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.
—Matthew Balan is a news analyst at the Media Research Center.
Editor at Large
Comments Policy
Toobin needs to stick to
July 15, 2009 - 18:42 ET by ConservativeRexToobin needs to stick to making wrong predictions.
How anyone above a two digit IQ could believe anything this jokers states is beyond me. Toobin, let's revisit how you staked your reputaion on the SCOFLA being correct in 2000, 'nuff said.
Ouch...!
July 15, 2009 - 18:53 ET by supercon"Toobin, let's revisit how you staked your reputaion on the SCOFLA being correct in 2000, 'nuff said."
Why does CNN always pick the biggest weenie they can find to give opinions on conservative issues...? This nations history is filled with private gun ownership and for him to make such a ridiculous statement is a real embarrassment for that network.
I wanna' give that guy a wedgie.
"Hey Janet Napolitano...I'm proud to be a Right-winger.
Constitution 1 Harvard Faculty 0
July 15, 2009 - 19:49 ET by allanfGee Jeff, I guess the Harvard faculty was wrong. Didn't William Buckley once remark that had rather be governed byt he first 50 names in the Boston phone book than the Harvard faculty. Sorry you got such bad information in law school.\
Didn't Toobin also predict that the Supreme Court would allow law schools to ban military recruiters on free speech grounds. The law schools lost 8-0 in Rumsfeld v FAIR
Doesn't lot depend on
July 15, 2009 - 18:44 ET by 10ksnookerWhether you see yourself as one of them, or one of those. Isn't that how it's always been? Who were those undesireables that Buzzy was talking about?
Ducks -0- hah
Hmmm...
July 15, 2009 - 18:49 ET by Legacy76Thats real funny, Jeff. I'm in law school right now and the prevailing thought is that the Second Amendment right to a gun is not preposterous. However, I'm not at Harvard. I think Harvard-ites must have different laws or something.
Harvard Law
July 15, 2009 - 21:41 ET by nadadhimmiHarvard Law School's position is simply this: Shut the f*ck up you peons, and do what we, the superior ones, the elite, TELL you to do!!!!!!!!!!!!!!!!!!!! This Country is rapidly devolving into $hit, and it will require guns to defend yourself from the likes of Soetoro, Toobin, Pelosi, Dodd, Reid, et al. You will find lawyers bleed quite nicely.
Toobin Is A Tool
July 15, 2009 - 18:51 ET by rammingspeedThe intent of the Bill Of Rights is to spell out more explicitly the rights of the individual. They are listed in order of importance. You know, the right to speak, and then the right to defend yourself, and so on. We don't just have the right to assemble to express our displeasure at the government. No, no, no - we have the right as indivduals to speak, and that right expands out to groups. The same with defending yourself. It starts with the individual (self-defense against deadly attack) and then spreads out to the police, and the military, and so on.
How special is it that Harvard Law has raised up little law analysts who are stupid, ignorant, a**holes?
Bill of Rights DOES NOT list the rights of Americans
July 15, 2009 - 19:44 ET by Kingfish17There was some debate, when the Constitution was finalized, as to whether or not the ten ammendments, or the Bill of Rights, should have been included. The reason some Constitutional Scholars did not want to include these ten amendments, is because of the very thing you have stated above. They were afraid that the people would eventually believe that the Bill of Rights spelled out the rights of the people, and that people would eventually lose sight of the fact that everyone had all sorts of rights, too numerous to list, and that these rights were God given, and not spelled out by man.
If you study the Bill of Rights, you will see that these ammendments are actually restrictive in nature, and spell out what the Federal Government, (and State and Local Governments), cannot do.
1. Congress shall make no law (respecting freedom of speech etc.)
2. (right to bear arms) shall not be infringed.
4. (property rights) shall not be violated, (etc.)
Read the Bill of Rights and you will see that these God given rights are allready assumed, as are many others, as inferred to in the 9th and 10th ammendments.
It is my belief that the writers of the Bill of Rights felt that it was important to spell out to the States, and future members of Congress, (ie, John McCain and his anti-First Ammendment Campaign Finance Reform Bill), that they better not mess with some absolutely essential God given rights, ie., Speech, Property, and the ability to protect yourself, (or your ability to overthrow the next monarchy/dictatorship when and if that ever happened).
I hope I'm not nit-picking your argument, rammingspeed, but I think it's an important distinction that has become lost.
"I've sentenced boys younger then you to the gas chamber. Didn't want to do it, but I felt I owed it to them." Judge Smails
→ Bill Of Rights
July 15, 2009 - 19:49 ET by Cool ArrowMore importantly, the Bill Of Rights spells out the things Congress specifically cannot do.
Of course we've let too many of our protections slide.
rs & Kf You both laid it
July 15, 2009 - 19:49 ET by bigtimerrs & Kf
You both laid it out perfectly...you said it all.
The left hope we forget all this as they do their best to change it all.
Doubling down on stupid is not a particularly good idea. ~Andrew Breitbart
Bill of Rights
July 15, 2009 - 20:16 ET by evilcontractorThe Bill of Rights did exactly what Madison feared it would do. That is the weanies in gov't would assume all power not expressly forbidden. The original intent was to limit the power of gov't to exactly what was expressly granted. This makes it very easy for liberals, who we all know are so much smarter than the rest of us, to tell us how we can live our lives. However beautiful the strategy, you should occasionally look at the results. Winston Churchill
www.btreasures.com
Limits on government
July 15, 2009 - 20:24 ET by SnappyLimits on government against infringment of "God given" or natural inherent rights. Was always my understanding of what the Bill of Rights was intended for.
But Im not a Harvard grad so what do I know.
Idiot
July 15, 2009 - 18:53 ET by Joe CamelOnly those from H A V A R D are enlightened it seems, or anyone from an I V Y league school. Seems like the rest of us just are not capable of rational thought. Elitism at it's peak..
you can always find a
July 15, 2009 - 19:12 ET by Edhenryyou can always find a wedgie candidate in any school to tow liberal line, especially for $$$
I went to a different law school and we did not see it as "preposterous", we saw it as likely (because why else would you put this 2nd in the list of the Bill of Rights for individuals!), but not clearly settled by SCOTUS . Then again we had a Harvard professor who thought the Constitution was a "living" document.
If you haven't been to graduate school, don't go. They are worse than you fear or imagine.
2nd Amendment
July 15, 2009 - 19:17 ET by LEWIS IN COLORADOAny true Constitutional scholar knows that the definition of militia, at the time of the writing of the Constitution, was the people. And if the 2nd amendment does not apply to the people then neither does the First, etc. What a bunch of bull and selective thought.
What a militia is
July 15, 2009 - 23:32 ET by KC MulvilleThe Founders, especially John Adams, didn't want a standing army. But knowing that some military force was necessary, they referred to their experience from the Revolution. Specifically, their soldiers were citizen soldiers who assembled when needed. After all, the early Revolution was fought by the Minutemen, who literally dropped what they were doing, grabbed their muskets and rifles, and ran off to fight. And that rag-tag group defied the greatest army in the world.
So, consider the Militia Act of 1792. It was the responsibility of the members of the militia to provide their own arms (as well as other items). Passed by Congress, signed by G. Washington.
If you want to know how the Founders viewed militias, and therefore how to interpret the original meaning of the Second Amendment, know that Congress and Washington expected militia members to come with their own arms. Logically, then, they had to have them in the first place. The Militia Act specifically expected soldiers to arrive with their own weapons.
If Toobin was correct, the laws of the time would have said that when the soldiers showed up for service, the government would issue weapons. And there would have been provision for the soldiers to return the weapons when released from service. (After all, some folks would show up just to receive free weapons.) But no such provisions were there. Instead, they avoided those headaches by requiring soldiers to bring their own.
That's why the Second Amendment can only be understood to demand that the right to own weapons must belong to individuals; a militia wouldn't work if the right was generalized.
prelude to Second Amendment
July 16, 2009 - 10:57 ET by AgnosticHere is where I believe the roots of the Second Amendment are planted:
The Declaration of Independence
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
Without an armed population or the legitimate threat of popular revolt then the needs of the people will fall on a government with deaf ears and sight directed toward power.
A person may be won over with logic and reason but the masses must be bought with spectacle and platitudes. - 2008 Elections
I wonder
July 15, 2009 - 19:23 ET by ParagrouperHow much money was wasted on that Ivy league education.
"If everyone is thinking alike, someone isn't thinking." - General George Patton Jr
Pg... All of
July 15, 2009 - 19:26 ET by bigtimerPg...
All of it.
Doubling down on stupid is not a particularly good idea. ~Andrew Breitbart
One only has to look back at
July 15, 2009 - 19:59 ET by cajunkingkongOne only has to look back at the writings of the founding fathers to determine what they meant in the 2nd amendment. They universally agree that it is not only the right of an individual to bear arms, but a duty to do so. For example:
"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason
Co-author of the Second Amendment
during Virginia's Convention to Ratify the Constitution, 1788
and
"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; …"
Samuel Adams
quoted in the Philadelphia Independent Gazetteer, August 20, 1789, "Propositions submitted to the Convention of this State"
and
"The constitutions of most of our States assert that all power is inherent in the people; that … it is their right and duty to be at all times armed; … "
Thomas Jefferson
letter to Justice John Cartwright, June 5, 1824. ME 16:45.
and
"The best we can help for concerning the people at large is that they be properly armed."
Alexander Hamilton
The Federalist Papers at 184-8
One has to be plainly and intentionally ignorant not to believe the second amendment guaranties each of us the right to bear arms.
Very good CKK
July 15, 2009 - 20:27 ET by general companyQuotes such as these need to be taught in our schools, but liberals would consider it "hatespeech"
So how are the Crawfish in Texas?
My Gov. thinks I am dangerous, so be careful
"Television is a freak show" Bernie Goldberg
I "second" that :-)
July 15, 2009 - 21:14 ET by armedcitizenGovernment's fear of armed citizens is just ooozing through the MSM.
ΜΟΛΩΝ ΛΑΒΕ
healthy fear
July 15, 2009 - 22:44 ET by cdm1972"When the people fear their government, there is tyranny; when the government fears the people, there is liberty."
-Thomas Jefferson
Our country was founded by much wiser men than whom lead today.
cdm... Hear!...Hear! Dou
July 15, 2009 - 22:45 ET by bigtimercdm...
Hear!...Hear!
Doubling down on stupid is not a particularly good idea. ~Andrew Breitbart
Thomas Jefferson, I think,
July 16, 2009 - 20:37 ET by Pete WilsonThomas Jefferson, I think, also said: "Those who would beat their firearms into plowshares will plow for those who did not." or words to that effect...
Perhaps Mr. Toobin has not read as much history as he would have us believe.
Totally Betrayed by the SCOTUS, huh?....
July 15, 2009 - 20:07 ET by RightsBelieverMaybe you're not betrayed but you're totally clueless?..Rights?..what are those?..
Return your degree, you lost your money, dude.
Nobody says nothing better than Obama.
Uh-oh, look who is angling to be the next SCOTUS nominee.
July 15, 2009 - 20:11 ET by needle- Relying upon the MSM for your information is like relying upon an embezzler to manage your portfolio.
needle... Oh no...don't
July 15, 2009 - 20:16 ET by bigtimerneedle...
Oh no...don't say that...he's even dumber than Soto...let alone mind-numbing.
Doubling down on stupid is not a particularly good idea. ~Andrew Breitbart
Are you kidding me
July 15, 2009 - 20:19 ET by general companythe 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.
cnn has this moron on as an authority on law and he cant even recite the 2nd Amendment? No wonder why he doesnt know what the heck he it talking about. If I were Harvard I would insist they didnt introduce him as a graduate
My Gov. thinks I am dangerous, so be careful
"Television is a freak show" Bernie Goldberg
A College is Terrible Thing to Waste
July 15, 2009 - 20:20 ET by evilcontractorThis is what happens when liberals are allowed to be in charge: Knowledge without wisdom.
However beautiful the strategy, you should occasionally look at the results. Sir Winston Churchill
www.btreasures.com
tired of liberal
July 15, 2009 - 20:51 ET by stunnedtired of liberal lies
"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." Harvard Law School idiocy on display.
All dictators from Stalin to Sadaam passed gun bans when they assumed power to control their populations, leaving their people defenseless in the face their brutality. That gun rights are even mentioned in the bill of rights saw that our founders understood that our right to defend ourselves from government oppresion was a fundamental right.
Guillotine, Firing Squad or Hanging
July 15, 2009 - 21:15 ET by Lord ErondEither way, the treasonous left has to go.
"Let him who would move the world, first move himself." -Socrates
"We sit together, the mountain and I, until only the mountain remains." -Li Po
maybe a reason for so much outsourcing......
July 15, 2009 - 21:30 ET by armedcitizen...based on the current high level of outsourcing
seen today in American business. Perhaps employers are seeing the
quality of American college graduates today and reacting accordingly.
ΜΟΛΩΝ ΛΑΒΕ
gotta hate when double posts happen!
July 15, 2009 - 21:33 ET by armedcitizen(no delete available, sorry!)
ΜΟΛΩΝ ΛΑΒΕ
Is there any doubt
July 15, 2009 - 21:34 ET by ThisnThatIs there any doubt remaining that the leftists are on a very aggressive campaign to reverse our Constitution? There's only one reason for people like this, and for institutions like Harvard, to make these types of declarations -- and that's to remove all protections built into our system of laws by our Founders. This has been a long campaign on their part -- but they are making a final push, because they think they finally have enough radicals in place in Congress, the courts, and the presidency right now to make these changes. Watch out everyone -- they are very close to succeeding.
___________________________________
An optimist thinks that the glass is 1/2 full; a pessimist 1/2 empty; a realist thinks the glass is twice a big as it needs to be
the irony
July 15, 2009 - 22:04 ET by hiltongroganthe irony of a "journalist" that looks like a rhinonceros named CANDY just slays me! Its proof the MSM doesn't hire ONLY biased ignorant pretty people..they hire ugly ones too.
Toobin
July 15, 2009 - 22:43 ET by well99Obama and Toobin. Good reasons not to send your kids to Harvard. The One doesn’t know how many states we have or that Austwitz was liberated by the Soviets not his uncle. Neither understands the constitutional rights of the American people.
Cars are dangerous, too.
July 16, 2009 - 01:12 ET by RR GOPCars are dangerous, too. Of course, with the coming of the Obamawagen they won't be anymore.
“When I was in law school...the idea that you had a Second Amendment right to a gun was considered preposterous...
That's pretty damn scary. I guess AKs in the hand of the People's Democratic Socialist Revolutionary Army Front Organization are quite OK.
Bombs...yes, I'm sure they said that bombs were the way to go. Has a nice anarchist, revolutionary feel to about them.
One of the 34% who thinks George W. Bush was a great President. One of the 61% who wants to bring back the stock and pillory (yep...approval for Congress now at 39%...do you believe that!?).
If the second amendement
July 16, 2009 - 04:18 ET by NonArabOmarIf the second amendement were interpreted as it was intended we have more than the right to own a gun. We're talking jets, tanks, missiles, etc. Any tool of war would be legal to own as those would be the necessary tools to reestablish a government in case of an attack, form militias in case of anarchy, etc, etc.
It's the "just in case all hell breaks loose" amendment.
Second amendment can be seen as the amendement that protects the right of any person to protect themselves in cases where the government can not or when it no longer exists in a certain area.
The military can't operate within U.S. borders, remember. That's why we have the National Guard. The national guard still takes time to deploy. During the LA riots local business owners formed their own armed civilian groups to protect their property when the LAPD couldn't and the National Guard was yet to be deployed.
It really makes me proud to
July 16, 2009 - 05:58 ET by SickofLibsIt really makes me proud to be a conservative when I look at all the above posts (by NON LAWYERS) that display a thorough knowledge and deep understanding of the Constitution, Bill of Rights and the intents of the founding fathers.
Contrast this with the total lack of knowledge and knee-jerk distortions of the fundamentals which is the hallmark of the average liberal.
I keep a copy of the
July 16, 2009 - 07:41 ET by ricklailI keep a copy of the Constitution in my desk drawer. Every time I read something like this I whip it out and read the words-words that any American should be able to understand.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Contrary to what Sotomayor says under the 14 Amendment the states do not have the right to control firearms.
Semper suprene nitens
North Carolina now has the worst government money can buy.
A perfect example...
July 16, 2009 - 08:36 ET by onewiseguy..of what is wrong with Law Schools and lawyers in general:
“When I was in law school...the idea that you had a Second Amendment right to a gun was considered preposterous...."
If that is truly the case then we can see why our legal system is so screwed up. The concept and wording of the 2nd Amendment is very clear and the recent Supreme Court decision was correct. For ANY attorney to claim otherwise shows him to be either a pompous fool or a disingenuous ignoramus.
I met a guy from Harvard,
July 16, 2009 - 08:55 ET by jessieHI met a guy from Harvard, once. He couldn't go outside when it was raining. His nose was so high he would have drowned.......
Toobad Toobin
July 16, 2009 - 09:08 ET by grumpyoldbHey... Get a copy of the constitution and the bill of rights, AND a DICTIONARY! Read it real slow and look up all the confusing words. It's not preposterous you moron, it's a Constitutionally Guaranteed RIGHT!
"Any government big enough to give you everything you need, is big enough to take away everything you have" - Thomas Jefferson
Typical of a Harvard Lawyer
July 16, 2009 - 10:28 ET by CobraMan"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."
Typical of a Harvard Lawyer, alter the content to alter the meaning. This idiot left out three important words: "of the People." That mean the People have a right to keep and bear arm, not the Militia. If the Amendment was meant to allow only the members of a Militia to have that right, it would have used the words "of the Militia to keep and bear arms". But that's not what it says, it's says "of the People to keep and bear arms." So, why does this Harvard Idiot think that the People having this right to keep and bear arms is so preposterous?
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
The US Constitution
Unless you're a fetus.
The US Supreme Court