posted on Jul, 14 2009 @ 05:21 PM
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. This is a half truth that conceals more than it reveals.
Found this article and thought it warranted some attention. Apparently Sotomayor ignored precedent in a case concerning the Second Amendment.
In the twentieth century, however, the Supreme Court decided a series of cases in which it concluded that most of the rights protected against the
federal government by the Bill of Rights are also "incorporated" against the state governments by the Fourteenth Amendment's Due Process Clause.
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
This doesn't surprise me, but it does worry me. Is she going to be able to put aside any personal agendas she has to faithfully uphold the
Constitution? Considering that that's the job she's being interviewed for, I certainly hope she can.