Perhaps unintentionally, the written followup questions from Sen. Jeff Sessions (R-Ala.) to Supreme Court nominee Sonia Sotomayor make a strong case that consideration of foreign law in the debate over the Second Amendment would doom Republican efforts to read a “fundamental right” to gun ownership into the Constitution.
As Sessions pointed out in his question:
Many countries around the world … including some of our closest allies, take a far different view from our own country’s regarding gun ownership. Great Britain has almost a total ban on the ownership of firearms, Germany has some of the most restrictive firearms ownership laws in Europe, and in Australia, self defense is not considered a legitimate purpose for owning a gun.
What’s more, he wrote:
On October 31, 2008, members of the United Nations General Assembly passed a resolution supporting the negotiation of a global treaty on the gun trade. The United States was one of only two countries that voted against the resolution.
Sessions went on to ask Sotomayor if she would consider foreign law as a Supreme Court justice deciding whether the Second Amendment guarantees the right to gun ownership in the United States, suggesting, of course, that such consideration would be heresy. (“Isn’t foreign law then simply a vehicle by which judges indulge their own policy preferences?” Session asked.)
Sotomayor was characteristically careful in her response, noting that because “cases raising Second Amendment questions are currently pending before the Court, I would not comment on how I would decide those cases if I am confirmed.”
She did say, however, that while she wouldn’t rely on decisions of foreign courts as controlling precedent, in “some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas.”
So now we know why Sessions, Sen. Tom Coburn (R-Okla.) and many other Republicans were so adamant that Sotomayor not “use” foreign law. Not only did it recently help ban the execution of juvenile delinquents, but it could assist the court in denying them their coveted fundamental right to assault weapons as well.
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