I am watching Fox News and they are talking about Judge Sotomayor, and anchor Gregg Jarrett says that Sotomayor ruled this year that the Second Amendment doesn't apply to the states. Then he says, "as a lawyer, I find incredibly puzzling ... I don't understand where she was coming from."
Perhaps he can read my primer on incorporation or my prediction that selective incorporation is going to be officially killed soon. (And not for nothing, but I don't make predictions often.)
Granted, he's a laywer and I am not, but maybe he can learn something from little ol' me.
This concept is important to understand in regards to the Second Amendment, and I'll explain it briefly: the Fourteenth Amendment says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Supreme Court, however, decided last century that which "privileges or immunities" the state cannot abridge are to be decided selectively by the Supreme Court. And the Supreme Court has never "incorporated" the Second Amendment.
Now, I am not saying that Sotomayor was correct; another court this year in Nordyke v. King came to a different conclusion (that the "test" for selective incorporation also means the Second Amendment should be incorporated). But it's all guesswork: the Supreme Court does the incorporation in the end. It's a ridiculous way of making law (and contrary to the clear language and intent of the Fourteenth Amendment), but it's what we've got, and Sotomayor's legal reasoning in this case is sensible, according to precedent.
And I hope she gets overturned.
It's also worth noting that selective incorporation is despised by many on the left and the right. Many on the left want to require states to recognize all sorts of "privileges and immunities." If a federal court recognizes a right to gay marriage, for example, then this could be binding on the states through the 14th Amendment, but with selective incorporation, it's not. So you'll see some liberal lawyers helping to kill selective incorporation, even joining forces with the NRA.
Cross-posted on <pudge/*>.
Posted by pudge at May 28, 2009 12:59 PM | Email ThisI read your background posts Pudge. You Rock!
Posted by: Amyzzon on May 28, 2009 02:12 PMI guess that means the Supreme Court decisions don't either. That might also mean the entire Constitution. Might as well stop calling Obama our President.
I cannot believe Democrats would recommend such a stupid lady. I am latino and ashamed from her stupidity.
Posted by: Joe on May 28, 2009 04:29 PMAfter the Fourteenth Amendment, our Supreme Court did not -- as they should have -- apply the Second Amendment to the States. While it is stupid that they did not do so, it's not stupid for Sotomayor to abide by the precedent of the Supreme Court.
As much as you might dislike Sotomayor, this case is NOT an example of her doing something wrong.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No 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.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
What are these "privileges and immunities" that States cannot abridge? I say, as Justice Bl;ack did, that it includes the Second Amendment. And we are in good company, for Senator Howard -- who introduced the Fourteenth Amendment to the Senate, over 140 years ago -- said that at a minimum these privileges and immunities include "the personal rights guarantied and secured by the first eight amendments of the Constitution." Which includes, of course, the Second Amendment.
As Black said, "it is 'exceedingly peculiar' to read the Fourteenth Amendment differently from the way I do."
Please read my link from above for more details.
April 20, 2009, under Nordyke v. King the Court of Appeals for the Ninth Circuit held that the Second Amendment was incorporated
Posted by: Joe on May 28, 2009 05:31 PMI believe that all the Bill of Rights are incorporated whether or not a court says.
Of course. Most people who look at what the 14th Amendment says, and think about what the words mean -- to us now and to the people who wrote and ratified it -- will come to that conclusion. However, as a federal judge, Sotomayor is bound by Supreme Court precedent.
You would expect, I presume, a federal judge to say the Second Amendment means that we have a (federal, at least) individual right to keep and bear arms, even if the judge disagreed with the decision in Heller. Similarly, the judge essentially needs to follow the doctrine of selective incorporation even if they disagree with it.
They can certainly interpret them however that would be a gross injustice to citizens to say that the Bill of Rights does not apply to citizens.
That's what they have said, for well over 100 years. And it has been an injustice. And I think it is coming to an end, soon. I think Heller will be the gateway to the final nail in the coffin of selective incorporation.
Right, as I mentioned in my post. But they did not disagree with the doctrine of selective incorporation: they simply said that the Second Amendment fit the same test that allowed incorporation of the Sixth Amendment. That any test other than "it is a recognized privilege of the citizens of the United States" needs to be applied at all is, as you say, a gross injustice, one that the court in Nordyke does not rectify, but, rather, follows.
April 20, 2009, under Nordyke v. King the Court of Appeals for the Ninth Circuit held that the Second Amendment was incorporated
Perhaps, but I've seen no direct evidence of this yet. Do you have any? Beyond the fact that Obama chose her and liberals like her ... that's indirect evidence. Do you have evidence from her rulings? I do not.
Well, in essence, I think you're right, but since she did not publish a serious opinion but merely affirmed the lower court decision, and since the lower court opinion the decision was based on is unpublished ... we don't really know the basis of her opinion. (Which is in itself a serious problem.)
So I can't agree that her opinion was incorrect, because I cannot tell what it was based on. Maybe she was properly upholding precedent. I cannot know.
I did the same thing with Harriet Miers. I reserved judgment until her hearings (we didn't have opinions from her that we could read, as we do with Sotomayor). Of course, her hearings never happened, which is probably a fine thing, and those hearings never happened because some people opposed her much earlier than I did.
So to each his own. I will wait until I get more information, which is going to happen before she's voted upon by the Senate's judiciary committee. Just no reason for me to rush.
Posted by: pudge on May 28, 2009 06:43 PM"anchor Gregg Jarrett says that Sotomayor ruled this year that the Second Amendment doesn't apply to the states."
Posted by: MikeBoyScout on May 28, 2009 06:45 PMSotomayor was part of the three-judge Second Circuit panel that affirmed the district court's ruling in Maloney v. Cuomo.[63] Maloney was arrested for possession of nunchakus, which are illegal in New York; Maloney argued that this law violated his Second Amendment right to bear arms. The Second Circuit's per curiam opinion noted that the Supreme Court has not, so far, ever held that the Second Amendment is binding against state governments. On the contrary, in Presser v. Illinois, a Supreme Court case from 1886, the Supreme Court held that the Second Amendment "is a limitation only upon the power of Congress and the national government, and not upon that of the state." With respect to the Presser v. Illinois precedent, the panel stated that the recent Supreme Court case of District of Columbia v. Heller (which struck down the district's gun ban as unconstitutional) "does not invalidate this longstanding principle." Thus, the Second Circuit panel upheld the lower court's decision dismissing Maloney's
Posted by: Joe on May 28, 2009 06:52 PMWe have racism and against the Bill of Rights.
Posted by: Joe on May 28, 2009 06:56 PMThis is in no way "against the Bill of Rights." That was the Supreme Court's ruling in creating selective incorporation, and Sotomayor cannot reasonably be blamed for upholding that precedent. Your instincts about her don't mean that we should ignore these facts.
Link to: http://www.chicagotribune.com/news/local/chi-blackboxmay27,0,6131769.story
I don't know whether the article referenced above relates to King County, but suspect either KC or Seattle. The article mentions Seattle as a place where a controversial Chicago waste management guy went after being embroiled in a corruption scandal. So, what else is new? Anyway, I wondered if any of you have heard of him?
A quick google search shows that Bart Lynam, who is the former Chicago civil servant associated with the waste management fiasco there, runs a sludge company out of Seattle and contributes to Seattle and Edmonds democrat coffers.
Posted by: deadwood on May 28, 2009 07:46 PMI never said anything about Presser. I also didn't say right or wrong.
She absolutely is a poor judge. She believes in legislating from the bench. She even almost said that.
I believe that there is more than instinct which I based my decision upon. A decision which you say is ok in one remark and then want to question in another remark later one. However you want to discuss instincts because you have nothing but your own instincts. So what.
Posted by: Joe on May 28, 2009 08:26 PMPudge can be awful hard headed, but at least here he has it right.
Incorporation is how the Supreme Court has ruled. That makes it precedent until the Supreme Court decides a case where State's rights to regulate (or ban) guns and the 2nd amendment are at question again in a case before them. That is if they decide to take the case, which is not guaranteed.
Posted by: deadwood on May 28, 2009 10:23 PMPudge you are so entrenched in your technicalities you are speaking about things as if I was even interested in them or even metioned them.
They are not technicalities, they are important points of law. And you did mention them.
I never said anything about Presser.
Yes, you did, in your quote.
She absolutely is a poor judge. She believes in legislating from the bench. She even almost said that.
I'd like some direct evidence that she does believe this. If you find any at all, let me know.
""Well, I hope it is this: The man showed up with a set of principles, and he was unwilling to compromise his soul for the sake of popularity," he said."
I know this is a bit of an aside but I agree with this statement by former President Bush in yesterday's speech. As President, he indeed was that.
Posted by: PIFan on May 29, 2009 05:56 AM@19 Joe on May 28, 2009 06:52 PM,
If we are discussing Maloney v. Cuomo, then it tells us a few things about Satomayor which are contrary to the anti-Satomayor talking points.
(1) The per curiam opinion shows her not to be a "bully", and able to co-author on a politically hot topic.
(2) The ruling and the opinion are in no way activist, or 'liberal' as it simply affirms the 123 year old Presser v. Illinois, and citing the SCOTUS's recent decision in District of Columbia v. Heller authored by none other than Scalia.
Whether the ruling makes political sense, it is a fine example of a judge deciding the issues based upon settled case law.
As to Gregg Jarrett's puzzlement with the ruling .... I find it inexplicable. Maloney v. Cuomo is as straight forward (and fine!) example of stare decisis as one could find.
Posted by: MikeBoyScout on May 29, 2009 10:03 AM1. This is a good example of how legal issues are not easy. If the 14th Amendment wanted to incorporate all the rights of the bill of rights, why didn't it just say so? Or list them by number? Then it would be clear. But since it talked of priv and im of US citizens it left it a bit unclear so the Court adopted the incorporation approach. But either way, even if the court had adopted the approach pudge favors, the court is making law and in so doing it's considering what makes sense and what the effects will be and all kind of policy considerations.
2. Facing two supreme court precedents one against incorporation one clarifying 2d amendment as to DC....Sotomayor was appopriately restrained, not activist and it would have been too activist and going beyond precedent and "legislating from the bench" to apply Heller to NY state.
3. There's a third issue which is pretty interesting. If 2d amendment applies to numchuks, and other weapons of any kind, why wouldn't it apply to grenades? bayonets?
TNT ? Plastique?
Bazookas? Tanks?
Nuclear weapons?
If you follow the plain and simple words or the notion that everything is so simple there's no legal issue-deciding and no law-making and no policy consdierations, then you have to say yes, why of course, "arms" includes any arms, even a hydrogen bomb.
It seems to me people like Newt are putting their foot in their mouth when criticizing Sotomayor on the Ricci verdict. Is Newt really stating that she should have thrown the current law out and "made" law from the bench? Yes, Newt may have issue with the verdict, but the issue should be with the laws the city was operating under not in the judges who had to abide by the laws that were written.
Posted by: tc on May 29, 2009 02:42 PMYeah, I'm sure that one will go over really, really well with the cops around the state!
Posted by: Politically Incorrect on May 29, 2009 03:23 PMBottom line, it's available.
So if one wants to judge her by this case, one would probably want to read the trial court decision that she cites with approval.
Until I can read the actual reasoning behind the decision, probably not. I dislike basing my opinion on the opinions of others.
P.I.: If the Second Amendment doens't apply to states, then the only people who can have guns are the military and other FEDERAL government folks.
No, it doesn't. Saying the Second Amendment doesn't apply to the states does not mean no one has the right to in a state to have guns, it means that this decision is up to the states, rather than the Constitution.
In fact, right now, that is the law, according to the federal government: the Second Amendment DOES NOT apply to the states. So some states, like MA and NJ, severely restrict gun ownership, while others, like WA, do not.
Thanks and bravo to pudge for discussing a legal issue with reasoning.
I always do. You could, for once, follow suit.
If the 14th Amendment wanted to incorporate all the rights of the bill of rights, why didn't it just say so?
Because it was completely obvious that they were included. If "privileges or immunities of the citizens of the United States" does not include the first eight amendments of the Constitution, then what DOES it include? And as Senator Howard said -- and you obviously didn't read my other posts on the subject -- it was not intended to be exclusive.
But since it talked of priv and im of US citizens it left it a bit unclear so the Court adopted the incorporation approach.
You don't know what you're talking about. That is not what happened at all. They adopted selective incorporation because they thought full incorporation would lead to chaos, not because there was any confusion about the meaning of the text ... because there wasn't.
even if the court had adopted the approach pudge favors, the court is making law and in so doing it's considering what makes sense and what the effects will be and all kind of policy considerations
False. Again, you obviously didn't read my other posts. Justice Black was very clear in his dissent that he was considering what the actual meaning of the text was, not what "makes sense" and not what the "effects" would be.
Posted by: pudge on May 29, 2009 07:11 PMyou don't need to keep saying things like "obviously you didn't read my post." That's an ad hominem attack and doesn't answer any questions.
Let me be more clear:
1. when they said it would lead to chaos, they are using policy considerations.
2. When you can find that kind of reasoning time after time from all kinds of judges, liberal or conservative, it proves my point.
3. If you have a contract that says the following I would suggest you get another lawyer.
"Purchase and sale agreement.
1. Purchaser pudge shall have the following bill of rights. [insert a list, 1-8]
2. Purchaser pudge shall be entitled to sue if any privileges or immunities under this psa are violated."
Because you should change the term "privileges or immunities" to "rights". Indeed, we commonly say that PRIVILEGES ARE NOT RIGHTS pudge. That distinction is very clear in the law.
It's clear when we note that driving is a privilege, not a right. It's clear when a parent tells his kid, they have privileges, not rights. In fact the very words about guaranteeing privileges are sort of unclear for this reason.
Now in the majority decision you refer to (I admit it, I haven't read it recently) I am sure they do not say "well the words are clear and we are disregarding them because of the effects."
the notion the words are clear are yours, and the dissents.
And you will find over and over and over and over in all appellate and supreme court decisions that words are clear to some and not clear to others -- with liberal and conservative judges often finding the words not clear -- and I guess your whole position boils down to asserting that the words are always clear -- and that's just wrong.
If it were correct, law clerks just out of law school could decide these things.
I don't find the priv. and immunity clause clear a majority of 19th century judges and hordes of judges since then agree so I think it's pretty clear -- they are not clear.
Now let's move on to the second amendment pudge. It refers to "arms." That includes ... all arms. Not some arms, not dangerous arms, not arms useful in the hands of a 18th c. militia, but just arms.
So your position is that that includes grenades, TNT RPGs, bazookas, tanks and nuclear weapons, so under your view, no state can prohibit and the federal govt. can't prohibit anyone from having a hydrogen bomb.
Correct?
That's the plain meaning. It's clear isn't it?
Posted by: Torture lawyer on May 30, 2009 09:14 AMyou don't need to keep saying things like "obviously you didn't read my post."
You don't to make false claims that were answered in my post.
when they said it would lead to chaos, they are using policy considerations.
This claim is a straw man fallacy.
If you have a contract that says the following I would suggest you get another lawyer.
This claim is a red herring fallacy.
Because you should change the term "privileges or immunities" to "rights".
This claim is a red herring fallacy.
Indeed, we commonly say that PRIVILEGES ARE NOT RIGHTS pudge. That distinction is very clear in the law.
Actually, no, it's not. You don't know what you're talking about and you're making it up as you go along.
It's clear when we note that driving is a privilege, not a right.
They didn't say that 140 years ago. I feel embarrassed for you that I even need to point out this fact.
Now in the majority decision you refer to (I admit it, I haven't read it recently)
You've never read it. Please don't be dishonest.
I am sure they do not say "well the words are clear and we are disregarding them because of the effects."
Of course not. No jurist is ever that honest when they are ignoring the law.
the notion the words are clear are yours, and the dissents.
And the people who wrote, sponsored, and ratified the 14th Amendment.
Now let's move on to the second amendment pudge. It refers to "arms." That includes ... all arms. Not some arms, not dangerous arms, not arms useful in the hands of a 18th c. militia, but just arms.
As you did with "pirivleges," you are reading 21st century use of the words into the original understanding of the meaning of the words. That's an invalid interpretive methodology.
So your position is that that includes ...
No. You're committing yet another straw man fallacy, and you've obviously not read the Heller decision. You should. In particular: "Miller’s holding that the sorts of weapons protected are those 'in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." That is what the historical record shows "arms" meant to the people writing and reading the Second Amendment at the time, which is what is of primary importance in determining a word's meaning in law.
Posted by: pudge on May 30, 2009 10:34 AM