An anachronistic 1886 decision of the Supreme Court. That's what Judge Sonia Sotomayor relied upon in deciding that the Second Amendment does not apply to the states. That is, that the Constitution does not protect the right to bear arms against any restrictions by state or local governments.
A cursory (2 paragraphs of reasoning), unenlightening, and unsigned opinion. That's how Sotomayor treated, and dismissed, the contention that the states must honor the constitutional right to bear arms. That is, how she treated, and dismissed, a legal claim this year that the Constitution protects the right to bear arms against violations by states and localities--not just by the federal government.
One need not be a firearms aficionado or a 2d Amendment partisan to be troubled by the manner in which Sotomayor dealt with the right to bear arms. Not only in the Maloney case, but in her responses to questions about that case at the Senate Judiciary Committee hearings. Both in Maloney and at the hearings, she insisted that her position was based on settled law. That the 1886 Supreme Court decision in Presser is settled law. So too is a 2005 decision of the 2d Circuit (the federal appeals court on which she has been sitting).
Let's start with that 2005 decision. Bach v. Pataki (decided by a 3 judge panel that did not include Sotomayor) simply restated that 1886 Presser decision. Okay, to be fair, it also cited U.S. v. Cruikshank--an 1875 decision of the Supreme Court that was quoted in Presser for the same antiquated (i.e., long overruled) view of the Constitution.
The unexamined application of those 1886 and 1875 rulings in the 2005 decision by 3 of her colleagues should have been enough to raise questions for
Sotomayor. But beyond that, there was this minor development in constitutional law a few years
after that 2005 decision. A little Supreme Court case named
District of Columbia v. Heller. That certainly should have given more than a little pause about whether her colleagues' 2005 decision--and those 1886 and 1875 decisions of the Supreme Court--represented "settled law."
Heller, of course, was the 2008 decision in which the Supreme Court ruled that the 2d Amendment's right to bear arms is an
individual right. Not just one enjoyed by state governments to organize a militia. In reaching that conclusion, the Court went to lengths to explain that the right to bear arms existed even
before the Constitution, that it was not even dependent on the 2d Amendment, and that the Founders and Framers viewed the right as a natural and fundamental one to which all free men were entitled. Beyond that, the Court strongly hinted that the 1886 and 1875 decisions had long since lost their validity.
(The Heller
decision was discussed at the time on the New York Court Watcher. See Supreme Court: Right on the Gun Right, June 27, 2008.)The specific question about the continued validity of the 1886 and 1875 decisions was not directly before the Court in
Heller. So the Court did not explicitly overrule--or reaffirm--them. But, it is impossible to read
Heller without seeing that the Court was
explicitly raising doubts about those old decisions. That the Court's actual holding in
Heller and its reasoning to support that holding cast serious doubts about those old decisions. And that those old decisions were now clearly
unsettled law--if that was not already clear.
And yet, in her
Maloney decision--decided the year after
Heller--and at the hearings,
Sotomayor persisted in claiming that those old decisions and her colleagues' 2005 decision relying on them was settled law. That was why her
Maloney decision was cursory and unsigned. State governments were free to ignore the constitutional right to bear arms. The law was clear. Despite
Heller. And despite what the Supreme Court alluded to in
Heller--i.e., what has happened in constitutional law to undermine those old decisions.
Indeed, all that has happened in constitutional law. Even without the 2008
Heller decision, the developments in constitutional law over the past century would alert a 1st year law student--would alert even a college student taking an undergraduate course in constitutional law--that those 1886 and 1875 decisions were extremely questionable at best. Certainly no longer to be considered "settled."
Those old decisions were decided at a time when the Supreme Court was still saying that the rights in the Bill of Rights did not apply to the states. That the Constitution did not protect those rights against violations by state governments. To be sure, the Bill of Rights itself was intended to apply only to the federal government. But with the ratification of the 14
th Amendment in 1868, the Constitution explicitly prohibited the states from unduly infringing upon "privileges," "immunities," and "liberty." Unfortunately, in decisions such as the 1886
Presser and 1875
Cruikhank, the Supreme Court largely nullified the 14
th Amendment.
According to the Court back then, the 14
th Amendment really didn't change anything. Deferring to state sovereignty, the Court repeatedly held that the amendment's explicit guarantees of "privileges" and "immunities" and "liberty"--as well as the "due process"--still didn't protect the rights in the Bill of Rights against state governments. One dissenting Justice in the infamous 5 to 4 decision in the 1873
Slaughterhouse Cases put it bluntly. The Supreme Court had turned the 14
th Amendment into a "vile and idle
enactment."
In case after case at that time, a majority of the Court held that the guarantees in the 14
th Amendment did virtually nothing to restrict the states. Just a few examples. In
Maxwell v. Dow (1900), the Court held that the states didn't have to provide jury trials in criminal prosecutions. In
Twining v. New Jersey (1908), states were not bound by the right against compelled self-incrimination. In
Minor v. Happersett (1874), states were free to decide who could vote and could deny that right to women [notwithstanding the Amendment's "equal protection" guarantee]. And in
Plessy v. Ferguson (1896), states were free to discriminate against African-Americans and keep them away from Whites.
Yes, those were the kinds of decisions and that was the climate surrounding the 1886 and 1875 decisions that
Sotomayor claims is still settled law. As would be expected for decisions at that time, the Supreme Court held in those cases
, Presser and
Cruikshank, that the right to bear arms wasn't protected against the states. Well, the Court had been holding that virtually no rights were protected against the states. And it was making absolutely clear that the 14
th Amendment didn't do a thing to make the Bill of Rights--or the rights expressed in the Bill of Rights--applicable against the states.
All that, as we all know, has changed.
The Supreme Court eventually took a different view. The 14
th Amendment's express protection against the states was recognized as having nationalized or "absorbed" or "incorporated" most of the Bill of Rights. Free speech, press, and religion; right to counsel, to a jury trial, and against compelled self-incrimination; and other rights deemed to be "fundamental" to the American concept of liberty have all been made applicable to the states--and, thus, constitutionally binding upon them.
Beginning in 1937 with the seminal decision in
Palko v. Connecticut, written by Justice Benjamin Cardozo (
Sotomayor's claimed judicial hero), the Supreme Court has interpreted "liberty" in the 14
th Amendment as including virtually every right mentioned in the Bill of Rights. "Implicit in the concept of ordered liberty." Principles "rooted in the traditions and conscience of our people." "Fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." That is how Cardozo construed the "liberty" guaranteed in the 14
th Amendment. And that is how the Supreme Court has construed and applied it ever since.
Cardozo's interpretation of "liberty" in the 14
th Amendment has prevailed. Indeed, the Supreme Court has since given it even wider application than Cardozo did. And
that is the law today.
That is what's "settled."
That is what the Supreme Court will apply when it decides whether the right to bear arms is protected against the states.
The Court will not be disinterring the jurisprudence of more than a century ago. Not the jurisprudence which denied that the states had any constitutional obligation to honor basic American rights. Not the decisions of that era. Not decisions such as
Presser and
Cruikshank which
Sotomayor relied upon earlier this year, in
Maloney, to dismiss the notion that the right to bear arms applied to the states. No, not those decisions of a bygone constitutional era--despite
Sotomayor's claims at the hearings that they represent settled law.
Does she really believe that? Or not? And what would be worse?
[Disclosure: Although I became accustomed to firearms in the Army, I am not a fan, let alone an enthusiast. In fact, I strongly support gun regulations.
But I don't believe that the 2d Amendment can honestly be ignored or disparaged. It was quite clearly deemed by the Founders and Framers to be critical to a free society. And when the case arises for the Supreme Court to apply its fundamental rights jurisprudence to the the right to bear arms (and there are cases in the pipeline), it is hard to imagine any decision other than that the right to bear arms is fundamental and is protected by the 14th Amendment against violations by the states.
I may turn out to be mistaken. But at the very least, there are very serious questions about the continued validity of those 1886 and 1875 decisions.
That is why I find Sotomayor's dismissive decision in Maloney and her explanation at the hearings to be so deplorable. Either she really does not understand the problems with those old cases, or she does and simply denied it. Again, what's worse?]
(Previous posts on the New York Court Watcher concerning Judge Sotomayor's performance at the hearings include: Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009:
(More on the Dreadful Success: SS on Judging), July 20, 2009;
(A Dreadful Success at the Hearings), July 19, 2009.
Posts on her record as an appeals court judge include:(See
Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009;
(Some Common Threads in Her Opinions), June 5, 2009;
(Versus Her Colleagues), June 3, 2009;
(Ideological Patterns in Her Opinions), June 2, 2009;
(First, Some Prefatory Comments), May 28, 2009.)
The contrast is stark. Conservative versus liberal Justices. The number of dissents last term. Both writing dissents and casting votes in dissent. The conservative Justices didn't dissent nearly as frequently as the liberal Justices did. They apparently had much less to complain about. Chief Justice Roberts, and Justices Scalia, Thomas and Alito were apparently much happier with the Court's decisions than were Justices Stevens, Souter, Ginsburg and Breyer.
Immediately apparent from Graph 2 is the contrast between the 2 senior Justices. As we already saw in the last post, liberal Justice Stevens, the Court's Senior Associate Justice, wrote 11 more dissenting opinions than conservative Chief Justice Roberts. As additionally depicted in this graph, we see that Stevens cast 15 more total dissenting votes than did Roberts. 31 to 16. Virtually twice as many.
Reading Graph 3 from the far left shows Justice Kennedy--again, the Court's usual swing voter--not surprisingly with the fewest dissenting votes. We already saw that he had written the fewest dissenting opinions. Now we see that the total number of votes he cast in dissent, 6, was also the lowest among the Justices.
