judge easterbrook wrote, that does not license inferior courts to go their own way.it just notes the older precedent is open to reexamination by the justices themselves when the time comes. that was your court's conclusion also, wasn't it? >> it was. and i understand having reviewed justice easterbrook's opinion that he agreed with the reasoning of maloney on that point. >> i want to return to the issue of basic authority, responsibility of the supreme court to decide the major cases on separation of power. there was a case whichle supreme court denied a couple of weeks ago involving claims for benefits brought by survivors of victims of september 11th against certain individuals in saudi arabia. this case caused a conflict. congress had legs lated under sovereign immunity in 1976 that claims like flying an airplane into the world trade center were an exception to sovereign immunity and the executive branch interposed objections to having that case decided because of the sensitivity of matters with saudi arabia. and the case involved circuit splits and a very, very i

judge easterbrook wrote, "that does not license the inferior courts to go their own way. it just notes that the older precedent is open to reexamination by the justices themselves when the time comes." that was your court's conclusion also, wasn't it? >> it was and i understand having reviewed justice easterbrook's opinion that he agreed with the reasoning of maloney on that point. >> i want to return to the issue of basic authority and responsibility of the supreme court to decide the major cases on separation of power. there was a case which the supreme court denied certiorari just a couple of weeks ago involving claims for damages brought by survivors of victims of september 11th against a certain individuals in saudi arabia and this case posed a classical conflict between executive and legislative responsibilities. congress had ledgislated under sovereign immunity in 1976 that tore claims like flying an airplane into the world trade center were an exception to sovereign immunity and the executive branch interposed objections to having that case decided because of the

judge easterbrook wrote that does not license and the inferior courts to go their own way, it just notes the older president is only open to a re-examination of the justices themselves on the time comes that was your court's conclusion also, wasn't it? >> it was and i understand having reviewed just as mr. brooks opinion that he agreed with the reasoning of maloney on that point. >> i want to return to the issue of the basic authority responsibility of the supreme court to decide the major cases on separation of power. there is a page which the supreme court denied just a couple of weeks ago non-bank involving claims for damages by survivors of victims of september 11th against certain individuals in saudi arabia and in this case post classical conflict between the executive and legislative responsibilities. congress legislated it under a sovereign immunity in 1976 that board claims like flying airplane at the world trade center were an exception to sovereign immunity. and the executive branch interposed objections to having that case decided because of the sensitivity of matters with sa

judge easterbrook wrote, that does not license inferior courts to go their own way. it just notes the older precedent is open to reexamination by the justices themselves when the time comes. that was your court's conclusion also, wasn't it? >> it was. and i understand having reviewed justice easterbrook's opinion that he agreed with the reasoning of maloney on that point. >> i want to return to the issue of basic authority, responsibility of the supreme court to decide the major cases on separation of power. there was a case whichle supreme court denied a couple of weeks ago involving claims for benefits brought by survivors of victims of september 11th against certain individuals in saudi arabia. this case caused a conflict. congress had legs lated under sovereign immunity in 1976 that claims like flying an airplane into the world trade center were an exception to sovereign immunity and the executive branch interposed objections to having that case decided because of the sensitivity of matters with saudi arabia. and the case involved circuit splits and a very, very

it was in judge easterbrook. eight was judge posner are, so the case in an identical way. and neither judge-- i have confused some statements that senator leahy made with this case and i apologize. in a very similar case, the sixth circuit approach the very same issue innate same way. so a variety of different judges on the appellate court were looking at the case in her light of the established supreme court and second circuit precedent and determined that the city facing potential liability under title title vii could choose not to certify the test if it believed an equally good test could be made with a different impact pawn affected groups. the supreme court, as it is its prerogative in looking at a challenging, established a new consideration or a different standard for the city to apply. and that is, was there substantial evidence that they would be held liable under the law? that was a new consideration. our panel didn't look at that issue that way because it was and argued to us in the case before us, and because the case before us was based on existing precedence.

you had two of the most prominent conservative jurists in the nation, richard posner and frank easterbrook saying look, this was decided in the 1880s. that's the issue so far. the key is not necessarily whether the second amendment is incorporated against the states but what second amendment right there is under heller. the second amendment right was narrow, extended to ownership of gun in the home for self-defense and the court made it clear it's subject to broad categories of restrictions. including ban on carrying concealed weapons outside the home. as long as that right is confined to narrow circumstances, clearly not absolute. i'm not sure there will be a great deal of practical significance even if the second amendment is extended to the states. >> shannon: i'll give you the final word. if we go to supreme court, two of the cases are on the way there, positioning for the justice to take the case. do thaw think they'll settle -- do you think they'll settle the question? the second almost teed up to make a resolution whether or not the state s as are subject o second amendment. >> i th

point, with two other judges, at least one other panel on the second circuit by justice -- judge easterbrookn an area, on a precise question, the supreme court as to what about, and under the deference one gives to the factors one considers in deciding that older precedents should be changed or not. that is what the supreme court will do. >> pre-existing rights that the constitution codified. >> fundamental rights have been incorporated to get the states, which must comply with them, so to the extent the court held that, they have been deemed fundamental. as that term is understood legally. >> unreasonable searches and seizures? >> as well. with respect to it relates to it. >> let me turn to your decision in maloney. this is the first decision to reach any federal court. in this case, the second amendment applies only to the federal government, not the states. this is after heller. am i right that you're authority was the supreme court's 1886 decision in pressler purses eleanor? >> that, plus a second precedent that had held that the abandoned had not gone out. -- pressler versus illinois. >

very similar case, the seventh circuit and an opinion -- i'm sorry, i misspoke, it wasn't just easterbrookw the case in identical way and neither judge, i confused some statements senator leahy made with this case, and i apologize. in a very similar case, the sixth circuit approached a very similar issue in the same way. so, a variety of different judges on the appellate court were looking at the case in light of the established supreme court and the second circuit precedent and determined that the city, facing potential liability under title seven, could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups. the supreme court as it is its peraugative and looking at a challenge established a new consideration or a different standard for the city to apply and that is, was there substantial evidence that they would be held libel under the law? that was a new consideration. our panel didn't look at that issue that way because it wasn't argued to us in the case before us and because the case before us was based on existing p

other judges, and at least one other or one other panel on the seventh circuit by justice, by judge easterbrook has agreed that once you have settled precedents in an area, then the supreme court has to look at that and under the deference one gives to stare decisis and the factor is one that considers in deciding whether that older precedents should be changed or not, that is what the supreme court should do. >> as i noted, the supreme court put the second amendment in the same category as the first and fourth amendments. presisting rights that the constitution merely codified. now, do you believe that the first amendment right, such as the right to free exercise of reledgen or freedom of the press are fundamental rights? >> those rights have been incorporated against the states. the states must comply with them. so, to the extent that the court has held that, then they have been deemed fundamental as that term is understood legally. >> what about the fourth amendment about unreasonable searches and seizures? >> as well. but with respect to the holding as it relates to that requirement. >> let

frank easterbrook and richard posner, they concluded that only the supreme court not appellate courts can overrule century old a supreme court precedents on whether the second amendment right to bear arms supplies to the states. i realize in the national rifle association of arson and allies alike that ruling, they have wanted judge sotomayor to do the ninth circuit did an overrule supreme court precedents. but in the milan case judge sotomayor did but an appellate court should do is to follow the law. this nomination is the third supreme court nomination and voted on in 12 and half years i've served in the senate. because the stakes are so high i believe supreme court nominees carry the burden of proof and then come before the senate. they must prove they are worthy of a lifetime of women to the highest court in the land. judge sotomayor has met and exceeded this burden. america will be well served when judge sotomayor becomes justice sonia sotomayor and i enthusiastically support her nomination. >> thank you, senator durbin. senator carmen. >> thank you mr. chairman peer in not i am

it wasn't judge easterbrook, they saw the case in an identical way.neither judges -- i confuse ad statement. i apology. in a similar case the sixth circuit approached a very similar issue in the same way. so a variety of different judges on the appellate court were looking at the case in light of established supreme kurt and second circuit precedence. and determined that the city facing potential liability under title seven could choose not to certify the tests. the supreme court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. and that is with their substantial evidence that they would be held liable under the law. that was a new consideration. our panel didn't look at that issue that way. it wasn't argued to us in the case before us. the case before us was based on existing precedence. it's a different test. >> judge, there was apparently unease within your panel. i was really disapointed and a lot of people have been that the opinion was so short. it did not discuss

>> there is one circuit, the seventh circuit, in a decision written by judge easterbrook, who came tothe same conclusion. >> did he say it was not a fundamental right, though, in that opinion? i don't believe they did. >> he may not have -- >> that was the question -- my question i was asking. so it's a problem for people. you ask about abortion. it's not explicitly referred to in the constitution, but you say that's a fundamental right. and we have in the constitution language that says the right of the people to keep and bear arms shall not be infringed, and there's a question about that, that it's not a fundamental right. i think that's what makes people worried about our courts and our legal system today and whether agendas are being promoted through the law rather than just strictly following what the law says. >> senator, may i -- >> yes. >> -- address my use of the word fundamental. fundamental is a legal term that i didn't make up. it was the supreme court's term. and it used it in the context and uses it in the context of whether particular constitutional provision binds the

in a very similar case on the seventh circuit in an opinion offered by judge easterbrook, i'm sorry.i misspoke. it was judge posner, saw the case in an identical way. in either judge, i'm confused some statements that senator leahy made with the case and i apologize. in a very similar case, the sixth circuit approached a very similar issue in the same line sell a variety of different judges on the appellate court looking at the case in light of established supreme court and second circuit precedent and determined that the city facing potential liability under title seven could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups. the supreme court as its tenth is his prerogative in looking at a challenge weinberg establish a new consideration and/or a different standard for the city to apply and that is was there substantial evidence that they would be held liable under the law. that was a new consideration. our panel didn't look to that issue that way because it was an argument to us in the case before us because

state of illinois which featured two of our most conservative icons on the federal bench, frank easterbrook and richard posner. they concluded that only the supreme court, not appellate courts, can overrule century-old supreme court precedents on whether the second amendment right to bear arms applies to the cities. i realize the national rifle association and senate allies don't like that ruling. they apparently wanted judge sotomayor to do what the ninth circuit did and overrule supreme court precedent but in the maloney case judge sotomayor did what an appellate court should do and she followed the law. the sotomayor nomination is the third supreme court nomination i voted on in 12 and a half years i've served in the senate because the stakes are so high i believe supreme court nominees carry the burden of proof when they come before the senate. they must prove they are worthy of a lifetime appointment to the highest court in the land. judge sotomayor has met and exceeded this burden. america will be well served when judge sotomayor becomes justice sotomayor and i enthusiastically suppor

state of illinois which featured two of our most conservative icons on the federal bench, frank easterbrook and richard posner. they concluded that only the supreme court, not appellate courts, can overrule century-old supreme court precedents on whether the second amendment right to bear arms applies to the cities. i realize the national rifle association and senate allies don't like that ruling. they apparently wanted judge sotomayor to do what the ninth circuit did and overrule supreme court precedent but in the maloney case judge sotomayor did what an appellate court should do and she followed the law. the sotomayor nomination is the third supreme court nomination i voted on in 12 and a half years i've served in the senate because the stakes are so high i believe supreme court nominees carry the burden of proof when they come before the senate. they must prove they are worthy of a lifetime appointment to the highest court in the land. judge sotomayor has met and exceeded this burden. america will be well served when judge sotomayor becomes justice sotomayor and i enthusiastically suppor

it wasn't judge easterbrook, they saw the case in an identical way.neither judges -- i confuse ad statement. i apology. in a similar case the sixth circuit approached a very similar issue in the same way. so a variety of different judges on the appellate court were looking at the case in light of established supreme kurt and second circuit precedence. and determined that the city facing potential liability under title seven could choose not to certify the tests. the supreme court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. and that is with their substantial evidence that they would be held liable under the law. that was a new consideration. our panel didn't look at that issue that way. it wasn't argued to us in the case before us. the case before us was based on existing precedence. it's a different test. >> judge, there was apparently unease within your panel. i was really disapointed and a lot of people have been that the opinion was so short. it did not discuss