Today's hearing on Sonia Sotomayor's nomination to the Supreme Court provided a reminder that Sen. Russell Feingold (D-Wis.) is not the sort of civil libertarian whose mental map of the Bill of Rights excludes the Second Amendment (although the borders of his First Amendment get fuzzy in the vicinty of campaign finance reform). Feingold, who joined the congressional brief that urged the Supreme Court to overturn the District of Columbia's handgun ban in D.C. v. Heller, said it was reasonable for Sotomayor to conclude that the Second Amendment, in light of the relevant Supreme Court precedents, does not apply to the states. But he also made it clear that he thinks those precedents should be overturned:
I have long believed that the Second Amendment grants citizens an individual right to own firearms.
And, frankly, I was elated when the court ruled in Heller last year....I think [it] had been a mistake all along, to not recognize it as an individual right....
After Heller, doesn't it seem almost inevitable that, when the Supreme Court does again consider whether the Second Amendment applies to the states, that it will find the individual right to bear arms to be fundamental, which is a word that we've been talking about today?
After all, Justice Scalia's opinion said this: "By the time of the founding, the right to...bear arms had become fundamental for English subjects. Blackstone, whose works we have said constituted the pre-eminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. It was, he said, the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense...."
Isn't there a danger here that if you don't have this incorporated against the states that we'd have this result where the citizens of D.C. have a constitutional right to have a handgun, but the people of Wisconsin might not have that right? Doesn't that make it almost inevitable that you would have to apply this to the states?
Brian Doherty and Damon Root addressed the Second Amendment incorporation issue in the context of Sotomayor's nomination earlier today. While I agree that compelling states to respect the right to arms was one of the 14th Amendment's aims, I also agree with Feingold that deferring to the Court on this question (as both the 2nd and the 7th Circuits did) is defensible and does not necessarily indicate anything about Sotomayor's views on gun control. Here is a better indication, which falls into the category of protesting too much:
I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.