Posted by Randy Barnett:
Sotomayor Again Misstates Fundamental Rights Doctrine:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247671867
As she did yesterday, Sotomayor asserted that a right is "fundamental"
if it is "incorporated" against the states via the 14th Amendnent
rather than that a right it incorporated against the states if it is
fundamental. She then claimed that Supreme Court precedent established
that that the Second Amendment is not incorporated. This too is
inaccurate. As Justice Scalia stated in Heller, the precedents
refusing to apply the Second Amendment to the states (on which
Sotomayor's panel relied in Maloney) did not address the modern
"fundamental rights" doctrine. Judge Sotomayor's panel in the Second
Circuit said nothing about the merits of the claim that the individual
right to bear arms meets the modern test for identifying a fundamental
right. Here is the relevant portion of [1]the transcript
SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized
an individual rights to bear arms as a right guaranteed by the
Second Amendment, an important right and one that limited the
actions a federal -- the federal government could take with respect
to the possession of firearms. In that case we're talking about
handguns.
The Maloney case presented a different question. And that was
whether that individual right would limit the activities that
states could do to regulate the possession of firearms. That
question is addressed by a legal doctrine. That legal doctrine uses
the word fundamental, but it doesn't have the same meaning that
common people understand that word to mean. To most people, the
word by its dictionary term is critically important, central,
fundamental. It's sort of rock basis.
Those meanings are not how the law uses that term when it comes to
what the states can do or not do. The term has a very specific
legal meaning, which means is that amendment of the Constitution
incorporated against the states.
COBURN: Through the 14th Amendment.
SOTOMAYOR: Through -- and others. But the -- generally. I shouldn't
say and others, through the 14th. The question becomes whether and
how that amendment of the Constitution, that protection applies or
limits the states to act. In Maloney, the issue with -- for us was
a very narrow one. We recognized that Heller held -- and it is the
law of the land right now in the sense of precedent, that there is
an individual right to bear arms as it applies to government,
federal government regulation.
The question in Maloney was different for us. Was that right
incorporated against states? And we determined that, given Supreme
Court precedent, the precedent that had addressed that precise
question and said it's not, so it wasn't fundamental in that legal
doctrine sense. That was the Court's holding.
This is both a grossly incorrect (and empty) understanding of the
doctrine governing the protection fundamental rights and an inaccurate
statement of the precedents concerning the incorporation of the right
to keep and bear arms into the Due Process Clause of the Constitution.
To be clear, a court COULD take the position, as did Judge Easterbrook
in the Seventh Circuit, that a Circuit Court of Appeals is not
entitled to consider the fundamentality of the right to keep and bear
arms under modern Due Process Clause doctrine in light of the Supreme
Court's ruling in Heller because Nineteenth Century precedent said
that the Second Amendment does not apply to the states--even though
those precedents implicitly involved the Privileges or Immunities
Clause. But, unlike the Seventh Circuit, the Judge Sotomayor's panel
simply ignored this issue altogether. And of course the Ninth Circuit
did consider this modern doctrine and concluded that the right to bear
arms IS fundamental.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071501414.html
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