Sotomayor Misstates Constitutional Law

Georgetown University law professor Randy Barnett catches Supreme Court nominee Sonia Sotomayor misstating constitutional law during today's confirmation hearings:

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 is 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.

Barnett goes on to highlight the offending portion of Sotomayor's testimony, and ends with this damning observation: "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."

Whole thing here.