional right to self-defense?

From the Los Angeles Times:

In a prickly exchange over gun control, Sen. Tom Coburn tried hard to get Sonia Sotomayor to explain what she actually thinks about the right to bear arms. “As a citizen of this country do you believe ... I have a right to personal self-defense?” he asked her.

Sotomayor said she couldn’t think of a Supreme Court case that had addressed the issue in that language. “Is there a constitutional right to self-defense?” she asked. “ I can’t think of one. I could be wrong.”

The Oklahoma Republican said he didn’t want to know if there was a legal precedent that would answer his question -- he wanted to know Sotomayor’s personal opinion.

She paused. “That is sort of an abstract question,” she said. “I don’t --"

“Well that’s what the American people want to hear,” Coburn said. Americans don’t want legalese from “bright legal minds,” he said. “They want to know if they can defend themselves in their homes.” ...

Article here.

National Review's Jim Geraghty weighs in on the Sotomayor credibility gap:

But if you were a Republican senator, and wanted to vote in good faith to confirm Sotomayor, you would have to believe:

· That her “wise Latina” argument was just a bad “rhetorical flourish” that accidently left listeners believing she disagreed with Justice Sandra Day O’Connor, when she actually agreed with her.

· That the misperception of the “wise Latina” argument remained uncorrected through six separate uses of it.

· That Sotomayor genuinely has “no idea” why George Pavia, a senior partner in the law firm that hired her as a corporate litigator, would say, “I can guarantee she’ll be for abortion rights.”

· That she did not read the legal briefs filed by the Puerto Rican Legal Defense and Education Fund while she was on that organization’s board.

· That she genuinely does not have an opinion on whether citizens have a right to self-defense, and could not think of “a case where the Supreme Court has addressed that particular question,” despite the fact that the Heller case decided last year declared, “The inherent right of self-defense has been central to the Second Amendment right.”

· That she “actually agrees” with Justices Scalia and Thomas that judges have to be “very cautious” about using foreign law, despite a speech earlier this year in which she said, “Suggest[ing] to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding.”

· That she really believes that “we don’t make policy choices in the court,” even though she said in a 2005 appearance at Duke University that the “Court of Appeals is where policy is made.”

· That she genuinely believes that “the process of judging is a process of keeping an open mind,” when she said in a 1999 speech that there is “no objective stance but only a series of perspectives. . . . Aspiration to impartiality is just that, an aspiration.”

· That she thinks the man who nominated her has a fundamentally flawed perspective on the role of judges, and that she will not “approach the issue of judging in the way the president does.”

That’s a lot to swallow. Essentially, the poised and affable judge who appeared before the cameras this week came across as almost completely unobjectionable — almost a photo negative of the judge portrayed in Sotomayor’s past speeches. “We’re left guessing as to what kind of judge she would be,” Sen. John Cornyn (R., Texas) said during a committee break. “We don’t know if we’re going to get Sonia Sotomayor the speech-giver or Sonia Sotomayor the judge. Once she’s on the Supreme Court, she can say anything she wants with no chance of reversal. The lack of clarity is creating some problems.” ...

Actions speak louder than words; don't listen to what a nominee says, look at what they've done. This is especially true for politicians.

Senator minority leader Mitch McConnell says he will oppose Sotomayor nomination.

Finally, David Codrea has a roundup of Gun Rights Examiner articles on the Sotomayor nomination here.