Sotomayor Shocker: She's Not Too Big on the Second Amendment

Brian Doherty | July 14, 2009

I wouldn't expect anything different from any Obama nominee, of course, but Second Amendment scholar Nelson Lund takes Sotomayor to task for her studious avoidance of thinking hard about citizens' gun rights when given a chance.

Sure, the Second Amendment has not (yet) been authoritatively said to apply to the states (via 14th Amendment incorportation) by the Supreme Court. Still, Lund writes at RealClearPolitics:

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......

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.

Of course, it is true that so far only the Ninth Circuit, in this year's Nordyke v. King, did any different than Sotomayor on this matter, and that it's extremely unlikely any Obama nominee will be better from a Second Amendment perspective. Still, it might make an interesting wedge to ask her about when she's applying judicial analysis dispassionately and when she's being guided by political and ideological preconceptions.

Comments

|7.14.09 @ 10:04AM|#

She just said again that she doesn't believe the second amendment is a fundamental right.

|7.14.09 @ 10:11AM|#

Oh wow that makes sense!

ER
www.anonymize.tk

|7.14.09 @ 10:13AM|#

James Ard,

Did she say that in her confirmation hearings? If so, her handlers are no doubt going to beat her with a hose at the next break. Use that quote against a Southern Democrat and the add pretty much writes itself.

Rich|7.14.09 @ 10:13AM|#

Certainly not "fundamental" in the sense of health care.

|7.14.09 @ 10:14AM|#

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.

Those cases also didn't incorporate other provisions that have since been incorporated. Their reasoning has been superseded by the more recent incorporation decisions.

Sotomayor is a good urban liberal who hates guns and will take every opportunity to reduce the rights of Americans to own and use them. Why this is a surprise to anyone is a mystery to me.

How she can say that the 2A doesn't establish a fundamental right after Heller is a mystery to me. The only grounds for such a position was the states rights interpretation of the 2A, which was rejected in Heller.

We are one pro-2A judge away from losing the 2A.

Kyle Jordan|7.14.09 @ 10:28AM|#

"We are one pro-2A judge away from losing the 2A."

Correction,

We are one pro-2A judge away from losing this country and what it was founded upon.

Make no mistake, if the 2nd Amendment is taken away (basically or in full) the United States of America dies. The name may be the same but that would be it.

Barry Loberfeld|7.14.09 @ 10:29AM|#

Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the "original intent" of the First Amendment's no-establishment clause was to preserve the right of the state governments to establish their own churches. "Congress shall make no law respecting an establishment of religion" -- so that the state legislatures can. Along those lines, we may conclude that the "intent" of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide -- a point where our liberal finds himself in perverse agreement with a hated premise.

Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers -- and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens -- against the power of the federal government. The weak reed of this "states' rights" theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the "most valuable") affirming "No state shall violate the equal rights of conscience" and other liberties. Sadly, it was never adopted, and incorporation -- the application of the Bill of Rights to the state governments -- was not achieved until the Fourteenth Amendment, whose "privileges or immunities" clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis' No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

WHOLE STORY

|7.14.09 @ 10:32AM|#

John, She said it in the hearing, but she couched it as a states rights issue. Goddamn piece of shit.

|7.14.09 @ 10:37AM|#

The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

Who are these conservatives?

John, She said it in the hearing, but she couched it as a states rights issue. Goddamn piece of shit.

So, in her view, Heller is a dead letter, and its adoption of the individual rights interpretation never happened.

|7.14.09 @ 10:40AM|#

"Sotomayor Shocker"

This part is the main part of the Bill of Rights. And this little Second Amendment down here, well, that shocks her.

|7.14.09 @ 10:43AM|#

Why do we even bother with these damn hearings anyway? It doesn't really matter what her answers are. Identity politics is more important than any quaint little documents like the Constitution. It's like passing bills. No one reads them anymore, they just seek 'guidance' from the party heads. None of her supporters at the hearings really care how she answers, they're just the to proselytize and preach to us what a great example of humanity she is.

It's grandstanding at its worst. Hell, she was even told that as long as she doesn't have a meltdown, she's going to be confirmed. She's had plenty of time to prepare her answers for the important stances that would come up against her. Her supporters will just nod and applaud her latinaness, and her detractors won't believe her anyway.

Waste of damn time.

|7.14.09 @ 10:49AM|#

Sotomayor reading the Second Amendment out of existence puts her out of the mainstream. Even people like Larry Tribe and Cass Sunstein admit that the 2nd Amendment means what it says even though they don't like it. Her reading of it though shows what a danger the idea of a "living constitution" is. The document doesn't, in Sotomayor's eyes really mean anything fixed. Instead, it is read according to the shifting tides of contemperary opinion and values, which is another way of saying it means whatever the powers that be want it to mean.

|7.14.09 @ 10:49AM|#

"It's grandstanding at its worst."

That's exactly what my post said. Sort of. Same point anyway.

|7.14.09 @ 10:52AM|#

Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

Who, precisely, are those people? There are conservatives who demand that if incorporation applies to other amendments, it should apply to the second. There are those (Judges Posner and Easterbrook) who seem to disagree with all incorporation in theory, but particularly disagree with incorporating an amendment that has not yet been incorporated. (While presumably not wanting or being able to overturn Supreme Court precedent on the others.) Of course, these judges are commonly referred to as fairly libertarian-leaning, not necessarily as conservatives, especially Posner. In any case, they do seem consistent.

Ilya Somin also has a good discussion on this.

As he (and Nelson, about this case) notes, perhaps the more upsetting part is that Judge Sotomayor fails to even discuss the arguments of the other side in this case, or in the eminent domain case (Didden v. Port Chester) or Ricci (firefighters and changing a test after the fact if it doesn't give the racial results you want.) Most judges at least attempt to address the points raised by their opponents.

Judge Sotomayor seems to me either to be a poor or lazy opnion writer, or else simply so confident in her opinion in these hot button cases that she doesn't believe that the other side has a case. And of course the cases where she is so supremely confident are those where she's taking an anti-libertarian side.

|7.14.09 @ 10:57AM|#

"Judge Sotomayor seems to me either to be a poor or lazy opnion writer, or else simply so confident in her opinion in these hot button cases that she doesn't believe that the other side has a case."

That pretty much sums it up. If you look at the dirt piece that came out before her nomination, her clerks and other judges who worked with her all said she was incredibly opinionated and hard headed. She seems to be one of those people who has spent their entire life in a cocoon of like minded people and either never had or long since lost the ability for honest intellectual inquiry. She will be a mindless liberal vote on the court who will write confused and generally ignored opinions. It is a shame that identity politics drives the nomination process.

The Angry Optimist|7.14.09 @ 11:06AM|#

who the Fourth Liberal will be is so unimportant, so I guess it makes sense to manufacture a controversy over it. One thing that I will note that is pretty startling is that the Right has a lock on the narrative of this thing when it comes to the press (i.e. the "racist" charge has gone weakly countered and nothing more).

Mike M.|7.14.09 @ 11:26AM|#

We are one pro-2A judge away from losing this country and what it was founded upon.

Make no mistake, if the 2nd Amendment is taken away (basically or in full) the United States of America dies. The name may be the same but that would be it.

Elections do indeed have consequences. Sometimes massive consequences.

Remember this next November. Reign in our would-be dictators, before it's too late.

|7.14.09 @ 11:54AM|#

who the Fourth Liberal will be is so unimportant, so I guess it makes sense to manufacture a controversy over it.

This is a popular, but wrongheaded view. There is an important series of civil liberties cases with a 5 member majority consisting of Justices Scalia, Thomas, Souter, Ginsburg, and Stevens has consistently ruled in favor of more civil liberty protections. (Justices Roberts and Alito have nearly identical views to Reinquist and O'Connor on these issues, and we can view cases as a continuation.) These cases include:

1) Right to jury trial. Does the Constitution prevent judges from deciding if a case is death penalty, from deciding whether something has aggregated factors for the sentencing guidelines, increasing penalties based on their own findings of fact, etc.? Five Justices say yes, while four consistently say that prudence and balancing rights means that judges are better equipped than juries to deliver justice. See Apprendi v. New Jersey, Ring v. Arizona, Blakely v. Washington, Cunningham v. California. Note that Oregon v. Ice went 5-4 the other way against the defendent because Ginsburg and Stevens didn't go along (but Roberts switched to uphold precedent of the previous cases.)

2) Confrontation clause-- How far does the Constitution's right to confront a witness extend? Does it extend to police scientists who prepare lab reports, to hearsay statements by spouses, etc. See Crawford v. Washington and the recent Melendez-Diaz case.

3) Search after arrest-- Can a car be searched after a suspect is arrested if the suspect no longer poses a threat and there is no likelihood of finding evidence related to the crime for which the driver was arrested? Arizona v. Gant, discussed on Reason.

4) Searching using heat detectors-- Do the cops need a warrant to use heat sensors to detect the heat from hydroponic grow lamps coming off a house? Is this like visible light (cops don't need a warrant if you leave your blinds open) or something that violates reasonable expectations of privacy? Kyllo v. United States. -- Here Justices Breyer and Stevens switched.

|7.14.09 @ 12:00PM|#

Democratic Senators had made clear earlier that nominating any libertarian-leaning judges like Janice Rogers Brown would be fiercely opposed, and that they preferred, if a justice had to be conservative, "pragmatic" Justices like Roberts and Alito.

Of course, perhaps GWB prefers that type of judge too, and dislikes the formalists and idealists like Justices Thomas and Scalia.

In any case, since Roberts and Alito are both like the justices they replaced, little change occurred. But the formalism/pragmatism split is very important for civil liberties, and not much discussed.

One problem is that the pragmatists tend to be more moderate and inconsistent on issues, so the party not of the President prefers pragmatists that might switch their mind on hot button issues occasionally instead of formalists who tend to be logically rigorous and consistent.

It's bad news for civil liberties, though. Essentially, because libertarian leaners tend to be dogmatic and consistent in all their opinions, politicians especially don't trust the libertarians of the other party. Especially if Judge Sotomayor is, as VP Biden has promised, a pragmatist unlike Justice Souter.

24AheadDotCom|7.14.09 @ 12:55PM|#

If she's so bad on the 2nd, why didn't BHO's opposition (very broadly defined and including blogs like this) try to turn public opinion against her before the hearings in order to make it more likely that she'd withdraw?

That, of course, is a rhetorical question. The leaders of the opposition to BHO are for the most part completely incompetent. They're easily distracted and they keep making the same mistakes over and over. And, instead of encouraging people to do something effective, they either encourage people to do nothing or to do things that aren't effective.

In case anyone wants to do something effective, here's how to block Sonia Sotomayor. Please send that link to all your friends and urge them to get involved. Don't expect the GOP or major bloggers to do that: you have to.

|7.14.09 @ 1:23PM|#

Thank you for providing a link, 24AheadDotCom. I appreciate the effort.

alan|7.14.09 @ 1:40PM|#

Excellent deductive work, J. Thacker. If you listened to her introductory speech, yesterday, she reveled in being a 'tough on crime' former prosecutor, so I don't expect her to step in Souters shoes where both he and Ginsberg fullfill admirable rolls.

As an aside, in the recent controversy, Ginsberg's critics failed to note that she was the one who brought up the link between eugenics and the institutional practice of abortion, something most liberals shy away from even though it boosts the reasoning backing an individual right.

Sonia Sotomayor comes across as glib and self satisfied. I'm looking forward to the day when Scalia bursts her postmodernist bubble. Hell, it would be even more satisfying if it turns out to be Ginsburg who bursts that bubble. Old school, civil rights oriented liberal versus the slick, boot licking, left leaning careerist. It would make for great drama.

|7.14.09 @ 2:24PM|#

I should also point out that Souter was part of a 5 member majority in Kelo v. New London Judging from Sotomayor's record and her comments (incorrectly) explaining Kelo today (she just claimed it was a blighted area, which it was not, as all sides agreed), she would not flip and reverse Kelo.

|7.14.09 @ 2:56PM|#

Is it just me or is she claiming the same bullshit no matter what the topic. She says the same thing here she said about the fire fighters she racially kicked in the nuts. She was just following the precedent already set by the courts. Well wtf, if all you have to do to be a judge is cite history wtf do we even need her for in her current job? If all she is going to do is go by what went before can't anyone pretty much do this job?

|7.14.09 @ 2:57PM|#

Sotomayor reading the Second Amendment out of existence puts her out of the mainstream.

What mainstream? SCOTUS appointments are for life, and they all think 5 out of 9 of them can do absolutely anything they want, Constitution be damned, voter sentiment be damned.

The only mainstream that counts for them is the majority of 9 SCOTUS justices.

Until someone shoots one of them for overstepping their bounds even more egregiously than they have done so in the past, and they start caring again what the citizenry thinks. Which is why the Second Amendment MATTERS. The citizens need the right to bear arms to keep the government reined in.

|7.14.09 @ 3:30PM|#

"We are one pro-2A judge away from losing the 2A."

Correction,

We are one pro-2A judge away from losing this country and what it was founded upon."


Correction,

We are one judge away from not giving a shit about any of the laws or the basis for them. If the 2nd goes than so with it goes all the others. At which point in time she will become nothing but another strategic target of those will now be fighting to get the country back. Those that will not for any reason be turning their guns into the government, regardless of how wise the latina woman judge thinks she is, they would all be up for quick erradication in the next revolution. Toss the second and toss any rights you had to your being safe and secure as well. When it comes down to Revolutionary war those is power seem to forget that the 1st people highest on the list to be taken out are the ones that brought about the war to begin with and those thought to be leading it for the enemy. Basically when push comes to shove no title or job even the SCOTUS will save you from being taken out. If you trash all that millions have defended why would you possibly think that all other laws will still be followed to the letter by those who just had their freedoms and rights tossed out the window by no one other than yourself.