Guns in Unincorporated Territory

Does a recent decision show Sonia Sotomayor hates the Second Amendment?

Jacob Sullum | June 17, 2009

Gun Owners of America calls Supreme Court nominee Sonia Sotomayor "an anti-gun radical." The Second Amendment Foundation says her selection was "a slap at gun rights."

Such characterizations are based mainly on Sotomayor's participation in a January decision that said state and local governments are not bound by the Second Amendment. But because it was arguably compelled by a series of 19th-century Supreme Court precedents, Sotomayor's conclusion does not necessarily signal an anti-gun bias.

In an unsigned opinion by a unanimous three-judge panel that included Sotomayor, the U.S. Court of Appeals for the 2nd Circuit rejected a Second Amendment challenge to New York state's ban on nunchaku, the martial arts weapon consisting of two sticks joined by chain or cord. "It is settled law," the panel said, "that the Second Amendment applies only to limitations the federal government seeks to impose."

The appeals court cited Presser v. Illinois, an 1886 decision in which the Supreme Court said the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state." That decision, which relied on the 1875 ruling U.S. v. Cruikshank, was followed in 1894 by Miller v. Texas, which said "it is well settled" that both the Second and Fourth amendments "operate only upon the federal power."

Nowadays, of course, federal courts routinely ask whether state or local governments have violated the Fourth Amendment's prohibition of unreasonable searches and seizures. According to the Supreme Court, that guarantee, along with others in the Bill of Rights, applies to the states by way of the 14th Amendment. The trio of 19th-century gun cases came after the 14th Amendment was ratified but before the Court began reading it to incorporate restrictions that had hitherto applied only to the federal government.

Now that the Supreme Court has said the Second Amendment protects an individual right to arms, applying it to the states, along with the First, Fourth, Fifth, Sixth, and Eighth amendments, is the logical next step. A footnote in D.C. v. Heller, the 2008 case in which the Court overturned the District of Columbia's handgun ban, suggests it is leaning in that direction: "With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

But are lower courts free to apply the Second Amendment to the states through this sort of analysis, as the U.S. Court of Appeals for the 9th Circuit did in April, or must they wait for the Supreme Court, as both the 2nd Circuit and the 7th Circuit have decided? Although the historical record makes it clear that the right to arms is one of the "privileges or immunities" protected by the 14th Amendment, Presser rejected that argument, citing an 1872 decision in which the Court took an unreasonably narrow view of the clause.

Presser also seemed to reject an incorporation argument based on the 14th Amendment's guarantee of due process, the rationale the Court used when it started applying the Bill of Rights to the states in the early 20th century. The Presser Court called the appellant's due process argument "so clearly untenable as to require no discussion." But in Miller, decided just eight years later, the Court was less firm on this point, declining to address the incorporation issue because "it was not set up in the trial court."

The bottom line is that an intellectually honest judge could have gone either way on the question of whether Supreme Court precedents foreclose incorporation of the Second Amendment. Sotomayor, a left-leaning Greenwich Village resident chosen by a president who never met a gun control he didn't like, probably is not a big fan of the Second Amendment. But this particular case does not prove it.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

Comments

|6.17.09 @ 7:59AM|#

"...Sotomayor's participation in a January decision that said state and local governments are not bound by the Second Amendment."

I half agree with her here... but only half.

While I fully support gun rights, the text of the 14th Amendment... "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"... makes absolutely no mention of local authorities. Therefore, it would clearly apply only to States and not to local governments (unless specified otherwise in the relevant State's Constitution).

This would imply that local authorities (municipalities, counties, districts, whatever...) could enact and enfore their own gun laws, but no violation could be tried in state courts or lead to punishment in state prisons.

|6.17.09 @ 8:13AM|#

What is the rationale behind the idea that the 14th only applies certain Amendments to the States?

|6.17.09 @ 8:18AM|#

While I fully support gun rights, the text of the 14th Amendment... "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"... makes absolutely no mention of local authorities.

All municipalities and other local authorities exercise power delegated from their state governments.

|6.17.09 @ 8:44AM|#

Fascitis Necrotizante|6.17.09 @ 8:45AM|#

All municipalities and other local authorities exercise power delegated from their state governments.

Is there a distinction to be made there between home rule and Dillon's rule states?

I doubt I remember this correctly, but wasn't home rule first formulated as an effort to allow local governments to dodge 14th amendment protections to railroad corps. et al?

|6.17.09 @ 8:45AM|#

Now that the Supreme Court has said the Second Amendment protects an individual right to arms, applying it to the states, along with the First, Fourth, Fifth, Sixth, and Eighth amendments, is the logical next step.

Well, duh. If there is an individual right, no level of government can abridge it. I don't understand the mental gymnastics engaged in this article.

STUPID OPEN TAG

Barry Loberfeld|6.17.09 @ 8:57AM|#

How to explain the 2nd Amendment to liberals AND conservatives.

Happy Jack|6.17.09 @ 8:57AM|#

compelled by a series of 19th-century Supreme Court precedents

Little Bill Daggett, for one.

|6.17.09 @ 10:18AM|#

I would love to hear the media response it the Supreme Court ruled that the first amendment only applied to the federal government and not the states and municipalities. There is no intellectual honesty in picking and choosing one over another to apply to what and where.

That said: it's the second amendment that is supposed to defend all others. If it can't support itself then all is lost. We as a people don't have the courage of our convictions. Loss of the second amendment would be proof we no longer hold those beliefs or we are a nation of cowards.

|6.17.09 @ 10:19AM|#

As a magic latina, Sotomayor is going to understand and appreciate the issue of gun right and the 2nd Amendment a lot better than some gun clinging white male who hasn't lived that life.

Jeffersonian|6.17.09 @ 10:33AM|#

This is very simple: Do you believe she would have joined Scalia's opinion in Heller or the Liberal wings opinions?

I am Convinced that she would never have joined Scalia's opinion and therefore should be grilled HARD during confirmation about gun rights.

Bill|6.17.09 @ 10:49AM|#

What is the rationale behind the idea that the 14th only applies certain Amendments to the States?

One that's kind of made up, actually. Basically, despite all the historical evidence that the 14th was meant to apply the first 8 amendments to the states, the justices thought they knew better and decided that, out of concerns for federalism and deference to "states' rights," only certain "fundamental" rights that are necessary and inherent in a "well-ordered liberty" were protected from state interference. This required justices to divine the inherent truth from natural law to "discover" which particular rights were so "fundamental" as to be protected from state interference.

But more seriously - rather than just adopt all the first 8 amendments wholesale, SCOTUS has dealt with particular claimed rights one at a time, as they have been presented with cases raising that particular issue. Which, as a general practice, is probably as it should be - deal with and decide only so much as is necessary to dispose of the case presented. Assuming, of course, that they have disposed of all that inconvenient evidence that the 14th really was meant to adopt and apply the BoR to the states.

Over the past what, 80 years or so? The court has determined that speech, religion, right to an attorney, freedom from unreasonable searches and siezures, etc. are so fundamental to our traditional notions of well-ordered liberty, substantial justice and fair play that those amendments are enforceable against states.

They just have never been presented with a case that squarely presents the question of whether the Second applies to states. Just as they never have been presented with a case that asks whether the Third does. So they've never had a reason to rule that the 14th incorporates either the Second or Third amendments. Looks like they'll be getting their chance soon, though...

|6.17.09 @ 11:07AM|#

They just have never been presented with a case that squarely presents the question of whether the Second applies to states.

Well, they have. They just haven't taken it.

|6.17.09 @ 11:49AM|#

The Supreme Court has decided cases such as Lawrence v. Texas and Griswold v. Connecticut that the unenumerated right to privacy inherent in all citizens is enough to bar legislation that limits the use of condoms for protection of self and others during consensual sex.

It would take some really interesting verbal gymnastics for the Supreme Court to decide that an enumerated individual right to keep and bear arms, recently legislated in Heller v. DC as a right enumerated specifically for the act of self defense, does not bar legislation that prohibits use of a tool for protection of self and others from violent criminal attack outside the home, which is surely a nonconsensual act for the victim.

The genius of Alan Gura becomes more apparent every time this guns and self-defense issue comes up.

Batlle Axe|6.17.09 @ 12:02PM|#

That's the best picture ever.

LarryA|6.17.09 @ 1:01PM|#

But because Sotomayor's conclusion was arguably compelled by a series of 19th-century Supreme Court precedents, says Senior Editor Jacob Sullum, it does not necessarily signal an anti-gun bias.

But would he bet on her supporting the Second Amendment? I wouldn't.

|6.17.09 @ 10:10PM|#

An observation: Remember that the editors at Reason put a larger emphasis on gay "rights and legalized drugs than on gun rights, when gun rights is/are the only one of the three that is explicitly protected by the Constitution.

Sotomayer is on record stating that (paraphrasing here) 'The Second Amendment is not unabridgable.'

Note also that many states have explicit clauses that are essentially identical to the Second Amendment. That doesn't keep them from abrogating explicitly protected rights any more than it keeps the Feds from it.

14th Amendment allowing states to make their own rules? Absolutely a red herring used by socialists in this context.
The most restrictive (from the citizen's perspective) gun law in any level of Government supercedes the less restrictive law in any level of Government. (A more restrictive city or state law supercedes a less restrictive Federal law.)

Roe v Wade, a case creating a right to privacy in the shape of abortion rights, is Federal. Many states still have abortion bans on the books. These bans are ALL superceded by the less restrictive ruling at the Federal level.

The Liberal view, as represented in this manner by Sullum here, debunks itself.

They are trying to make her a "stealth" candidate, in many ways like they did with Obama.

|6.17.09 @ 11:00PM|#

So just how is it that Presser v Illinois can be cited to uphold a state of city gun ban when Presser itself says that even laying constituional questins out of view, states cannot enact bans on firearms as that denies the US it's militia. The following taken from www.davekopel.com/2A/LawRev/35FinalPartOne.htm

J. Presser v. Illinois

In the late 19th century, many state governments violently suppressed peaceful attempts by workingmen to exercise their economic and collective bargaining rights. In response to the violent state action, some workers created self-defense organizations. In response to the self-defense organizations, some state governments, such as Illinois's, enacted laws against armed public parades. [FN311]
Defying the Illinois Statue, a self-defense organization composed of German working-class immigrants defied the law, and held a parade in which one of the leaders carried an unloaded rifle. At trial, the leader--Herman Presser--argued that the Illinois law violated the Second Amendment.
The Supreme Court ruled against him unanimously. First, the Court held that the Illinois ban on armed parades "does not infringe the right of the people to keep and bear arms." [FN312] This holding was consistent with traditional common *174 law boundaries on the right to arms, which prohibited terrifyingly large assemblies of armed men. [FN313]
Further, the Second Amendment by its own force "is a limitation only upon the power of Congress and the National Government, and not upon that of the States." [FN314]
Did some other part of the Constitution make the Second Amendment enforceable against the states? The Court added that the Illinois law did not appear to interfere with any of the "privileges or immunities" of citizens of the United States. [FN315] Although the Court never actually used the words "Fourteenth Amendment," it is reasonable to read Presser as holding that the Fourteenth Amendment's Privileges and Immunities clause does not restrict state interference with keeping and bearing arms. This reading is consistent with all the other Fourteenth Amendment cases from the Supreme Court in the 1870s and 1880s, which consistently reject the proposition that any part of the Bill of Rights is among the "Privileges and Immunities" protected by the Fourteenth Amendment. [FN316]
As to whether the Second Amendment might be protected by another part of the Fourteenth Amendment--the clause forbidding states to deprive a person of life, liberty, or property without due process of law [FN317]--the Court had nothing to say. The theory that the Due Process clause of the Fourteenth Amendment might protect substantive constitutional rights had not yet been invented. Most of what the Waite Court had to say about Bill of Rights incorporation has long since been repudiated (although not always formally overruled) by subsequent courts, via the Due Process clause.
It is true that some modern lower courts cling to Presser and claim that Presser prevents them from addressing a litigant's claim that a state statute violates the Second Amendment. [FN318] It is hard to take such judicial arguments seriously. An 1886 decision about Privileges and Immunities is hardly binding precedent for 1990s Due Process. The dicta from the modern Supreme Court about the Second Amendment as a possible Fourteenth Amendment liberty interest is incompatible with the claim that Presser forecloses any possible theory of incorporating the Second Amendment. At most, Presser rejects Privileges and Immunities incorporation, but the case cannot be read to address a legal theory (Due Process incorporation) which did not exist at the time the case was decided.
*175 Interestingly, Presser does offer another theory on which the United States Constitution might restrict state anti-gun laws. Article I, section 8, clauses 15 and 16 give Congress various powers over the militia. [FN319] States may not interfere with these Congressional militia powers; so in dicta, the Presser Court stated that the states could not disarm the public so as to deprive the federal government of its militia:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States, and, in view of this prerogative of the general government. . .the States cannot, even laying the Constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect. [FN320] So according to Presser, the constitutional militia includes "all citizens capable of bearing arms." [FN321] But this statement is not directly about the Second Amendment; it is about Congressional powers to use the militia under Article I, section 8, clauses 15 and 16.





Perhaps this court is beginning to move in a direction of intellectual honesty at least as relates to the BOR. That is a good thing, as the more honest they become on this issue, the more honest they must be on others.

It is certain at this point that some circuits must have their noses rubbed into it, as it is obvious they cannot even read what the text of the precidents they claim to stand on actually say.

In the end even if the present cases lead to a decision of incorporation, the Court will still have to explain the meaning of "shall not be infringed" as the anti's seem to have failed reading comprehension and their next arguments will focus on what "reasonable restrictions" mean.

Jeffrey Henderson|6.18.09 @ 9:46PM|#

The Constitution does not give us our rights, it just spells out some of them. The right to be armed is self evident and only a tyrant would attempt to infringe upon it, which actually is amusing since the solution to protecting that right is the very exercise of the right.

|6.19.09 @ 4:12PM|#

What "WE THE PEOPLE" need to do is to let the government know that WE THE PEOPLE are going to exercise our right to keep and bear arms and want it to remain uninfringed. THEN DO IT!