The National Rifle Association, whose oft stated aim is to protect our Second Amendment rights, is missing in action in the confirmation battle over Sonia Sotomayor, the most anti-gun nominee that President Obama could have nominated to the Supreme Court. In the two cases to come before her on the Second Circuit (an unpublished opinion and the more recent Maloney v. Cuomo case), she made clear her “fundamental” view that unlike all of the other amendments contained in the Bill of Rights, the right to keep and bear arms “is clearly not a fundamental right” and a restrictive New York weapons law did not “interfere with a fundamental right. Even the infamously liberal Ninth Circuit disagreed with her.
In the Maloney case, Sotomayor’s ruling would allow the states to completely ban the possession of guns, a radical view that should scare the living daylights out of the NRA and its membership. After all, the Heller decision by the Supreme Court striking down the District of Columbia’s gun ban was decided by only one vote. In other words, the Court came within one vote of completely writing the Second Amendment out of the Constitution.
This matter is likely to come up before the Supreme Court in its very next term. The NRA is appealing the decision of the Seventh Circuit in NRA v. Chicago, a case over the City of Chicago’s restrictions on handguns. This case will decide whether the individual right to bear arms that the Supreme Court recognized in Heller as applying to the federal government in the District of Columbia also applies to the states through the incorporation doctrine of the Fourteenth Amendment. If this case is lost through a close vote on the Supreme Court, the constitutional gun rights of Americans will vanish in the foreseeable future – except in the District of Columbia.
The NRA exercises considerable influence in Washington. Even many Democrats (with the exception of Northeastern liberals) who normally disagree with Republicans on numerous issues support the Second Amendment and have proven so in many votes over the years. A good example of this is the vote in February over the District of Columbia bill that would give the district a voting representative in Congress. An amendment attached by Senator Ensign (R-NV) to protect the Second Amendment rights of district residents passed by a vote of 62 to 36, with 22 Democrats voting to approve the amendment. One of the most important reasons for the approval was the fact that the NRA made Congress aware that it was going to include the vote on that amendment in its annual scoring. There have also been two other pro-gun measures approved by the Senate recently – an amendment by Senator Roger Wicker (R-MS) to allow Amtrak passengers to carry guns in checked baggage and another amendment by Senator Tom Coburn (R-OK) to restore gun rights in national parks. Sixteen Democrats voted for all three amendments.
Fear of being scored as against guns in legislative votes by the National Rifle Association in its annual congressional rating is a key factor in the political considerations of many senators when they are deciding how to vote on gun bills. Yet aside from a few muddled statements, the NRA is sitting on the sidelines in the confirmation battle on Sotomayor, an anti-Second Amendment zealot. Prominently displayed on the NRA’s website is an announcement about its appeal of the Chicago case to the Supreme Court. But the only mention of Sotomayor’s nomination is a brief announcement that says the “NRA looks forward to a full and open review of Judge Sotomayor’s record on this issue.” Really?! What open review does the NRA want or need – her disdain for the Second Amendment could not be clearer.
This contrasts with the actions of the American Hunters & Shooters Association, a liberal organization founded in 2005 by Ray Schoenke, a former Democratic candidate for governor in Maryland. The AHSA masquerades as a gun rights organization and a counter to the NRA, even though Schoenke gave $5,000 to Handgun Control, Inc., a predecessor to the Brady Campaign to Prevent Gun Violence. AHSA endorsed Barack Obama last year and recently did the same for Sonia Sotomayor, saying that “gun owners have nothing to fear from Sotomayor.” There is no doubt that Patrick Leahy will wave this endorsement in front of other senators when Sotomayor’s nomination is being debated.
The only way that the NRA can counter this endorsement and have any effect on Sotomayor’s nomination is if it takes the one step that Democratic senators fear and respect – announcing that it will include the vote on her confirmation in its annual congressional scoring. Nothing could be more important to preserving gun rights than the NRA taking this action to prevent an anti-Second Amendment judge from gaining a seat on the Supreme Court. Yet the leadership of the NRA, particularly its political shop, does not want to do anything about this nomination because it fears the political consequences and the “damage” it might do to its relationship with the Administration and the majority party controlling Congress.
The NRA leadership has also shown an unwillingness to score votes they believe they will lose for fear that such a loss will make them appear weak. If they score the Sotomayor vote, they may not win now, but they are likely to shift some red state Democratic senators who otherwise have a free pass to vote for Sotomayor. Those who do vote for her would be forced to explain their weak NRA voting record to constituents at their next election, and so a temporary defeat could actually provide for a victory in the future by contributing to pro-gun pickups in the U.S. Senate.
Minority congressional staff in the Senate are privately complaining about the fact that the NRA is unwilling to take the steps necessary to fight this nomination. It is betraying its membership because it is afraid that it will lose the fight, as if that possibility means they should not even try. If the NRA only waged battles when it was sure of victory, there would not be any point to the organization. Its reluctance to act, in the same way that it refused to act against the nomination of the most anti-gun attorney general we have ever had, Eric Holder, should inflame its membership and inspire a revolt.
The members of the NRA should flood the Board of Directors and the officers of the organization with letters, emails, and telephone calls demanding that the NRA take action and come out loudly and vociferously against the nomination of Sonia Sotomayor. They should demand that the NRA announce very publicly that the vote on her confirmation will be included in its annual scoring of senators. If it remains MIA on this crucial vote, it will have lost its authority to speak for America’s gun owners. It will also have lost what should be its most important battle without ever having fired a shot. It will have forsaken its members most important interest – preserving their Second Amendment rights – to maintain its supposed “relationship” with an Administration that would act in a New York minute to banish our gun rights if it could get away with it, “relationship” be damned.