Sotomayor and the Second Amendment
By Nelson Lund
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.
Last year, the Supreme Court resolved a longstanding debate by holding that the Second Amendment's right to keep and bear arms includes the right of American citizens to have weapons for personal self defense. Accordingly, the Court struck down a D.C. statute that outlawed the possession of handguns.
Since 1833, it has been settled that the Bill of Rights does not apply to state laws, but only to federal legislation like that involved in the D.C. case. In 1868, however, the Fourteenth Amendment imposed new restrictions on the States, forbidding them to abridge the "privileges or immunities" of American citizens or to "deprive any person of life, liberty, or property without due process of law."
In several nineteenth century cases, the Supreme Court held that the individual liberties protected by the Bill of Rights, including the right to keep and bear arms, are not among the "privileges or immunities" protected against state abridgement by the Fourteenth Amendment. Whether this was a correct interpretation or not, the Supreme Court has adhered to it ever since, and the lower courts are required to accept it.
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 them.
Two months ago, the Ninth Circuit performed a careful analysis of those precedents, and concluded that the right to keep and bear arms is indeed incorporated. Nor was this the first court to realize that lower courts are required to analyze and apply those precedents. A number of circuit courts have done so with respect to other individual rights, and none of them has ever been criticized by the Supreme Court.
One illuminating example, from Judge Sotomayor's own Second Circuit, is a double jeopardy opinion written by then-Judge Thurgood Marshall. The Supreme Court later cited his opinion favorably, but Judge Sotomayor apparently decided that she didn't even need to consider the precedent he set, let alone the relevant Supreme Court cases.
President Obama has said that he wants judges whose "deepest values" will help them decide the 5 percent cases that are truly difficult. Judge Sotomayor's deepest values apparently caused her to ignore the precedents that would have vindicated the right of Americans to have the tools they need to protect themselves from violent criminals. Can anyone expect that to change if she is confirmed to the Supreme Court?
Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law, recently published “Anticipating Second Amendment Incorporation: The Role of the Inferior Courts” in the Syracuse Law Review. He was also a law clerk for former Justice Sandra Day O’Connor.
