Nelson Lund on Sotomayor's Second Amendment Decision:

I had previously been inclined to think that Maloney v. Cuomo, Judge Sotomayor's decision to reject incorporation of the Second Amendment against the states was not a big deal, because she was bound by 19th century Supreme Court precedents. However, my colleague Nelson Lund, a leading Second Amendment scholar, has a good column that leads me to think there is more here than meets the eye:

Second Circuit Judge Sonia Sotomayor recently held that the Constitution does not protect the right to keep and bear arms against infringement by state and local governments. Her defenders maintain that she was merely applying settled precedent, which only the Supreme Court itself is authorized to reconsider. This is a half truth that conceals more than it reveals.

Last year, the Supreme Court resolved a longstanding debate by holding that the Second Amendment's right to keep and bear arms includes the right of American citizens to have weapons for personal self defense....

In several nineteenth century cases, the Supreme Court held that the individual liberties protected by the Bill of Rights, including the right to keep and bear arms, are not among the "privileges or immunities" protected against state abridgement by the Fourteenth Amendment. Whether this was a correct interpretation or not, the Supreme Court has adhered to it ever since, and the lower courts are required to accept it.

In the twentieth century, however, the Supreme Court decided a series of cases in which it concluded that most of the rights protected against the federal government by the Bill of Rights are also "incorporated" against the state governments by the Fourteenth Amendment's Due Process Clause. The Court has analyzed each right separately, but the legal test that eventually emerged focuses on the significance of the right at issue in the Anglo-American tradition of ordered liberty. The Supreme Court has not yet reviewed an incorporation case involving the Second Amendment, but its Second Amendment opinion last year pointedly noted that a due process analysis is now "required" under its twentieth century caselaw.

Judge Sotomayor ignored this instruction from the Supreme Court. She decided that her court was not required to perform this due process analysis because the nineteenth century decisions under the Privileges or Immunities Clause had settled the issue. Several circuit courts had reached the same conclusion before last year's Supreme Court's decision, and one other circuit court reached the same conclusion just this month. Her defenders can therefore plausibly argue that her decision was not wildly out of the judicial mainstream.

It is not true, however, that Judge Sotomayor was faithfully following precedent. The Supreme Court has never said that the Due Process Clause does not "incorporate" the right to keep and bear arms. That Court has never said that the nineteenth century Privileges or Immunities Clause cases foreclose due process analysis. Nor has it ever said that the lower courts are supposed to "wait" for the Supreme Court to rule on due process incorporation. The Supreme Court's twentieth century incorporation cases are the most relevant precedents, and Judge Sotomayor completely ignored them.

As Nelson points out, one of the disturbing aspects of Maloney is not just that Sotomayor may have gotten it wrong, but that she dispensed with a major constitutional issue in a short, cursory opinion. This is consistent with her actions in Didden v. Village of Port Chester and Ricci v. DeStefano, two other cases where she dismissed important constitutional rights claims that she was unsympathetic to - both with little or no analysis. Sotomayor's neglect of the Supreme Court's admonition to use Due Process Clause incorporation analysis in Maloney is remarkably similar to her neglect in Didden of the Supreme Court's statement in Kelo v. City of New London that "pretextual" takings are still unconstitutional.

I don't think this pattern is the result of laziness or incompetence. Her overall record clearly shows that Judge Sotomayor is neither. Rather, I fear that she genuinely believed that these three cases were essentially "slam dunk" decisions and that the side she ruled against didn't have any serious arguments. If so, that attitude reveals a great deal about her views on property rights, the right to bear arms, and reverse discrimination claims.

UPDATE: Some commenters point out that a Seventh Circuit panel including judges Posner and Easterbrook reached a similar conclusion. My answer to this claim is simple: They were wrong too, for reasons explained in detail by Eugene Volokh in this post. The fact that a conservative or Republican-appointed judge may have committed the same sort of egregious error as Sotomayor in no way excuses it. Moreover, unlike Sotomayor's opinion, the Seventh Circuit decision does at least consider the Due Process Clause incorporation issue (though, in my view, not nearly as thoroughly as they should have).

UPDATE #2: I just realized that my original post fails to link to Nelson's column. I have corrected the error.