Sotomayor Not Too Big on Gun Rights

By Brian Doherty

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