Posted by Ilya Somin:
Nelson Lund on Sotomayor's Second Amendment Decision:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247512370
I had previously been inclined to think that, [1]Maloney v. Cuomo,
Judge Sotomayor's decision to reject incorporation of the Second
Amendment against the states in was not a big deal, because she was
bound by 19th century Supreme Court precedents. However, my colleague
Nelson Lund, a leading Second Amendment scholar, has a good column
that leads me to think there is more here than meets the eye:
Second Circuit Judge Sonia Sotomayor recently held that the
Constitution does not protect the right to keep and bear arms
against infringement by state and local governments. Her defenders
maintain that she was merely applying settled precedent, which only
the Supreme Court itself is authorized to reconsider. This is a
half truth that conceals more than it reveals.
Last year, the Supreme Court resolved a longstanding debate by
holding that the Second Amendment's right to keep and bear arms
includes the right of American citizens to have weapons for
personal self defense....
In several nineteenth century cases, the Supreme Court held that
the individual liberties protected by the Bill of Rights, including
the right to keep and bear arms, are not among the "privileges or
immunities" protected against state abridgement by the Fourteenth
Amendment. Whether this was a correct interpretation or not, the
Supreme Court has adhered to it ever since, and the lower courts
are required to accept it.
In the twentieth century, however, the Supreme Court decided a
series of cases in which it concluded that most of the rights
protected against the federal government by the Bill of Rights are
also "incorporated" against the state governments by the Fourteenth
Amendment's Due Process Clause. The Court has analyzed each right
separately, but the legal test that eventually emerged focuses on
the significance of the right at issue in the Anglo-American
tradition of ordered liberty. The Supreme Court has not yet
reviewed an incorporation case involving the Second Amendment, but
its Second Amendment opinion last year pointedly noted that a due
process analysis is now "required" under its twentieth century
caselaw.
Judge Sotomayor ignored this instruction from the Supreme Court.
She decided that her court was not required to perform this due
process analysis because the nineteenth century decisions under the
Privileges or Immunities Clause had settled the issue. Several
circuit courts had reached the same conclusion before last year's
Supreme Court's decision, and one other circuit court reached the
same conclusion just this month. Her defenders can therefore
plausibly argue that her decision was not wildly out of the
judicial mainstream.
It is not true, however, that Judge Sotomayor was faithfully
following precedent. The Supreme Court has never said that the Due
Process Clause does not "incorporate" the right to keep and bear
arms. That Court has never said that the nineteenth century
Privileges or Immunities Clause cases foreclose due process
analysis. Nor has it ever said that the lower courts are supposed
to "wait" for the Supreme Court to rule on due process
incorporation. The Supreme Court's twentieth century incorporation
cases are the most relevant precedents, and Judge Sotomayor
completely ignored them.
As Nelson points out, one of the disturbing aspects of Maloney is not
just that Sotomayor may have gotten it wrong, but that she dispensed
with a major constitutional issue in a short, cursory opinion. This is
consistent with her actions in [2]Didden v. Village of Port Chester
and [3]Ricci v. DeStefano, two other cases where she dismissed
important constitutional rights claims that she was unsympathetic to -
both with little or no analysis.
I don't think this pattern is the result of laziness or incompetence.
Her [4]overall record clearly shows that Judge Sotomayor is neither
lazy nor incompetent. Rather, I fear that she genuinely believed that
these three cases were essentially "slam dunk" decisions and that the
side she ruled against didn't have any serious arguments. If so, that
attitude reveals a great deal about her views on property rights, gun
rights, and reverse discrimination claims.
References
1. http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243356423
2. http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245113908
3. http://volokh.com/posts/chain_1244327574.shtml
4. http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243485510
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