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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.

Gerard Magliocca (mail):
It took Posner and Easterbrook one week after oral argument to reach the same conclusion. Should they be criticized as well?
7.13.2009 3:17pm
And then? (mail):
Are you going to whine about it when you're a witness this week? "She framed her opinion in a way I didn't like!"
7.13.2009 3:20pm
troll_dc2 (mail):

Her overall record clearly shows that Judge Sotomayor is neither lazy nor incompetent. 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.



Perhaps you are right, but no one knows. You have not talked with her; you do not know the assumptions behind her rulings or the means by which she expressed them. So you do not know what is "reveal[ed]" (and neither do I). When she is confronted with a specific case with specific facts, we will know more.

But it cannot be gainsaid that this blog reveals guides to how you think.
7.13.2009 3:23pm
Ilya Somin:
It took Posner and Easterbrook one week after oral argument to reach the same conclusion. Should they be criticized as well?

They signed on to a much more thorough opinion than Sotomayor, one that did at least consider the Due Process Clause.
7.13.2009 3:26pm
Ilya Somin:
Are you going to whine about it when you're a witness this week? "She framed her opinion in a way I didn't like!"

No, but I will point out that she wrote a poor opinion that did not give the issue anything resembling the consideration it deserves.
7.13.2009 3:26pm
Glen Alexander (mail):
It took Posner and Easterbrook one week after oral argument to reach the same conclusion. Should they be criticized as well?
Yes. At least they took the time to write a cursory opinion. But when combined with their hostile oral arguments, it was clear that they, too, thought it was a slam dunk — and that their personal policy preferences drove their decision.
7.13.2009 3:27pm
cboldt (mail):
-- It took Posner and Easterbrook one week after oral argument to reach the same conclusion. Should they be criticized as well? --
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Yes.
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The precedent that is held out as "compelling" the outcome of upholding state bans on keep and/or bear arms is a parade permit case, Presser v. Illinois. The panel Sotomayor participated in referred to Circuit precedent, Bach v. Pataki.
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Bach v. Pataki, 408 F.3d 75 (2nd Cir 2005): "Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states." cert. denied, 546 U.S. 1174 (2006)
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Presser v. Illinois, 116 U.S. 252 (1886): ".. the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."
7.13.2009 3:27pm
Ilya Somin:
Perhaps you are right, but no one knows. You have not talked with her; you do not know the assumptions behind her rulings or the means by which she expressed them. So you do not know what is "reveal[ed]" (and neither do I). When she is confronted with a specific case with specific facts, we will know more.

But it cannot be gainsaid that this blog reveals guides to how you think.


Really? You have not talked with me; you do not know the assumptions behind my posts, and so on. You won't really know anything about me or my attitudes until I am "confronted with a specific case with specific facts." Of course, such a conclusion would be silly. What I think about these issues can be surmised with a fair degree of accuracy from my posts. So too with Sotomayor's attitudes about them, which can be surmised from her judicial opinions.

I think it's reasonable to assume that if a judge disposes of a major constitutional issue in a short, cursory opinion with little no real analysis, that means she thinks it wasn't a close call - especially if the poor opinions cannot be ascribed to either laziness or incompetence.
7.13.2009 3:30pm
AJK:
Do you know when you're speaking? I want to make sure I catch it on c-span.
7.13.2009 3:30pm
richard1 (mail):
Come on. You already have decided to testify against her and now your'e just grasping at straws to come up with some pretty feeble arguments to justify your position.
7.13.2009 3:30pm
Law Student 32 (mail):
Lund states that the due process analysis is now "required" by the Supreme Court. I can only imagine that the statement is in reference to Heller's footnote 23 that states:

"With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615 (1886) and Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894), reaffirmed that the Second Amendment applies only to the Federal Government."

How can he reconcile that the court notes that the "required" inquiry stems from Presser and Miller rather than the Duncan v. Louisiana due process line of cases?
7.13.2009 3:34pm
Jeff R.:
The desire to avoid putting views on controversial, hot-button issues into her paper trail against an appointment hearing just such as the current one may have also figured into the brevity of these opinions...
7.13.2009 3:35pm
M N Ralph:
This is a weak line of attack against Sotomayor. The Posner/Easterbrook opinion inoculated her against this one.
7.13.2009 3:41pm
AJK:


How can he reconcile that the court notes that the "required" inquiry stems from Presser and Miller rather than the Duncan v. Louisiana due process line of cases?


I don't think that's what the footnote is saying at all -- Presser and Miller are not the "later cases" referred to in your first bolded sentence.
7.13.2009 3:43pm
Oren:
Ilya, this goes to the long-standing conflict over the precise meaning of precedent. Many believe in a very narrow form that was best articulated by the 9th circuit

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

If the Supreme Court ruled that the 2A wasn't covered by the 14A, that's the end of the story. The erosion of the doctrinal underpinnings mean absolutely nothing if the basic factual question is already decided.

There was a good quote from JPS about lower courts not getting out of place in attempting to 'get ahead' of the SCOTUS by reversing binding precedent whose doctrinal is undermined by more recent ones, I'll try to dig it out, but as I recall he used fairly harsh words.
7.13.2009 3:43pm
Larry Woetohice:
Ilya, can you explain why anything more than a short, cursory opinion would be necessary when a panel from the same Circuit had recently rejected the argument? I haven't read Bach, but if it's on point (like it seems from Cboldt and Maloney), then she couldn't come to a different conclusion unless the Circuit heard it en banc, so in-depth treatment would have been a waste of time. Unless you think she should have found Heller cast doubt on Bach, I don't see why she should have spent more time on an issue where Circuit law was established..
7.13.2009 3:49pm
Satori:
I seem to recall Easterbrook and Posner both pointing out what Oren mentioned. Both were pretty clear that the holding is what was binding and that the SCOTUS held the 2nd Amendment didn't apply to the states. They were not free to usurp the Court's proper rule.

If one attachs Sotomayor for that panel's 2A decision, I see no way to absolve Easterbrook and Posner.
7.13.2009 3:51pm
Oren:
Ah, there's the quote:

We do not suggest that the Court of Appeals on its own authority should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

[...]

The Court of Appeals refused to follow Wilko v. Swan, a controlling precedent of this Court. As the majority correctly acknowledges, the Court of Appeals therefore engaged in an indefensible brand of judicial activism. [internal cites stripped]

As a matter of binding Supreme Court precedent, Lund is simply factually incorrect to intimate that the 2CA has any authority to consider 20th century incorporation law when a "precedent of this Court has direct application", even though we all know that the reasoning is flawed and will almost certainly be reversed on cert.
7.13.2009 3:51pm
troll_dc2 (mail):

The desire to avoid putting views on controversial, hot-button issues into her paper trail against an appointment hearing just such as the current one may have also figured into the brevity of these opinions...



I grant that her name had been bandied about as a possible nominee if Obama won, but do you really believe what you wrote, especially given the fact that Didden was issued in 2006 and that Ricci was decided in early 2008?
7.13.2009 3:53pm
cboldt (mail):
-- If the Supreme Court ruled that the 2A wasn't covered by the 14A, that's the end of the story. --
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That's the end of the incorporation story, but it is emphatically NOT the end of the inquiry as to the power the states have vis-a-vis RKBA.
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You and I discussed exactly this "stare decisis" issue as you raised it in the last thread, referring particularly to the Presser case, and what propositions it can fairly be said to stand for. "Brief the case" What was the issue? How was the issue settled?
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IIRC, you specifically conceded, in yet another thread, that the "2nd amendment applies only to the feds" is dicta in the Presser case.
7.13.2009 3:53pm
Arkady:
Well, Ilya, testify as you wish, but don't you think you'll run up against this argument. "Well, Gee, Prof. Somin, the Supreme Court had the chance to incorporate the Second in Heller, and it did'nt. What's the big deal?"
7.13.2009 3:55pm
ShelbyC:

If the Supreme Court ruled that the 2A wasn't covered by the 14A, that's the end of the story. The erosion of the doctrinal underpinnings mean absolutely nothing if the basic factual question is already decided.


You seem to imply that the amendment level is the correct level of granularity. Why that and not, say, the clause level of the constitution as a whole level?
7.13.2009 3:56pm
Anderson (mail):
As a matter of binding Supreme Court precedent, Lund is simply factually incorrect to intimate that the 2CA has any authority to consider 20th century incorporation law when a "precedent of this Court has direct application"

Exactly right.

Jokers like Lund make practicing lawyers like me think that law profs should be ignored when it comes to real-world law. Which is unfortunate, since that conclusion isn't true, at least re: all law profs.

I'm a bit disgusted with academics who think they are soooooo very clever and right, that little things like "precedent" shouldn't get in the way. But arguments like Lund's have to be addressed to the sole body of judges empowered to reverse Supreme Court precedents, and while Sotomayor may be one of those judges someday soon, she wasn't one while sitting on the Second Circuit.
7.13.2009 4:09pm
AF:
Professor Somin,

How do you square your new-found belief that Sotomayor made an "egregious error" with the fact that there was a 2005 Second Circuit precedent directly on point? That fact makes the Second Circuit decision considerably more defensible than the Seventh Circuit's.

This looks like partisan hackery of the highest order, which Professor Somin is usually above.
7.13.2009 4:09pm
troll_dc2 (mail):

Well, Ilya, testify as you wish, but don't you think you'll run up against this argument. "Well, Gee, Prof. Somin, the Supreme Court had the chance to incorporate the Second in Heller, and it did'nt. What's the big deal?"



The incorporation issue was not relevant to Heller. The 2A on its face applies to the federal government, and the federal government is the legal ruler of the District of Columbia.
7.13.2009 4:10pm
Anderson (mail):
btw, I think the 2d Am *is* incorporated, and that Heller was probably right to find some individual right to bear arms outside the militia context, esp. in an era where "the militia" seems to mean "the National Guard."

But it's going to take many years for the SCOTUS to work through this "new" right to bear arms, and until it does, the lower courts are going to be bound by some questionable precedents that only the high Court can undo. That's just how the system works; even a law prof should know that.
7.13.2009 4:15pm
Melancton Smith:

If one attachs Sotomayor for that panel's 2A decision, I see no way to absolve Easterbrook and Posner.


We can discuss that when/if either is, heaven forbid, nominated for the Supreme Court.
7.13.2009 4:17pm
Arkady:



The incorporation issue was not relevant to Heller. The 2A on its face applies to the federal government, and the federal government is the legal ruler of the District of Columbia.


So what? I really didn't ask a legal question, I asked a political question. Do you guys really think Ilya's going to a law seminar? He's going to a political food fight.
7.13.2009 4:18pm
CrazyTrain (mail):
Ilya: "No, but I will point out that she wrote a poor opinion that did not give the issue anything resembling the consideration it deserves"

How do you know SHE wrote it. It is per curiam, yet you just said she wrote it and you repeatedly refer to it as if it is solely her opinion. Partsian hackery yes, and extremely lazy hackery at that. You should thank me for pointing this out so you don't get pwned at the hearings.
7.13.2009 4:19pm
Oren:

That's the end of the incorporation story, but it is emphatically NOT the end of the inquiry as to the power the states have vis-a-vis RKBA.

Those other inquiries were not properly brought up and are now waived. The only open question is the incorporation story, which is ended.

Also, Presser might be dicta but Cruikshank is right on the money with a binding holder that "[the 2A] has no other effect than to restrict the powers of the national government."
7.13.2009 4:20pm
ruuffles (mail) (www):

We can discuss that when/if either is, heaven forbid, nominated for the Supreme Court.

Does any one have any citations for discussion on why neither Easterbrook nor Posner were considered for SC? Both were perfect ages, especially Easterbrook, so I'm wondering if Reagan, Bush I/II explicitly ruled them out.
7.13.2009 4:21pm
Oren:

Well, Gee, Prof. Somin, the Supreme Court had the chance to incorporate the Second in Heller, and it did'nt [sic].

Really, the SCOTUS has the authority to rule on matters not relevant to the case or controversy at hand? Better go revise my copy of Art III!
7.13.2009 4:22pm
Jon Roland (mail) (www):
cboldt:

Presser v. Illinois, 116 U.S. 252 (1886): ".. the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."

I read the Easterbrook-Posner opinion to be a call on the U.S. Supreme Court to overturn to free them of the baneful shadow of Presser v. Illinois and the line of misinterpretations of it that followed.

Presser was not about the right to keep and bear arms or to assemble as militia. It was about a parade permit. Even the U.S. Army would have been required to get a parade permit if they had wanted to just parade. Neither it nor Presser's militia would have needed a permit to engage in an actual operation in defense of public safety. The parade was, in effect, held to be a ceremonial event, not an operation, even a training operation.
7.13.2009 4:23pm
troll_dc2 (mail):
CrazyTrain's comment makes me wonder who writes per curiam opinions and whether they really serve a function, given that they are just as binding as a signed one.
7.13.2009 4:23pm
cboldt (mail):
Oren: I mixed you up with a different poster on the concession re: dicta. Guy @ 6.3.2009 3:11pm: "I misread the decision. If one is obiter dicta [2nd applies only to feds], then they both are [states can't prohibit RKBA / 2nd applies only to feds]."
7.13.2009 4:25pm
AF:
Do you guys really think Ilya's going to a law seminar? He's going to a political food fight.

I agree with your implication that Professor Somin is making preposterous claims that would be unacceptable at a law seminar. But Professor Somin pretends that these are his considered opinions as a legal academic and is testifying on that authority. So they are properly held to the standard of a law seminar.
7.13.2009 4:26pm
tvk:
Ilya, the point is not that the Seventh Circuit including Easterbrook and Posner might also have got it wrong. The point is whether Sotomayor's treatment of the issue shows there is something wrong with her beyond getting it wrong--since I think everyone would agree occasionally getting it wrong is not disqualifying, as your initial post seems to concede.

The fact that she is joined in the view that the case is essentially slam dunk by two of the most distinguished jurists on the courts of appeals is relevant to say that her summary disposition of the case is not inappropriate. Yes, Easterbrook goes into incorporation under Due Process. But his contempt of the argument can hardly be more evident.
7.13.2009 4:31pm
cboldt (mail):
Oren: -- Those other inquiries were not properly brought up and are now waived. The only open question is the incorporation story, which is ended. --
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The issue of how to construe Presser may be waived in Court, but the Circuit Courts have undermined their legitimacy in the eyes of the public, to the extent that the public sees past the court baloney, and understands what the Presser case actually stands for.
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The Supreme Court isn't any better than the Circuits, as far as hackery on 2nd amendment precedent goes.
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Jon Roland: -- I read the Easterbrook-Posner opinion to be a call on the U.S. Supreme Court to overturn to free them of the baneful shadow of Presser v. Illinois and the line of misinterpretations of it that followed. --
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Yep. And that is pathetic. The Circuits are perfectly free to re-read the binding precedent for themselves, and correct their own gross misinterpretation and misapplication.
7.13.2009 4:38pm
Pyrrho:

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.

The bottom line, with regard to the specific argument made by Lund, is that Heller actually said nothing like this. In fact, I think Lund was being not only incorrect but dishonest by characterizing it this way. The footnote cited by law student 32, which I presume is what Lund was referring to, pretty explicitly acknowledges that the question of Second Amendment incorporation remained open even after incorporation began. So, whatever the arguments are on either side, Lund's central argument is extraordinarily weak and is built on a false premise.
7.13.2009 4:39pm
KH:
I'm surprised there hasn't been anything on here about RBG's recent Roe v. Wade comments to the NYT? I came looking for some sensible commentary on it.
7.13.2009 4:39pm
loki13 (mail):

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 had to highlight this text. As othr commenters have pointed out, this is just awful writing, and while I expect it from a partisan political source, I expect more from a legal academic. I see references over and over to "Sotomayor" and "she dispensed with major constitutional issues" and "she was unsympatheetic to".

Prof. Somin knows that these are panel decisions. I haven't seen any credible evidence to attribute the panel decisions to the force of "her" personality, as opposed to being the consensus of three judges. Moreover, while I believe that Sotomayor may have different beliefs than Prof. Somin, I haven't seen him provide any evidence that she is unsympathetic to the rights from any evidence. This is poor form, indeed. I think the way that a case like Ricci was handled is an interesting question (not, as some believe, to bury it, but rather because of some unfortunate was that our appellate systems work). But to attribute panel decisions you don't like as the work of one judge is, quite clearly, wrong.
7.13.2009 4:40pm
corneille1640 (mail) (www):

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.

Is Nelson Lund correct? I have only skimmed Heller, so I don't know, but did the decision "pointedly" require a due process analysis when it comes to incorporation? (Or perhaps Lund was saying only that such an analysis was required when it came to federal government action?)
7.13.2009 4:43pm
cboldt (mail):
-- but Cruikshank is right on the money with a binding holder that "[the 2A] has no other effect than to restrict the powers of the national government." --
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So what? "And even setting the 2nd aside," that is, even if there is no 2nd amendment, the states are not free to prohibit RKBA. The RKBA is not found "solely" in the 2nd amendment, and reading Presser as standing for the proposition that states MAY prohibit RKBA (unless restrained by the 2nd) is obviously false to anybody who bothers to read Presser.
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Good fortune for the Courts, very few people read Presser (or Miller), and therefore buy into whatever lies the Court (Sotomayor, Posner and Easterbrook included) feels like asserting.
7.13.2009 4:44pm
frankcross (mail):
I certainly respect Lund, and Somin, and I am inclined to agree with them. But I'd say Sotomayor, Easterbrook, and Posner make an imposing bunch. Even if I disagree, I don't think I would have the cockiness to accuse them of egregious error.
7.13.2009 4:46pm
troll_dc2 (mail):

But to attribute panel decisions you don't like as the work of one judge is, quite clearly, wrong.



I would go further. I would say that taking such a posture is intellectually dishonest.
7.13.2009 4:47pm
glangston (mail):
The 9th Circuit seems to believe the 2nd is already incorporated. Have they gotten ahead of themselves?
7.13.2009 4:47pm
troll_dc2 (mail):
Cruikshank was handed down before the incorporation doctrine came into existence. While it could be claimed that the issue is open because the Court never had an opportunity in that case to consider the doctrine, the proper posture of the lower courts has to be that the Court made the incorporation dctrine irrelevant to the 2A. Any other outcome undermines the core holding of Cruikshank, and that is improper.
7.13.2009 4:53pm
ruuffles (mail) (www):

The 9th Circuit seems to believe the 2nd is already incorporated. Have they gotten ahead of themselves?

Probably. We're awaiting the results of the en banc call initiated by one of the judges.
7.13.2009 4:54pm
ShelbyC:

As a matter of binding Supreme Court precedent, Lund is simply factually incorrect to intimate that the 2CA has any authority to consider 20th century incorporation law when a "precedent of this Court has direct application"


But do Presser &Miller have direct application? They ruled on the P&I clause, not the DP clause, correct?
7.13.2009 4:56pm
M N Ralph:

Is Nelson Lund correct? I have only skimmed Heller, so I don't know, but did the decision "pointedly" require a due process analysis when it comes to incorporation? (Or perhaps Lund was saying only that such an analysis was required when it came to federal government action?)


The footnote is quoted upthread. As I read the footnote, it says the Supreme Court in the 19th century failed to do the now "required" 14th Amendment analysis. It certainly does not say that the circuit courts are required to do this analysis rather than simply applying precedent.
7.13.2009 4:57pm
Oren:

So what? "And even setting the 2nd aside," that is, even if there is no 2nd amendment, the states are not free to prohibit RKBA. The RKBA is not found "solely" in the 2nd amendment, and reading Presser as standing for the proposition that states MAY prohibit RKBA (unless restrained by the 2nd) is obviously false to anybody who bothers to read Presser.

Those issues were not raised in Maloney and are waived. The ONLY thing the Maloney court could do is dispose of the argument that the 2A applies to the States via the 14A.
7.13.2009 5:00pm
cboldt (mail):
-- We're awaiting the results of the [9th Circuit / Nordyke] en banc call initiated by one of the judges --
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The "en banc or not" vote is supposedly to be announced today. Found at calguns.net: 9th Circuit Status of Pending en banc Cases
7.13.2009 5:07pm
cboldt (mail):
-- Those issues were not raised in Maloney and are waived. --
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We've been around this barn in one form or another, on numerous occasions. My point is that Courts are free to correct their own error, sua sponte. I disagree with your assertion that the Maloney Court did not have that power, or, in the alternative, that the Bach Court lacked that power.
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As to my point that the Circuits undermine their credibility, to the extent the public understands the precedents, that effect operates outside of court. I personally hope the Courts undermine their credibility even further. As it is, academia and the vast majority of commentators have adopted the position that Presser stands for the proposition that States may prohibit KBA; and that Miller stands for the proposition that the feds may prohibit the pubic from owning certain weapons that are used in the organized militia.
7.13.2009 5:12pm
PersonFromPorlock:
Out of curiousity, does a judge's oath of office require him to defend precedent, or the Constitution? If there's an obvious conflict between the two, what does his oath require him to do?
7.13.2009 5:13pm
PLR:
Prof. Somin knows that these are panel decisions. I haven't seen any credible evidence to attribute the panel decisions to the force of "her" personality, as opposed to being the consensus of three judges. Moreover, while I believe that Sotomayor may have different beliefs than Prof. Somin, I haven't seen him provide any evidence that she is unsympathetic to the rights from any evidence. This is poor form, indeed. I think the way that a case like Ricci was handled is an interesting question (not, as some believe, to bury it, but rather because of some unfortunate was that our appellate systems work). But to attribute panel decisions you don't like as the work of one judge is, quite clearly, wrong.


I can't disagree, but Somin and others on this site are acting as political animals in posts like this, and Judge Sotomayor is today's meal.

Not hungry, myself.
7.13.2009 5:14pm
troll_dc2 (mail):

Somin and others on this site are acting as political animals in posts like this, and Judge Sotomayor is today's meal.



Very nicely put.
7.13.2009 5:25pm
CJColucci:
Mr. Chairman, the Maloney opinion does not contain a section explaining the differences between Privileges and Immunities analysis -- under which the Supreme Court held that the 2d Amendment was not incorporated -- and Due Process analysis, which the Supreme Court decided later was the appropriate method for deciding incorporation issues, and....

Sen. Leahey: Excuse me, Professor, but what are those differences? Is there any reason to think that it makes a difference which clause they use?

Sen. Spector: Judges Posner and Easterbrook did discuss it and decided it made no difference, didn't they?

Sen. Franken: So, Professor, you're here to complain that whoever wrote Maloney didn't write a law review article?

Riveting television.
7.13.2009 5:27pm
Law Student 32 (mail):
As rightfully pointed out, it is not just Sotomayor who came to this conclusion, as the 7th Circuit did as well. Moreover, recent state courts have held that the 2nd amendment is not incorporated. See, e.g., State v. Turnbull, 766 N.W.2d 78 (Minn. Ct. App. 2009); State v. Ryks, 2009 WL 1515516, *5 (Minn. Ct. App. Jun 02, 2009). Obviously a state appellate court probably doesn't maintain the dexterity to overturn precedent to the degree that a circuit court does; however, the reasoning for these decisions is sound:

"Where, a Supreme Court precedent 'has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.'" Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)

Simply put, it is the province of the Supreme Court to decide whether the 2nd amendment is incorporated, not the circuit courts of appeals.
7.13.2009 5:44pm
ShelbyC:

The footnote is quoted upthread. As I read the footnote, it says the Supreme Court in the 19th century failed to do the now "required" 14th Amendment analysis. It certainly does not say that the circuit courts are required to do this analysis rather than simply applying precedent.


Are you sure you guys aren't skirting the issue? "Due Process" analysis is required due to the fact that the SC has ruled that the BOR can be incorporated through the Due Process clause. In a case where there is no precedent, courts are required do determine if a right is incorporated via the due process clause. And there's no precedent that says that the 2A is not incorporated by the Due Process clause.
7.13.2009 5:53pm
cboldt (mail):
-- As rightfully pointed out, it is not just Sotomayor who came to this conclusion, as the 7th Circuit did as well. --
.
But both Circuits rest their conclusion on a particular read of Presser, that the Presser case does not support. The Circuits are saying, essentially, that they are bound by precedent, to reason opposite of what precedent says. The Courts get away with this because few people read/brief the precedent. And in an irony of the law, the more courts lie, the more that lawyers and academia adopt (and even enforce) the lie, and reject sound reason and truth.
.
Notice the dearth of blockquote from Presser, and instead citation to the characterization of Presser by lower courts? It's a form of hiding the precedent, and invoking "correct as a matter of 'popular' (all the Courts are doing the same thing) weight."
7.13.2009 5:54pm
krs:
cboldt, if I recall correctly, it came up in the Seventh Circuit oral argument that the Supreme Court in a footnote in Heller characterized Presser in a way that you're saying is false. Regardless of whether the Supreme Court was right in Heller, the 7th Circuit judges felt bound by Heller's reading of Presser. Maybe I've missed something.
7.13.2009 6:02pm
krs:
and here's the passage from the opinion:


Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing validity on incorporation" is "a question not presented by this case." That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision
7.13.2009 6:03pm
troll_dc2 (mail):
ShelbyC, earlier I posted this comment, which I believe addresses your complaint:


Cruikshank was handed down before the incorporation doctrine came into existence. While it could be claimed that the issue is open because the Court never had an opportunity in that case to consider the doctrine, the proper posture of the lower courts has to be that the Court made the incorporation dctrine irrelevant to the 2A. Any other outcome undermines the core holding of Cruikshank, and that is improper.



In light of Cruikshank, why does the incorporation doctrine matter? As you know full well, the Supreme Court has told lower courts not to mess with its decisions, and whether or not the Court's analysis of the issue was good or inadequate, the Court has already held that the 2A does not apply to the states. Might the Court change its mind? Yes. But that is for the Court to decide.
7.13.2009 6:04pm
troll_dc2 (mail):
Are the commenters who want to bash Sotomayor because she participated in a decision that refused to hold that an old Supreme Court decision that did not use modern reasoning should not be considered controlling precedent even lawyers?
7.13.2009 6:09pm
cboldt (mail):
-- the 7th Circuit judges felt bound by Heller's reading of Presser. Maybe I've missed something. --
.
Yes, clearly so. It's a common and popular error to conflate the people's RKBA with the 2nd amendment. That if there is no 2nd amendment (or no positive statement in a state constitution), then the people do not have any RKBA. But notice what Presser says - even if there is no 2nd amendment, there IS a RKBA, and the states can't prohibit KBA. Even if the 2nd is NOT incorporated, even if the 2nd did not exist, says Presser, the states may NOT prohibit KBA. An honest review of Presser would at least address the nature of the case (it was about parade permits) and probe the relationship between RKBA and the 2nd amendment. Instead, the Courts cherry-pick a convenient phrase and wrongly shift blame. They've been getting away with this for decades.
.
The Circuits are complicit in eliminating the people RKBA by construing it as coming from the government, to the people - and in the case of the way the Circuits read Presser, as "if (and because, see Presser) the right doesn't flow from the feds via the 2nd amendment, the states are free to infringe the people's RKBA."
.
Unrelated to this, the Circuits are currently doing the same "magic of the big lie" in construction of Miller, as misread by the majority in Heller.
7.13.2009 6:13pm
Jon Roland (mail) (www):

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.



United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
7.13.2009 6:16pm
ArthurKirkland:
Expecting anyone to have predicted the Supreme Court would take such an activist approach to the Heller question seems weak. Had Heller's argument occurred years later, or years earlier, the decision might easily have gone the other way. The Heller decision narrowly found an individual right that had not been announced in two preceding centuries. Anyone care to predict whether subsequent decisions substantially whittle the substantive reach of the Heller decision?
7.13.2009 6:19pm
cboldt (mail):
-- and whether or not the Court's analysis of the issue was good or inadequate, the Court has already held that the 2A does not apply to the states. --
.
In Cruickshank, what did the Supreme Court say the 2nd didn't operate to enforce? A state law? No. The issue in Cruickshank was whether or not one individual could use the 2nd against another individual. Answer, "No, state law is used to remedy personal disputes."
.
Cruickshank's application in Presser was as to a state law - but even there the decision was rooted in police power as to parade permits. Presser's RKBA wasn't threatened. His right to conduct a parade without a permit was the only activity at stake.
.
And in Presser, even if the 2nd amendment was read out of existence, the Court said the states may NOT prohibit RKBA.
7.13.2009 6:20pm
Jon Roland (mail) (www):
ruuffles:

The 9th Circuit seems to believe the 2nd is already incorporated. Have they gotten ahead of themselves?

Probably. We're awaiting the results of the en banc call initiated by one of the judges.

Which takes that judge out of the role of judge and into the role of advocate. Judges should not be allowed to do that.
7.13.2009 6:22pm
troll_dc2 (mail):
cboldt, so why did the Court say that the 2A applies only to the federal government? Is that dicta? Is it just an unthinking statement that no court should take seriously?
7.13.2009 6:25pm
troll_dc2 (mail):

The 9th Circuit seems to believe the 2nd is already incorporated. Have they gotten ahead of themselves?

Probably. We're awaiting the results of the en banc call initiated by one of the judges.

------
Which takes that judge out of the role of judge and into the role of advocate. Judges should not be allowed to do that.



Judges are allowed by every court of appels to call for an en banc rehearing. The call was attempted in Ricci too, but failed to get a majority.
7.13.2009 6:28pm
cboldt (mail):
-- so why did the Court say that the 2A applies only to the federal government? Is that dicta? Is it just an unthinking statement that no court should take seriously? --
.
The court took up the 2nd because Presser argued his right to parade was protected by the 2nd amendment. IOW, defendant argued the 2nd, and the court addressed the argument. Presser also argued that the 1st operates as a bar to state parade permit laws, as parade permits interfere with freedom of assembly. The basis for the Court's decision lies elsewhere - not in the absence of 1st or 2nd amendment application against the states.
.
That's a long way of saying, yes, the discussion about the 2nd, in Presser, is dicta.
.
I don't object to a Court taking up the Presser case. My objection is that the Circuits have isolated certain phrases, and taken in isolation, asserted a blatant falsehood about what the Presser case stands for.
.
Anybody can read Presser, and can compare it with what the Circuits claim Presser says - and most people who do so are going to figure out that Circuits have been illogical and dishonest.
7.13.2009 6:35pm
Jon Roland (mail) (www):
PersonFromPorlock:

... does a judge's oath of office require him to defend precedent, or the Constitution? If there's an obvious conflict between the two, what does his oath require him to do?

Obviously, his oath requires him to reject recedent, and not just if the conflict is obvious, but even if it is reasonably suspected.

See my article, How stare decisis Subverts the Law, which has links to several other articles.

Implicit in the Constitution is the duty to refuse to sustain any official act that is not clearly proved to derive from the Constitution, or fall within its exlicit areas of discretion, such as due process or the definition of "reasonable", and even there, the obligation is to lean toward the positions of individuals and against the positions of officials.
7.13.2009 6:37pm
Jon Roland (mail) (www):
troll_dc2:

Judges are allowed by every court of appels to call for an en banc rehearing. The call was attempted in Ricci too, but failed to get a majority.

I know, and regard it as wrong. Only parties should be allowed to make what amounts to an appeal on a writ of error. If neither party wants to do that, the judge should not either.
7.13.2009 6:49pm
troll_dc2 (mail):

Judges are allowed by every court of appels to call for an en banc rehearing. The call was attempted in Ricci too, but failed to get a majority.

-----
I know, and regard it as wrong. Only parties should be allowed to make what amounts to an appeal on a writ of error. If neither party wants to do that, the judge should not either.



So if an appeals court panel says that the 2A does not apply to the states and no party seeks rehearing en banc, the decision is the law of the circuit under your viewpoint. Are you okay with that?
7.13.2009 6:55pm
Satori:
Cboldt, I disagree with your reading of Presser. It was not dicta. Presser argued a number of alternative grounds, including the 2A question. The Court needed to address that question because he could have won on that one even if he lost on the others. It was a holding of the case.


I don't object to a Court taking up the Presser case. My objection is that the Circuits have isolated certain phrases, and taken in isolation, asserted a blatant falsehood about what the Presser case stands for.


What is the falsehood about Presser? The Court there clearly held that the 2A only binds Congress.
7.13.2009 6:55pm
Jon Roland (mail) (www):
troll_dc2:

So if an appeals court panel says that the 2A does not apply to the states and no party seeks rehearing en banc, the decision is the law of the circuit under your viewpoint. Are you okay with that?

I wouldn't like the outcome, but getting the right outcome does not justify an abuse of process or a judge acting as advocate.

There is a general problem, which happens all too often, that the Constitution may not be defended by any of the parties in the case, all of whom are satisfied to plead and accept a decision that violates it. That indicates the need for the process to be open not just to amici, but to intervenors, who may defend the Constitution against both main litigants, without having their intervention struck.
7.13.2009 7:07pm
cboldt (mail):
-- What is the falsehood about Presser? --
.
See my 7.13.2009 3:27pm post, in this very thread, for a concise summary.
.
I acknowledged above that the Presser Court had to talk about the 2nd, as it had to talk about the 1st (freedom of assembly). But it's basis for decision was that impinging on a right to parade is a legitimate police power - i.e., parade permits don't impact RKBA or freedom of assembly. I don't think the 2nd amendment protects a right to conduct a gun show either.
7.13.2009 7:10pm
loki13 (mail):
PersonfromPorlock wrote:


does a judge's oath of office require him to defend precedent, or the Constitution? If there's an obvious conflict between the two, what does his oath require him to do?


First, please ignore Jon Roland.
Second, you need to understand the different binding powers of vertical (strong) and horizontal (weak) stare decisis, and why they are important in our judicial system. Let's ignore horizontal for now.

Vertical stare decisis is incredibly important in our system. Once a superior court has interpreted the law (out, pace your question, the Constitution) in a certain way, lower (inferior) courts are bound by that interpretation. There are many good reasons for that. One is simple judicial effeciency. You don't want, for example, trial judges having to re-decide what the Constitution means every time a case comes before them. A second important value is uniformity. If the superior court (say, SCOTUS) has interpreted the Constitution to mean X, then litigants in front of a trial court know that the trial court is bound to interpret the law in that way. Finally, it reins in on rogue judges. Everyone has different views of the Constitution. Jon Roland, were he ever to become a trial judge, would not believe the Income Tax amendment was constitutional, and, if it was, it would not apply to wages. So everytime a case came before him that touched on that issue, he's rule according to his own idiosyncratic beliefs, incurring additional time and expense to go through the appellate process to overrule him. Magnify that by every wacky conservative and liberal judge out there. *That* is why we have strong vertical stare decisis.

And if a superior court (such as SCOTUS) makes a mistake, they are only weakly bound by their own precedent (horizontal stare decisis), so they may corrrect it. Does this make sense?

But to put your question another way- the oath to the Constitution is an oath to the way our judicial system works, not an oath to take whatever view you have of the Constitiution and make it "the law".
7.13.2009 7:19pm
OldEasterner:

The Heller decision narrowly found an individual right that had not been announced in two preceding centuries.


Actually, it unanimously found an individual right.

It was narrowly found that the DC law violated that individual right.

And besides the fact that the court doesn't announce rights if it isn't asked, there was no Federal limit on any arms to question for the first 140 years of the country's existence.
7.13.2009 7:35pm
Oren:

My point is that Courts are free to correct their own error, sua sponte. I disagree with your assertion that the Maloney Court did not have that power, or, in the alternative, that the Bach Court lacked that power.

Courts are not free to correct the plaintiff's errors in not raising meritorious arguments at the proper stage of pleading.

The Court here made no error ruling that Cruikshank plainly forecloses the particular argue that Maloney made. It need not consider every other colorable objection to the statute that Maloney attacks.
7.13.2009 7:40pm
Oren:

Implicit in the Constitution is the duty to refuse to sustain any official act that is not clearly proved to me to derive from the Constitution, or fall within its explicit areas of discretion ...

Truly every man could be a Constitution unto himself!
7.13.2009 7:43pm
ShelbyC:

Any other outcome undermines the core holding of Cruikshank, and that is improper.


Correct me if I'm wrong, but the core holding of Cruikshank (and Presser and Miller) is that the RKBA is not a right "granted" by the Constitution and therefore not a P&I. It doesn't make a holding as to whether or not states violating the RKBA is a SDP violation, correct?
7.13.2009 7:48pm
Oren:
Shelby, that is inaccurate. They were not ruling on what the 2A means, only that it doesn't touch the States at all (and therefore there is no need to discuss the matter further).


The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States.
7.13.2009 8:17pm
ShelbyC:

They were not ruling on what the 2A means, only that it doesn't touch the States at all (and therefore there is no need to discuss the matter further).



In Cruikshank they ruled that it doesn't touch private citizens at all. In Presser, what they addressed was:


The inquiry is therefore pertinent, what privilege or immunity of a citizen of the United States is abridged by sections 5 and 6 of article 11 of the Military Code of Illinois?


And found that there was none.

Ironically, the court explictly refused to consider whether or not the legislation violated the DP clause, so there is no finding that violating the RKBA doesn't violate DP.
7.13.2009 8:46pm
cboldt (mail):
-- Ironically, the court explictly refused to consider whether or not the legislation violated the DP clause, so there is no finding that violating the RKBA doesn't violate DP. --
.
I don't see the irony there, in the Presser case. Presser argued that the 2nd amendment protects a right to parade, as long as the marchers bring guns.
.
I find it natural and ordinary that "right to parade (as long as it's with guns)" isn't discussed in terms of being in or out of some sort of due process. When considering the "right to parade (as long as it's with guns)," I have the same sort of reaction as to P&I. That is, I see a HUGE disconnect or gap between "right to parade" and ANY sort of immunity or privilege. That the state has the power to regulate parades doesn't strike me as infringing much of anything.
.
Now, if the state were to define "parade" as any group of more than 3 people traveling together, I'd no doubt find differently.
7.13.2009 9:02pm
cboldt (mail):
-- Actually, [the Heller Court] unanimously found an individual right. --
.
Except the population of "individual" who was in possession of that right varied as between the majority and the dissent. The "individual" right in the dissent's version is extended ONLY to individuals serving in an organized militia. But yes, for those individuals, the dissent found an individual right.
7.13.2009 9:13pm
Law Student 32 (mail):
If we are going to pick through phrases articulated in Presser, we should at least acknowledge the one that says "the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state." Presser v. Illinois, 116 U.S. 252, 265 (1886)
7.13.2009 9:15pm
ShelbyC:

If we are going to pick through phrases articulated in Presser, we should at least acknowledge the one that says "the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state." Presser v. Illinois, 116 U.S. 252, 265 (1886)



Correct, but despite the inexact phrasing often used, modern incorporation doctrine doesn't hold that amendemnets restrict states directly, but throught the 14th amendment. Part of this is a problem with wording. When we say, "the 1st amendment prevnets states from..." nobody thinks that "congress shall make no law..." applies to the states. What we mean is that the Due Process clause of the 14th prevents them from doing whatever. But that's not what the Presser court meant...
7.13.2009 9:32pm
ReaderY:
Professor Somin,

Might it be possible that what you call an "egregious error" might simply reflect a difference of opinion?

I am troubled when the Court decides a rational basis case by a 5-4 vote and 5 justices effectively call the other 4 irrational. But I'm also troubled by situations like this, where each side treat's the other's view as nothing but nonsense. It seems to be it's possible to be right without the other side being either wholly irrational or wholly nonsense.

A tendency towards black-and-white thinking -- towards thinking of ones own position as the only possible ethical or reasonable position and other positions (even if wrong) as nothing but nonsense, evil, or both -- strikes me as boding more ill for the survival of the Republic than the Court being wrong on an individual call or two. I find myself fearful for the Republic's survival.
7.13.2009 10:14pm
ReaderY:
It strikes me as not unreasonable to interpret Adarand Constructors as mandating that a result remains binding on lower federal courts even if the reasoning behind it has been undermined by later Supreme Court decisions.

It's true this is not the only possible position for a lower court to take on the issue, but it doesn't strike me as a wholly unreasonable approach to say that given the Supreme Court's prior result and reasoning on the subject, reaching a different result by different reasoning is a matter best left for the Supreme Court to undertake itself.
7.13.2009 10:20pm
Melancton Smith:

Does any one have any citations for discussion on why neither Easterbrook nor Posner were considered for SC? Both were perfect ages, especially Easterbrook, so I'm wondering if Reagan, Bush I/II explicitly ruled them out.


Vetting? Just a guess...
7.13.2009 11:01pm
Jon Roland (mail) (www):
loki13:

PersonfromPorlock wrote:

does a judge's oath of office require him to defend precedent, or the Constitution? If there's an obvious conflict between the two, what does his oath require him to do?

First, please ignore Jon Roland.
But to put your question another way- the oath to the Constitution is an oath to the way our judicial system works, not an oath to take whatever view you have of the Constitiution and make it "the law".

Second, please ignore loki13.
There is no such thing as an oath to "the way the system works". It is also not to "whatever view you have of the Constitiution". The oath is to the Constitution. That means to what it meant when it was ratified. Not just your casual opinion, and not the opinion of likely corrupt or incompetent judges. In deciding constitutional issues you have an absolute duty to figure out what the Founders meant, and to get it right. Contrary to the sophists like loki13 qwho infest our legal system, that is not impossible. But it is very, very difficult. It takes years of immersion in the legal background of the Constitution, learning to think like the Founders. It means putting aside your contemporary culture and learning to live and think in the culture of 1787. Very few lawyers or judges have made that effort.
7.14.2009 12:18am
Jon Roland (mail) (www):
Oren:

Truly every man could be a Constitution unto himself!

As was made implicit in Marbury, every person, not just judges, has the duty to help enforce the laws in any situation in which he may nbecome involved, to resolve conflicts of laws when they occur, and when one of those laws is the Constitution, to resolve it in favor of the Constitution. That means we are all on our own. We can't divest ourselves of that duty, to supervisors, judges, or legal advisers. So we had better get it right, and if the Constitution is unclear, to amend it to clarify it.

That is why I have developed my Draft Amendments.
7.14.2009 12:32am
loki13 (mail):

It takes years of immersion in the legal background of the Constitution, learning to think like the Founders. It means putting aside your contemporary culture and learning to live and think in the culture of 1787.


Yes, the Founders were completely unaware of how the common law system worked, and how court systems worked, and how laws were interpreted, and of vertical stare decisis. They had no familiarity with these concepts whatsoever. In fact, they were so steeped in Jon Roland's "Every Man is a Constitution onto Himself" theory that they never had any court-packing controversies, and TJ was unconcerend about Federalists on the bench.

First, you make up the theories. Then, you make up the history. And I'm the sophist?
7.14.2009 1:37am
Jon Roland (mail) (www):
loki13:

the Founders were completely unaware of how the common law system worked,

The Constitution was adopted in large part to overcome some of the shortcomings of the common law system, terminating conflicting parts of it. There were actually two common law traditions at the time:
1. Tory/Blackstone/Mansfieldian
2. Whig/Coke/Candenian/American

and how court systems worked, and how laws were interpreted,

Which is why they created a new court system, with different rules of construction.

and of vertical stare decisis.

The term "vertical" was not used by them, and there is almost no use of the phrase "Stare decisis". They used terms like "judicial power".

They had no familiarity with these concepts whatsoever.

It was discussed in Bouvier's Law Dictionary (1856):
STARE DECISIS. To abide or adhere to decided cases.

2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred. Vide 1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.

they never had any court-packing controversies,
and TJ was unconcerend about Federalists on the bench.

The Jeffersonians were concerned about the appointments of John Adams, especially John Marshall.


First, you make up the theories. Then, you make up the history. And I'm the sophist?

None of this is original with me. As for the history, we present the primary sources with a minimum of commentary, and you and others can read them for yourselves.
7.14.2009 2:28am
Gene Hoffman (mail) (www):
I find Posner's own words very interesting. When he likes the outcomes, the decisions "on point" aren't binding:

"[S]ometimes later decisions, though not explicitly overruling or even mentioning an earlier decision, indicate that the Court very probably will not decide the issue the same way the next time. In such a case, to continue to follow the earlier case blindly until it is formally overruled is to apply the dead, not the living, law."

Norris v. United States, 687 F.2d 899, 904 (7th Cir.
1982).

So Posner doesn't apply his rule reliably which tends to undermine his argument that supports Sotomayor. Sotomayor relied on Bach without acknowledging an intervening change in the law - namely Heller. That sounds like a very convenient blind spot to me that tends to support Ilya's criticisms.

-Gene
7.14.2009 3:12am
Public_Defender (mail):
So, an intermediate appellate judge punts a decision involving a major change in constitutional interpretation to the relevant supreme court. This is news? Welcome to the real world. Some might say that her non-decision shows a reticence to engage in "judicial activism."

(And, as I've said in these forums many times, my clients wold likely benefit if Sotomayor failed and Obama picked someone else, so I'm not exactly her biggest fan.)
7.14.2009 5:25am
loki13 (mail):
Jon,

First, you need to learn to recognize sarcasm. For example, inter alia, the whole TJ/court packing was an explicit reference... in fact, there might even be a famous case that follows from that controversy.

Second, you do provide referrences. However, as has been pointed out on numerous previous threads, you only manage to find things that support your a priori conclusions, while ignoring the rest. Second, you often fail to give context to the references you provide. Finally, your big leaps ("The Constitution was adopted in large part to overcome some of the shortcomings of the common law system") are provided without any reference whatsoever. Silly me- I thought the Constitution was formed in order to form a more perfect Union, and missed that part of the Federalist Papers / Costitutional Convention where it was stated "We adopt this Constitution n order escape the tyrrany of Common Law."

And again, without being too dismissive, you are fall into Loki13 Maxim:
Every far-out, bizarre, internally contradictory method of constitutional alnalysis has one thing in common: the proponent believes they don't have to pay an income tax.
7.14.2009 10:33am
Hiram Sasser (mail):
Has anyone considered that Sotomayor may be nothing more than a statist and these decisions reflect not only her personal attitudes on these discrete issues but more importantly her attitude on the role of government in general? If I were an old 60s liberal, I would be disappointed by this pick. Where wil she be on Buckhannon, Monell, Marek and other important procedural issues in civil rights cases? Fourth Amendment? Establishment Clause? I have a feeling that Sotomayor is the left's Harriet Miers - assurances on abortion and gay rights, but a potential problem on everything else.
7.14.2009 10:45am

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