There’s a good deal of angst among observers about Justice Sonia Sotomayor’s view of the Second Amendment, specifically its applicability to the states. I’m one of those feeling the angst.
Since the Heller decision established the Second Amendment as an individual right (rejecting the “collective right” theory held by most leftists), the most important remaining issue is whether the amendment is “incorporated” (i.e. applies) to the states under the “Privileges and Immunities” and “Due Process” clauses of the Fourteenth Amendment. For the non-lawyers out there, the relevant portion of the Fourteenth Amendment is as follows:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Until the ratification of the Fourteenth Amendment in 1868, it was clearly settled that the Bill of Rights only applied to actions by Congress. The Fourteenth Amendment’s Due Process clause, however, imposed restrictions on the states’ ability to abridge liberties deemed fundamental. Until the twentieth century, the Supreme Court generally held that the individual liberties protected by the Bill of Rights, including the right to keep and bear arms, were not among “privileges or immunities” protected against state restriction or abridgement by the amendment.
During the twentieth century, however, the Court changed its mind in a group of cases in which it concluded that most of the rights set down in the Bill of Rights are also “incorporated” against the state governments. The Court analyzed each right separately but the basic legal standard that emerged was whether the particular right at issue falls squarely in the Anglo-American tradition of ordered liberty. While the Supreme Court has not reviewed whether the Second Amendment should be “incorporated”, footnote 23 of the Heller case quite directly noted that a due process analysis is now “required” and that such an analysis should follow the Court’s twentieth century “privileges and immunities” case law. The Ninth Circuit Court of Appeals has already entered the fray, finding in the 2009 Nordyke case that the Second Amendment did indeed apply to the states.
Yet, Sotomayor took a different tack in the Second Circuit case of Maloney v. Cuomo, also decided this year – and after Heller. The three-judge panel, writing per curiam – seemed to ignore the Supreme Court’s clear instructions in footnote 23, holding that the court didn’t have to perform required due process analysis because the nineteenth century decisions under the Privileges or Immunities Clause had settled the issue. The court also seem to say that lower courts were not permitted to engage in “incorporation analysis”. In fairness to the judge, however, the Seventh Circuit Court of Appeals reached the same conclusion in recent case of NRA v. City of Chicago.
But the notion (1) that courts should rely on the older – and superseded – ninteenth-century incorporation cases and (2) that lower courts should avoid incorporation analysis altogether on the basis of such “settled law” is absurd. While Sotomayor and the Second Circuit panel claimed merely to be following precedent, this seems to be a dishonest dodge to reach a required result – or sloppy analysis of “privileges and immunites” jurisprudence.
This sort of thing makes me very uneasy.
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