Sotomayor, Civil Rights and Guns

The right to bear arms is one civil right that must apply to the states. This week the Senate Judiciary Committee has an obligation to find out where Judge Sotomayor truly stands on this right. 

Over the next two weeks, one of the critical issues will be your civil rights on guns. Senators could benefit from context to understand the importance of this civil right to protect families, especially racial minorities. Given Judge Sotomayor’s long record, her confirmation must be more than “transparent,” it must be penetrating and the Senators must dig deep.

When slavery ended in America after the Civil War, no civil right was more important for black Americans than the right to keep and bear arms. We passed an amendment to the Constitution to make that possible.

Now the Supreme Court will decide this issue. And Sonia Sotomayor has already come down against this civil right, relying on a discredited precedent from a dark chapter in our nation’s past.

The next big gun-rights case to go to the Supreme Court will be whether the right to bear arms applies to the states. When the Bill of Rights (including the Second Amendment) was ratified in 1791, it only applied to federal laws and the federal government.

But after the Civil War, Congress and the states passed the Fourteenth Amendment, empowering all Americans with those fundamental rights in the Constitution that had protected them against federal oppression. For example, most people know that the First Amendment rights of free speech, religious freedom and peaceful assembly are rights they have against their states. This is true only because of the Fourteenth Amendment.

History makes clear that our post-Civil War leaders considered no civil right more important in 1868, when they ratified the Fourteenth Amendment, than the Second Amendment right to keep and bear arms.

In the Southern slave states, it had become illegal for blacks — whether slave or free — to own firearms. Under the “Black Codes,” people of color were defenseless against racial violence.

And the Congress that proposed the Fourteenth Amendment knew that this was the greatest need of black Americans. They needed to be able to protect themselves against criminals. But more than that, they needed to protect themselves against their state or local governments, which rarely protected them and were often the source of deadly danger facing these former slave families.

In Congress, as they crafted the Fourteenth Amendment, they referred over and over again to the right to bear arms for defending yourself and your family as an essential right of American citizens, which every American needed to be able to assert against his state or city. Many of their lives depended on it.

But shortly after the Fourteenth Amendment was passed, the Supreme Court held that the Second Amendment did not apply to the states, and did so twice again just a few years later. Judge Sotomayor relied on one of these cases when she said that people have no gun rights when it comes to state or city laws. Her supporters laud this opinion, saying that it proves she upholds precedent.

But not all precedents should be upheld. The cases that Judge Sotomayor relied on also state that our revered First Amendment doesn’t apply to the states, either. Thankfully, the Supreme Court has long since rejected that idea. None of Judge Sotomayor’s boosters seem willing to discuss the fact that these precedents she relied on denied free speech and religious liberty against cities and states.

Those precedents also came down during the same time as another infamous decision, Plessy v. Ferguson, which created the standard of “separate but equal” among the races. This terrible decision was precedent in our country for half a century, until the Supreme Court overruled it in Brown v. Board of Education. — Clearly, sometimes precedent must be overruled.

Specifically, precedent should be overruled when doing so fulfills the original intentions of the Founding Fathers to make people free, as those intentions are found in the Constitution’s text.

The Second Amendment deserves to be on equal footing with the First Amendment. The precedent Sonia Sotomayor followed stated that neither of these amendments applied to the states. Even if she were bound to follow it, she should have noted these facts and recommended that the Supreme Court overrule it. She did no such thing.

The right to bear arms is one civil right that must apply to the states. This week the Senate Judiciary Committee has an obligation to find out where Judge Sotomayor truly stands on this right.

Ken Blackwell is a senior fellow with the Family Research Council and the American Civil Rights Union.

Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.