Call to Decision

If you thought the Bill of Rights gives you constitutional protection for freedom of speech, of religion and a free press; you are wrong according to Obama Supreme Court nominee Judge Sonia Sotomayor. The likely newest member of the high Court decided that all these rights guaranteed by the first Ten Amendments which make up the Bill of Rights can now all be taken away from us at the whim of our state legislatures - who would have imagined.

Sotomayor has been criticized for racist statements and a belief that courts set “policy” not just issue decisions based on the law, and it has been noted that she meets the Obama intention of appointing a Supreme Court judge with “empathy,” but her credentials as judge have been accepted without question – this is a big mistake.

Sotomayor was on a panel of the Court of Appeals for the 2^nd Circuit which issued an unsigned opinion dismissing a challenge to a New York law that banned a martial arts weapon despite the earlier Supreme Court ruling in Heller v District of Columbia which struck down a ban on handguns and said individuals have the right to keep arms at home for self defense.

But the panel on which Sotomayor served said in the case of Maloney v. Cuomo that it was clear from the Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said the Supreme Court has "the prerogative of overruling its own decisions."

The issue raises the question of whether the Bill of Rights applies to state and local governments. Lawyers challenging gun restrictions and legal scholars contend that they do, through the due-process clause of the 14th Amendment. And that was the finding of the U.S. Court of Appeals for the 9th Circuit earlier this year. The Supreme Court's 5 to 4 decision last year in the Heller case decided for the first time that the Second Amendment provided an individual right to bear arms.

If the 2^nd can be said to not apply to the states and local governments, then why should the other rights spelled out in the Bill of Rights apply?

A recent decision of the Seventh U.S. Circuit Court of Appeals reached the Sotomayor conclusion in a unanimous ruling rejecting a challenge to a tough Chicago handgun law. Her supporters say the similar opinion by the 7^th Circuit somehow makes the nominee immune to criticism on this issue but no one explains why the Sotomayor view of the 2^nd Amendment can be distinguished from the other initial eight Amendments that include the First Amendment that provides freedom of religion, freedom of speech and the press and the right of peaceful assembly. In fact, the First Amendment specifically says “Congress shall make no law ….” if the first ten Amendments are not applicable to the states than according to Sotomayor each state may establish their own limitations on these basic rights. As my mother used to say, “two wrongs don't make a right.”

In my view our constitutional rights hang in the balance with the appointment Sotomayor to the Supreme Court. A powerful revolution expanding government authority is underway with Obama's election as President, and the Democrats about to obtain a 60-seat majority in the U.S. Senate. But an adverse Supreme Court can stop and undo a lot of that but appointing judges like Sotomayor will prevent even this small possibility.

David Souter was a surprise to the Republicans who appointed him and worked for his confirmation. His vote made a difference on the side of many important issues in many Supreme Court decisions. Justice Anthony Kennedy cannot be relied upon; adding another judicial activist to the Supreme Court will take the country still further away from the one created by our founders.

We cannot afford or risk an even worse appointment than Souter who seems to believe her opinion caries more weight than a white person and that the court makes policy, not just applies the law - a Justice who seems to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

Vincent Gioia is a retired patent attorney living in Palm Desert, California. His articles may be read at http://www.vincentgioia.com/ and he may be contacted at gioia@gte.net

Sotomayor has decided that the Bill of Rights does not apply to the states