With the confirmation hearings for Judge Sonia Sotomayor just around the corner, Republicans are honing their message on a number of fronts. Most objections note Sotomayor’s strong affinity for race- and gender-conscious jurisprudence, but many senators are growing concerned about her stance on Second Amendment rights.
Judge Sotomayor believes, as Byron York noted in his July 10th column, that the Federal Government cannot constitutionally deny citizens the right to bear arms, but that the states may do so. In other words, Sotomayor does not believe in the primacy of the Constitution over state laws that infringe on the Second Amendment.
The Doctrine of Incorporation subjects state laws to constitutional limitations, and was established by the Fourteenth Amendment, which holds that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Before the adoption of the Fourteenth Amendment in 1868, the Supreme Court held, in Barron v. Baltimore (1833), that the Bill of Rights applied only to federal law, and that states could pass laws according to their own constitutions. But through a series of court decisions through the late 19th century, the Supreme Court came to understand the Fourteenth Amendment as a base-line enumeration of basic rights. That is, the court agreed that the Bill of Rights should prescribe the basic liberties afforded to all Americans (as individuals), and that states could afford their citizens more freedoms than those offered by the Constitution, but could not infringe on basic constitutional liberties.
Far from incorporating all constitutional rights against the states, however, the Supreme Court selectively and affirmatively incorporated various amendments—and specific liberties within those amendments—in various cases over the last century. The First and Fourth Amendments have been most comprehensively incorporated.
The Second Amendment has a spotted history of incorporation. It has been incorporated against the states under the jurisdiction of the Ninth Circuit Court of Appeals, but federal appellate courts in the Second and Seventh circuits have rejected incorporation.
This is where Sotomayor’s opinions on Second Amendment incorporation could affect the rights of Americans to keep and bear arms. Should she be confirmed, she will likely rule against Second Amendment incorporation.
The two appeals court cases ruling against incorporation—NRA v. Chicago and Maloney v. Rice—are slated to come before the Supreme Court soon, though the court has not officially decided to take up either. During her tenure on the Second Circuit Court of Appeals, Judge Sotomayor joined the majority opposing Second Amendment incorporation in Maloney v. Rice, which ruled in favor of a New York State weapons control law forbidding the appellant from carrying nunchaku, a weapon used in martial arts. Though the case did not specifically deal with firearms, Sotomayor’s decision indicates that she does not consider the Second Amendment valid for state incorporation.
NRA v. Chicago will be the most prominent Second Amendment case to reach the Supreme Court in the near future, as it challenges a strict Chicago ban on handguns, similar to the District of Columbia ban the court overturned in its landmark decision last year, D.C. v. Heller.
The 5-4 majority in Heller ruled that constitutional protections for gun owners superseded District law. A Supreme Court decision on NRA v. Chicago will address the same question: do constitutional liberties override state laws that infringe on those liberties?
Justice Souter, whom Sotomayor is replacing, dissented from the majority in Heller, so the makeup of the court will not drastically change in its view of the right to bear arms. But Sotomayor’s confirmation would strengthen the ranks of Supreme Court justices that oppose the incorporation of Second Amendment rights. The 5-4 majority in Heller was too close for comfort, and Republicans worry that Sotomayor could further tilt the scales of the court in favor of gun control.
With landmark cases looming, expect Senate Republicans to be wary of Sotomayor’s stance on the Second Amendment, and to challenge her on her positions during next week’s confirmation hearings. Republicans must pressure moderate Democrats and Democrats from traditionally right-of-center states, or states with high rates of gun ownership—such as Montana and West Virginia, both of which are represented by two Democratic Senators—to oppose any candidate that does not favor Second Amendment incorporation.
