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Some Notes On Judge Sotomayor, the Second Amendment, and the Incorporation Doctrine

Correction:  In an account of George Cochran’s con law class, below, I misquoted him.  He said “Who the hell is Samuel Johnson and why would John Marshall care what he said about commerce?”

One of the folks in comments has been strongly attacking Judge Sotomayor as a racist and as an opponent to gun rights, whatever they may be.  I’ve yet to see any effective answer to the prior post (quoting Julian Sanchez) about the scurrilous, frivolous charge of racism– and repeat my puzzlement about whether those making the charge even understand what racism is.  But back to the Second Amendment issue.

The question is whether there is something unreasonable about a Second Circuit per curiam opinion in which Judge Sotomayor joined.  Apparently, it is being used to argue that Sotomayor is not “pure” on Second Amendment issues.

The case held that a New York stat  ute banning nunchuckas did not violate the Second Amendment.  Got that?  It’s not about guns.  It’s not about a weapon traditionally considered by Americans to be part of self defense, or anything that would be considered the sort of weapon that regular folks might report with when the militia is called to arms.  It’s nunchuckas, folks, not guns.

But beyond that, I want to set the context of the supposedly controversial opinion.

There are a series of questions about the Second Amendment.  The first is whether the language imparts an individual right.  In the Heller case, the Supreme Court clearly answered that it did. Stripping away all the wishes of gun-rights advocates, that was a far closer question than they acknowledged– the logic of Justice Scalia’s opinion explicitly required reading the opening language of the amendment (about a well-regulated amendment) as meaningless preface.

Before leaving that aside, here’s a memory from George Cochran’s con law class at Ole Miss, circa Spring of 1979.  Cochran had worked us through the Commerce Clause as understood by John Marshall, and one particular (extremely conservative) student would not stop arguing with him that Marshall’s understanding of commerce was overbroad and just had to be wrong.  Cochran was incredulous.  The next day, class started, and up goes the student’s hand.  He starts to say “Samuel Johnson’s dictionary defined commerce as…”  Before he could go further, Cochran inturupted:  “Who the hell is Samuel Johnson and why wshould I John Marshall care what he says about commerce?”  The student was struck dumb.  English majors all over the class tittered.

One thing I learned from Heller is that Justice Scalia cares a lot what Samuel Johnson’s dictionary says (he repeatedly looks to definitions from the dictionary in his opinion).

Heller’s done now, though, and we have the answer to what seems to me a close constitutional question.  And I realize that, saying it’s a close question, I’ve now invited raging, irrational furies who may well arrive shouting at my errora on the right to bear arms without talking rationally about what that error may be.  I’d rather leave the issue decided by Heller aside– it’s resolved!– and move on to the next questions.

The second and third question (hard to say which comes first, and it will depend on what case comes to the court next) are about the Incorporation Doctrine, and about what exactly the scope or extent of the Second Amendment right might be.  There are hints about both in Scalia’s opinion in Heller.

The Bill of Rights by its language and original intent was only a limitation on the federal government and not the states.  The passage of the Fourteenth Amendment changed this, at least say some; the concept of due process includes certain fundamental constitutional rights (such as the right to be free from unreasonable searches and seizures, or to be assured the right to counsel at trial, or to free speech or freedom of religion or association or the right to petition the government).  The prevailing view has been that only fundamental rights were “incorporated” by the Fourteenth Amendment, and others (e.g. the right to a jury in a civil trial, or grand jury rights) were not fundamental and did not apply to the states.

The workings of Incorporation Doctrine are murky, and there are a range of views, from the “some not all rights are incorporated” view to  that Justice Black held that the whole Bill of Rights was incorporated.  Yet others apparently hold the view that the Incorporation Doctrine has no basis in constitutional text or history and should be discarded.

And there’s the rub, because the two justices most hostile to the incorporation doctrine are Scalia and Thomas.  Scalia has attacked it in public presentations:

“I doubt whether that’s an accurate interpretation of it, but that’s what the court said,” was Scalia’s reply. “The court has interpreted that as essentially sucking up the Bill of Rights and applying the Bill of Rights against the states,” said Scalia. “And not the whole Bill of Rights, just some of the Bill of Rights, essentially those provisions that we like.” (It is true that the Supreme Court has only incorporated some but not all of the Bill of Rights to apply to the states. The Fifth Amendment’s requirement of grand juries in criminal cases and the Seventh Amendment’s guarantee of jury trials in civil cases, for example, have not been applied to the states.)

In the talk, Scalia also said the incorporation doctrine was responsible for some of the court’s “strange” decisions. “You know, can you have a creche and a menorah? Is it okay to have both a creche and a menorah and a Christmas tree? Or what if you have a Christmas tree and not a menorah? We never had these weird cases before, because it was not a matter of federal law. The federal Constitution did not cover it.”

So, are two judges (Scalia and Thomas), hostile to the Incorporation Doctrine, going to hold that the Second Amendment applies to the states?

In Heller, Scalia notes that a nineteenth century case had held that “The second amendment … means no more than that it shall not be infringed by Congress.”  In other words, it does not apply to the states.   Scalia also looked at Miller, the 1930s case holding that the ban against sawed-off shotguns did not violate the Second Amendment.  Many judges (and for that matter, I) have read Miller to say the Second Amendment did not confer an individual right; the Stevens dissent in Heller makes much of that.  Scalia states that Miller turns on the kind of weapon:

[I]t was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

One final note about Heller. Justice Breyer in his concurrence in Heller argued that even if the Second Amendment did confer an individual right, it did not confer a right to keep handguns.  That opinion was joined by Ginsburg, Souter, and Stevens.  So there are four clear votes that, if there is a right, it is limited.  And, as noted above, one might guess that there are two justices (if we expect consistency) who are hostile to incorporation.

That’s the context in which the case came before the Second Circuit.  The plaintiff was suing the State of New York to set aside the state’s ban of nunchuckas, alleging that the Second Amendment protected his right to keep nunchuckas.  He argued that he should be able to keep them to practice martial arts.  So, first,  the court had to decide does the Second Amendment apply to the states?  The Second Circuit’s job here is to look at Heller in the context of the Court’s existing precedent.  Here’s what they said:

The Second Amendment provides:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  U.S. Const. amend. II.  The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms.  See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right.  See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).  Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle.  See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states).  And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”  Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

I think anyone who is being intellectually honest would say these are close questions. A close look at what she’s actually done fails to support the attacks on her.

Saying “They’ll take my guns from my cold dead hand” doesn’t suffice to answer anything.  But yet it is concurring in that per curiam opinion that is Judge Sotomayor’s purported sin against the Second Amendment, and what seems to some to disqualify her.  Wingnut news outlets and Republican hacks are simply announcing she’s WRONG and hoping that it rallies the troops, brings in some money, and gives them a reliable issue for attack ads.

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