Posted by Eugene Volokh:
Pretty Serious Errors in CNSNews.Com Story About Judge Sotomayor and the Second
Amendment:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244004883
The story is at [1]CNSNews.com, and it begins:
Supreme Court nominee Sonia Sotomayor ruled in January 2009 that
states do not have to obey the Second Amendment�s commandment that
the right to keep and bear arms shall not be infringed.
Now it might have been more informative to say that she was one of the
three judges on the panel; but let's set that aside, and focus instead
on the following:
The meaning of the Second Amendment has rarely been addressed by
the Supreme Court. But in the 2008 case of Heller v. District of
Columbia, the high court said that the right to keep and bear arms
was a natural right of all Americans and that the Second Amendment
guaranteed that right to everyone.
The Second Amendment, the Supreme Court ruled, �guarantee(s) the
right of the individual to possess and carry weapons in case of
confrontation. The very text of the Second Amendment implicitly
recognizes the pre-existence of the right and declares only that it
�shall not be infringed.��
�There seems to us no doubt,� the Supreme Court said, �that the
Second Amendment conferred an individual right to keep and bear
arms.�
Sotomayor, however, said that even though the Heller decision held
that the right to keep and bear arms was a natural right -- and
therefore could not be justly denied to a law-abiding citizen by
any government, federal, state or local -- the Second Circuit was
still bound by the 1886 case, because Heller only dealt indirectly
with the issue before her court.
I don't think that's quite fair. The "and therefore" phrase sounds
pretty clearly like part of the assertion about what "the Heller
decision held." But that's not what Heller held at all: [2]Heller
specifically said that it was holding nothing about the application of
the Second Amendment (via the Fourteenth Amendment) to state and local
governments. (Footnote 23 of Heller: "With respect to Cruikshank�s
continuing validity on incorporation, a question not presented by this
case ....") Let's go on:
�And to the extent that Heller might be read to question the
continuing validity of this principle, we must follow Presser
because where, as here, a Supreme Court precedent has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow
the case which [it] directly controls.�
In its 2008 case, the Supreme Court�s took a different view of its
own 1886 case, saying that Presser had no bearing on anything
beyond a state�s ability to outlaw private militia groups.
�Presser said nothing about the Second Amendment�s meaning or
scope, beyond the fact that it does not prevent the prohibition of
private paramilitary organizations,� the court ruled. �This does
not refute the individual-rights interpretation of the Amendment.�
But aggain that's not right: Heller explicitly said (in the same
footnote 23 I mentioned above) that "Our later decisions in Presser v.
Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S.
535, 538 (1894), reaffirmed that the Second Amendment applies only to
the Federal Government." Presser, in the Court's view, did have some
bearing on something beyond a state's ability to outlaw private
militia groups -- in fact, it had bearing on the very question of
whether the right to bear arms applied to the states. Moving on:
The Second Amendment is the only part of the Bill of Rights that
the Supreme Court has not specifically extended to the states
through a process known as incorporation, which involves
interpreting the Fourteenth Amendment to read that no state can
deprive its citizens of federally guaranteed rights.
Actually, the Supreme Court has expressly held that the Seventh
Amendment right to civil jury trial doesn't apply to the states, and
that neither does the Grand Jury Clause of the Fifth Amendment. Unless
I'm mistaken, the Excessive Bail and Excessive Fines Clauses of the
Eighth Amendment haven't been incorporated, either, though their not
being incorporated isn't as well-settled as it is for the Seventh
Amendment or the Grand Jury Clause. Moving on again:
The Fourteenth Amendment reads, in part: �No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States �� nor deny to any person within its
jurisdiction the equal protection of the laws.�
Here the story omits precisely that constitutional clause (the Due
Process Clause) that the Court has indeed used to incorporate most of
the Bill of Rights against the states. Moving on again:
Sotomayor�s ruling ran to the left of even the reliably liberal San
Francisco-based U.S. Court of Appeals for the Ninth Circuit, which
ruled in the April 2009 case Nordyke v. King that the Second
Amendment did, in fact, apply to the states via the Fourteenth
Amendment, heavily citing the Supreme Court in Heller.
Surely the Ninth Circuit is not reliably liberal; it has plenty of
conservative judges, who get their way often enough. (The CNSNews
story came out before the conservative panel on the Seventh Circuit
ruled against incorporation.)
One can certainly criticize the Maloney opinion, as well as the
Seventh Circuit opinion, which I [3]in some measure criticized earlier
today. One can certainly argue that the incorporation of the Second
Amendment via the Due Process Clause isn't foreclosed to lower courts,
because past Supreme Court decisions rejecting incorporation focused
on the Privileges or Immunities Clause. But that's a pretty subtle
argument, and if made would show at most that the Maloney opinion was
pretty subtly wrong. The CNSNews story avoids the subtlety, and seems
to assert that the Maloney opinion was patently and blatantly wrong.
But in doing so, it seems to me, the story itself errs, several times
and in pretty big ways.
References
1. http://www.cnsnews.com/public/content/article.aspx?RsrcID=48718
2. http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf
3. http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243963229
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