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More on Sotomayor and the Second Amendment:
Although I would guess that Sonia Sotomayor is not a big fan of Second Amendment protections, I think my co-blogger Dave Kopel is reading too much into Maloney v. Cuomo. Kopel writes that the judges in that case
seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right.
  I'm puzzled by the idea that merely using the word "confer" is somehow a "serious" misreading of DC v. Heller, given that it is the exact word that the Heller decision twice uses to state what the Second Amendment does. From Scalia's majority opinion, 128 S.Ct. 2783 at 2799:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.
And at page 2814:
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia").
The additional fact that Maloney v. Cuomo is a per curiam decision, and thus may not have been written by Sotomayor at all, suggests to me that David is reading too much into the decision for insight into Sotomayor's views on the Second Amendment.
ShelbyC:
I'd imagine "confer" is objectionable due to Cruikshank's discussion of the 2nd, which says something like "...not a right granted by the constitution, but existed before it and is common to free peoples everywhere"

Cruikshank seems to create a distinction between rights confered by the constitution and fundemental rights, which was incorporated into Heller.
5.26.2009 1:57pm
Soronel Haetir (mail):
I would also think a fair amount of the disdain stems from hanging an unsigned opinion on reasoning that has in the meantime been thoroughly discredited. To rely on Crookshank or Pressor without even examining later incorporation principals seems like an extremely lazy judicial out.
5.26.2009 2:03pm
ShelbyC:

I'm puzzled by the idea that merely using the word "confer" is somehow a "serious" misreading of DC v. Heller, given that it is the exact word that the Heller decision twice uses to state what the Second Amendment does.


It's probably not unreasonable to say that using the word "confer" in conjunction with a finding that the 2nd isn't fundamental, without discussing the "not a right granted by the constitution" discussion in Cruikshank is a serious misreading.
5.26.2009 2:05pm
J. Aldridge:
I'm puzzled by the idea that merely using the word "confer" is somehow a "serious" misreading of DC v. Heller, given that it is the exact word that the Heller decision twice uses to state what the Second Amendment does.

To be fair, Scalia wasn't exactly clear on the matter, either. Example: He says the "very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'"

Then says, "there seems to us no doubt" the Second Amendment "conferred an individual right to keep and bear arms."
5.26.2009 2:11pm
erp2 (mail):
"Sotomayor is not a big fan of Second Amendment protections" What does that mean? Will she rule against them? This appointment needs to go down the drain fast.
5.26.2009 2:11pm
OrinKerr:
ShelbyC,

I am confused by your comments. The Supreme Court in Heller said that the Second Amendment "conferred" the right, correct? And that sentence of Maloney accurately repeats that, noting that Heller said that the Second Amendment "conferred" the right, correct?
5.26.2009 2:14pm
ShelbyC:
OK,
Correct, and I think the wording in the DK post is inexact. The serious misreading of Heller is that the right is not fundamental. Despite the use of "confer" in Heller, Scalia is clear (as noted by JA above) that the 2nd doesn't confer any rights, it merely protects a fundamental right. The Maloney opinion doesn't make that clear. And I'm not signing on to DK's wording, but his point is valid.
5.26.2009 2:31pm
Steve:
I, too, find it outrageous that after Heller failed to recognize a fundamental right, Judge Sotomayor participated in a circuit court decision that also failed to recognize a fundamental right.
5.26.2009 2:33pm
GSC:
The per curiam point is a good one. In all likelihood, Pooler drafted it b/c she was the senior member of the panel. Not a certainty, but that is the general practice.
5.26.2009 2:45pm
ShelbyC:

find it outrageous that after Heller failed to recognize a fundamental right


Steve, how do you square the idea that Heller failed to recognize a fundamental right with the "this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." language from Cruikshank, incorporated into Heller?
5.26.2009 2:53pm
LarryA (mail) (www):
This is why the Founding Fathers debated over including a Bill of Rights in the Constitution. Once you define the list, everything else tends to get excluded.

The basic difference between the two philosophies is that if the Second Amendment "confers" a right to keep and bear arms, rescinding that amendment takes it away. If, as Scalia noted, "the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed'" then the right is not dependent on the Second Amendment.

I'd note that the First Amendment works the same way, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

OTOH, for many people "the Second Amendment gives us the right..." is shorthand for "the Second Amendment protects the right..." in much the same way they call magazines "clips," so I'd want more evidence before mounting a charge.
5.26.2009 2:54pm
shertaugh:
Orin:

Here's a question for you.

In assessing a lower-federal court judge's views (or perceived views, given they are bound by SCOTUS cases) in trying to figure what kind of SCT Justice s/he be, how do you factor in per curium opinions?

I ask because Ilya posted about a Takings case, where all we have is an unsigned summary order.

Also, from you clerking experiences on the 3d &SCT, how valid is the statement that "this judge or this justice believes X because, in an opinion joined by 4 to 8 colleagues, s/he wrote an opinion stating Y"?
5.26.2009 3:25pm
shertaugh:
Orin:

Sorry for the typo's post.

It read:

____________

Here's a question for you.

In assessing a lower-federal court judge's views (or perceived views, given they are bound by SCOTUS cases) in trying to figure what kind of SCT Justice s/he would appear to be, how do you -- ORIN KERR -- factor in per curium opinions?

I ask because Ilya posted about a Takings case, where all we have is an unsigned summary order.

Also, from your clerking experiences on the 3d &SCT, how valid is the statement that "this judge or this justice believes X because, in an opinion joined by 4 to 8 colleagues, s/he wrote an opinion stating Y"?
5.26.2009 3:28pm
Anon321:
Steve, how do you square the idea that Heller failed to recognize a fundamental right with the "this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." language from Cruikshank, incorporated into Heller?

In Heller's discussion of Cruikshank, the Court said:


The second amendment . . . means no more than that it shall not be infringed by Congress." 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers.


As I read this, the Court is saying that the Second Amendment didn't create a right to bear arms. That right existed before the ratification of the Constitution. But just because it existed doesn't mean that governments couldn't restrict it. Nor does it mean that courts could strike down laws that infringed the right. Under Scalia's view (again, as I understand it), a pre-constitutional right existed, but it was not until the Second Amendment formalized that right textually as an explicit limit to government power that the government lost the ability to infringe that right -- and likewise it was not until then that courts had the power to strike down such infringements. I think this is consistent with Scalia's view that unenumerated rights exist, but can't (or shouldn't) be enforced by courts.

Many people (myself included) find it odd to say that a right exists but cannot be enforced by courts. But my somewhat superficial understanding is that this notion was more common at the time of the founding.

There may also be a distinction between pre-constitutional rights generally and "fundamental" rights, which are perhaps enforceable by courts even absent constitutional text on point.

But the main point is that the Court's statement that the right to bear arms preceded the Second Amendment does not necessarily mean that the right is judicially enforceable absent a constitutional prohibition on infringing that right. In other words, only if the right is incorporated by the Fourteenth Amendment is it judicially enforceable against the states, even if it preexisted the Constitution.
5.26.2009 3:44pm
Steve:
Steve, how do you square the idea that Heller failed to recognize a fundamental right with the "this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." language from Cruikshank, incorporated into Heller?

I square it because the phrase "fundamental right" has a very specific meaning in the Court's jurisprudence, and when the Court wants to declare something a "fundamental right," I have never known them to have a problem using those precise words.
5.26.2009 3:46pm
ShelbyC:

I square it because the phrase "fundamental right" has a very specific meaning in the Court's jurisprudence, and when the Court wants to declare something a "fundamental right," I have never known them to have a problem using those precise words.


Huh. I'm not seeing a distinction between "fundamental rights" and "pre-existing" rights.

the Cruikshank opinion descriped "pre-existing" rights as comming "from those laws whose authority is acknowledged by civilized man throughout the world" I'm not sure how one justifies a distinction between that and "fundamental rights"
5.26.2009 4:27pm
cboldt (mail):
-- As I read this, the Court is saying that the Second Amendment didn't create a right to bear arms. That right existed before the ratification of the Constitution. But just because it existed doesn't mean that governments couldn't restrict it. --
.
It's common for appellate courts to cherry pick language from other opinions, in a way that creates a false impression of what the earlier case stands for. It is prudent to read the cited cases (sometimes layers deep), to discern the intellectual validity of the conclusion. It's necessary to distinguish intellectual validity from "force of law," or else the whole house of cards comes tumbling down.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Presser v. Illinois, 116 U.S. 252, 265 (1886)

Cruikshank described the force of right to assemble" portion of the 1st amendment in similar fashion to how it described the 2nd amendment.
The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
5.26.2009 4:43pm
Anon321:
I may be misunderstanding the point of your reply, but doesn't the block quote from Cruikshank support the reading that a preexisting right can be restricted by states unless the federal or state Constitution explicitly prohibits its infringement?

What does it mean when the Court says, "The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States."? That strikes me as saying something quite different than, e.g., because this right preexisted the Constitution, it cannot be infringed, whether or not we have a textual prohibition on its infringement.
5.26.2009 4:58pm
cboldt (mail):
-- I may be misunderstanding the point of your reply, but doesn't the block quote from Cruikshank support the reading that a preexisting right can be restricted by states unless the federal or state Constitution explicitly prohibits its infringement? --
.
Not only can it be read that way, that's the way that the courts have been reading and applying it. As expressed at the time, it was meant to reinforce the notion of limited power of the federal government; and not as endorsing or finding a power of the states to suppress the people's right to peaceably assemble or petition the government. Presser, which follows Cruikshank, builds on the theoretical construct of co-existing constitutions, as applied to a (so-called) free and self-governing people and the power of a government (in general) to disarm the populace.
5.26.2009 5:22pm
Brett Bellmore:

Once you define the list, everything else tends to get excluded.


Except that, in the case of the 2nd amendment, we're talking about a right which WAS included in the list, but which some people want to exclude anyway. Which suggests the problem isn't having a list, it's that some people just don't like the concept of rights the government has to respect.
5.26.2009 7:16pm
Oren:

I may be misunderstanding the point of your reply, but doesn't the block quote from Cruikshank support the reading that a preexisting right can be restricted by states unless the federal or state Constitution explicitly prohibits its infringement?

That is correct. The Founders presumed that the States themselves would police their own violations of natural rights much more effectively than was actually the case.
5.26.2009 7:55pm
katwoman (mail):
The second amendment clearly was written to "affirm" the right of the people to keep and bear arm. But, obviously truly free people do not need government permission to keep and bear arms. In fact, the very idea of gun control in a free society is an oxymoron.

Remember however too that the states where reluctant to join the federation and so wanted to make it clear that they would and could pick up arms in self-defense as they did during the revolutionary war against any enemy foreign or domestic. But more importantly that just this is that the right to keep and bear arms is also discussed in the constitution of nearly every state and in the vast majority of case these document specifically recognize an individual right to keep and bear arms for self-defense as well as for the common defense.

The 14th amendment has long since incorporated all of the individual rights affirmed in the federal bill of rights to all American citizens. I therefore find it ironic that Sotomayor who is an Hispanic woman would choose to selectively ignore this important fact. But then again, liberal justices think they have the prerogative to legislate from the bench so selectively "interpreting" the supreme law of the lands probably seems completely normal to them.

At the end of the day Roe v. Wade is what is really at the core of this judicial nomination. Logic and the strict adherence to the constitution dictates that Roe v. Wade needs to either be overturned and sent back to the states or made into federal law by congress. The very idea of continuing to appoint liberal justices like Sotomayor just to protect a bad SCOTUS decision is an obvious threat to our national sovereignty. For this reason alone it needs to dealt with per the constitutional provisions and those elected officials who fail to abide by the constitution they swore to uphold and defend need to charged with treason and removed from office. In other words, if Mr. Obama and the Senate appoint this activist judge to the bench they should all be removed from office immediately ad the failure of the American people to hold them accountable is truly a failure of the greatest society in history.
5.27.2009 9:24am

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