Tuesday, July 21, 2009

Sotomayor and the 2nd

One opinion that the Repubs seized on in the Sotomayor hearings was Maloney v. Cuomo (link). In that decision, she authored an opinion that was absolutely correct in holding that the Heller 2nd Amendment decision did not apply to the states. If you are completely conversant with 14th Amendment incorporation, or aren't interested in legal geekiness, you may stop reading now.

In The Paper Chase, the imposing Prof. Kingsfield tells his first year students that "You come in here with a skull full of mush, and you leave thinking like a lawyer." I used to think that was crap until I realized that I think like a lawyer. That is what makes explaining 14th Amendment incorporation, which to me seems so easy and obvious, seem so difficult.

First of all, something that there is NO argument about. That FACT is that the so-called Bill of Rights applies BY ITS OWN TERMS only to FEDERAL matters. We have wacko sites that give you headlines that "Sotomayor Ruled That States Do Not Have to Obey Second Amendment." Yup. That woman hates you gun freaks who demand the right to vaporize deer with shoulder mounted rocket launchers. The LAW on this, which Judge Sotomayor followed, was absolutely correct.

On incorporation--the first 10 amendments apply only against the FEDERAL GOVERNMENT. Beginning in the late 19th century, the Supreme Court decided that certain rights described in the Bill of Rights could be "incorporated" or made applicable against the states. Never has the Supreme Court decided so w/the 2nd--that was not an issue given that DC was federal and the 2nd applied.

The question is not whether Heller is binding but rather whether individual gun ownership is a fundamental right that should be applied against the states.


jimbow8 said...

Not being a lawyer, I'm not sure I understand completely. According to the cns article that you link, "The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation." Is incorporation something that the SCOTUS must explicitly apply to each amendment? Must they specifically incorporate the 2nd amendment? Doesn't the fact that the other nine have been incorporated make it easier to incorporate the 2nd, or at least imply that they will? Is it an easy process?

Peter said...

Actually they do, especially given that there is old but still valid Supreme Ct precedent expressly stating that it DOESN'T apply. And parts of the 8th have not been applied either.

Peter said...

I don't think it would be a difficult process for this court, and all the right-leaning votes are young and spry by SCOTUS standard. What they need though, is a case before them to do it. That is, we need a case where a gun ban has been invalidated to make it all the way up to them. Absent a "case or controversy" nothing happens. In Heller even if they expressed their view on the 14th it wouldn't have mattered because that issue was not before them.