Sotomayor on Second Amendment Incorporation

Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) recently finished questioning Supreme Court nominee Sonia Sotomayor about her views on the Second Amendment, specifically her role in the 2nd Circuit's decision in Maloney v. Cuomo, which held that the Second Amendment does not apply against the states. Sotomayor stated explicitly that she and her 2nd Circuit colleagues were following Supreme Court precedent in this decision, that she "accepted and applied" the Court's ruling last year in District of Columbia v. Heller, which held that the Second Amendment protects an individual right. She and Leahy also referenced as precedent the 1876 case U.S. v. Cruikshank, which held that the Second Amendment does not constrain state governments.

While it's true that Heller didn't answer the question of Second Amendment incorporation, the decision was far from silent on the matter. In footnote 23 of his majority opinion, Justice Antonin Scalia observed that while Cruikshank stated that the Second Amendment did not apply against the states, "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."

As I've previously argued, this is a very potent statement. Consider that the Court has been protecting First Amendment rights from state and local abuse since 1925's Gitlow v. New York, making Cruikshank a dead letter when it comes to free speech (as Heller clearly notes). So why should Cruikshank still matter for gun rights? That's the conclusion the 9th Circuit correctly reached earlier this year in Nordyke v. King, where it used "the sort of Fourteenth Amendment inquiry required by our later cases" and correctly applied the 2nd Amendment against California. Perhaps somebody on the Judiciary Committee will ask Sotomayor whether she thinks Cruikshank is still good precedent for free speech cases, and if not, why gun rights deserve any less constitutional respect. I'd also like to hear why she thinks Maloney got it right but Nordyke got it wrong.

Watch the rest of the confirmation hearings for yourself here.

UPDATE: As Brian Doherty notes below, George Mason University law professor Nelson Lund took Sotomayor to task for ignoring the Court's twentieth century incorporation precedents.