This is a bit of bad news from Sen. Jim DeMint:
In my meeting with Sotomayor, she wouldn’t back away from her ruling that right to bear arms applies to just federal land, not the 50 states
15 thoughts on “Sotomayor on Incorporation of the Second Amendment”
Comments are closed.
Well, the good news is she’s replacing someone who likely wouldn’t vote to incorporate anyway.
The bad news is that we get yet another justice who lets their personal preferences get in the way of their juris prudence. Even the freaking LA Times, no fan of the second amendment, thinks it should be incorporated.
Oh boy.
I’ve never understood this logic. If it only applies to the federal government, then why is there so little federal property where firearms are not banned?
What’s obnoxious about this is that it’s defensible, for an appellate court judge, on pure stare decisis grounds. Cruikshank held that it didn’t apply to the states, and the Court still cites to Cruikshank as if it’s good law. QED.
Of course, Cruikshank was decided in 1875 just two years after Slaughter-House Cases, which gutted the Privileges And Immunities Clause as a vehicle for applying the substantive protections of the Bill of Rights to the states. Selective incorporation wasn’t on the table — it’d be another 50 years before the Court selectively incorporated the First Amendment. The Court has never actually addressed the selective incorporation of the Second Amendment — Cruikshank isn’t really on point. But Cruikshank nevertheless provides a defensible “out” for the intellectually dishonest and the analytically lazy.
I am not sure I understand her position. Does she mean the second amendment only prohibits national government infringement on “federal” territories and parks but allows it to interfere with our right while on State property, or does she mean the second amendment only prohibits the national government everywhere but not the State governments anywhere? The former would be appalling, the latter sufferable.
I seem to remember that Sotomayor was involved in the Chicago lawsuit at the appellate level, so if she is elevated to the supreme court before that case reaches it, she would have to recuse herself from hearing it there. We would likely win that case 5-4 anyway, but without her, we would win 5-3. The problem is that decisions made without a full slate of justices do not set precedent.
I could be wrong, but that would be a clever way to deny a victory to the gun-rights people.
Any lawyers here?
Billll, how was she involved in the case? She’s from the Second Circuit and that covers Connecticut, New York, and Vermont.
Well, I did say I could be wrong. I guess it was the nunchuk case in NY that she ruled on, now that you remind me.
The lawsuits are flying thick and fast. You need a program to keep them all straight.
Yes, they definitely are. And for anyone reading, a reminder about the source of funding for most of them. :)
Look on the bright side: by Sotomayor’s logic, no amendment to the constitution applies anywhere beyond the extremely limited parcels of exclusively federal lands in the US. That means no More 16th Amendment! NO MORE FEDERAL INCOME TAX! No more 14th Amendment! Illegal aliens who give birth to children in the US no longer have any right to stay here! No more 17th Amendment! State governments will get to pick Senators again! HOO-RAY for Sotomayor’s fractured logic!
Does this mean she is for or against the NFA, GCA 68, Hughes amendment, import bans, the ATF, NICS, FFL licensing, and form 4473?
Presumably she is in favor of federal meddling on a statutory basis. The BOR is a collection of negative rights which the feds are not allowed to infringe. Federal statutes represent federal infringements.
I found the refrence:
This past January, the Second Circuit issued its opinion in Maloney v. Cuomo, which Sotomayor joined, ruling that the Second Amendment does not apply against state and local governments. At issue was a New York ban on various weapons, including nunchucks.
The same cautions apply here, although there could be some surprises. If M v C went to the Supremes, and Sotomayor was on the court, the decision would be crippled by her absence if she kept out. This would not prevent the court from subsequently hearing the Chicago case which a 5-4 win would carry full weight.
If she unethically does not recuse, the 5-4 win for our side would result in a win for us and a personal setback for her.
Upon further consideration, as they say, Sotomayor is right. The Second does not apply to the states as it has not been incorporated by the Supreme court. That such a step is necessary, is another topic, but since that’s the way we’re doing it, then that’s the way it is.
A better question to ask would be if she favors incorporation of the second, which would (rightly) get a smoke and mirrors answer at best. A judicial candidate knows better than to call decisions in advance, before hearing the actual case.
So does that mean we all get to go illegal alien hunting at Big Bend National Park?