CNN's Toobin: 'Preposterous' to Believe in 2nd Amend. Right Back at Harvard

During CNN’s coverage of the Sotomayor hearings on Wednesday, legal analyst Jeffrey Toobin implied that the Supreme Court’s 2008 decision to uphold the Second Amendment was revolutionary: “When I was in law school...the idea that you had a Second Amendment right to a gun was considered preposterous....But the Supreme Court [in Heller]...said that...individuals have a personal right to bear arms.”

Just after the bottom of the 12 noon hour of the network’s coverage, anchor Wolf Blitzer raised the Second Amendment issue with Toobin, a graduate of Harvard Law School, and the others on their panel analyzing the hearings, which included anchor/correspondent John King; senior political analyst Gloria Borger; and correspondent Candy Crowley, as well as Republican strategist Alex Castellanos and former Clinton administration official Maria Echaveste. After playing a clip of Republican Senator Tom Coburn asking Sotomayor about the right to keep and bear arms, Blitzer asked Toobin what were the  nominee’s “positions, specifically on the federal obligation to support the Second Amendment, as opposed to local communities or states?”

The CNN senior legal analyst harkened back to his law school days in his answer, and possibly revealed a bit of his formation as a liberal:

TOOBIN: You know, it’s funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing- that is just the law that is changed. But if you look at the Second Amendment, that’s something that’s changed dramatically over the last- for 50 years, including when I was in law school, which was more recently than 50 years ago- the idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it- we have it in our system- you know, speaks of a well-regulated militia and the right to bear arms.

Well, courts used to say, well, this only affects the rights of state militias. But the Supreme Court, two years ago, in the famous Heller decision, said that when it comes to the federal government, we- individuals have a personal right to bear arms, and the D.C. gun control law was thus unconstitutional. And the question that came before Judge Sotomayor in the Second Circuit was, what about states? Do individuals have a right against states- state law to a personal right to bear arms? And she said, according to her reading of the precedents, is that that’s not decided yet, that it only applies to the federal government. Now, it’s up to the Supreme Court to make that decision.

Now, as CNN’s senior legal analyst, one would think that Toobin would be familiar with the courts’ precedents concerning the Second Amendment. It’s a misrepresentation to say, “[the] courts used to say, well, this only affects the rights of state militias.” Before the Heller decision, the Supreme Court only looked at this specific amendment three times before- twice during the second half of the 1800s, and once in the late 1930s. The Court ruled in the first two cases (United States v. Cruikshank in 1875, and Presser v. Illinois in 1886) that the Second Amendment only applied to the federal government, and not against the individual states. In the Presser decision, the Court upheld an Illinois regulation of armed organizations: “We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.” In other words, an individual state could regulate militia-like assemblies within their borders, but not the individual right to keep and bear arms. So the analyst’s Harvard-tinged analysis is incorrect at the Supreme Court level.

Over an hour earlier, Toobin revisited his “moderate liberal” labeling of Sotomayor from May, rephrased it a bit, and went so far to extend the label to two of the current left-of-center justices on the Supreme Court:

TOOBIN: You mentioned the surprise that some presidents get in their Supreme Court nominees. That’s actually much more the exception than the rule. Most justices turn out to be just what’s advertised. Look at the last five on the court: Alito, Roberts, Breyer, Ginsburg, Thomas- all exactly as predicted. Souter, somewhat more liberal, although he was always known as a moderate up in New Hampshire. She [Sotomayor] is a centrist Democrat, likely to be a Democrat on the bench- you know...voting with Breyer and Ginsburg most of the time. I don’t think there are going to be a lot of surprises.

BLITZER: Did Sandra Day O’Connor become a surprise?

TOOBIN: You know, she had such a limited record, and- and she was, I think, a centrist conservative, and I think-

BLITZER: What about Anthony Kennedy?

TOOBIN: Anthony Kennedy- pretty much as advertised, I think.