Sotomayor Again Misstates Fundamental Rights Doctrine:

As she did yesterday, Sotomayor asserted that a right is “fundamental” if it is “incorporated” against the states via the 14th Amendment rather than that a right is incorporated against the states if it is fundamental. She then claimed that Supreme Court precedent established that that the Second Amendment is not incorporated. This too is inaccurate. As Justice Scalia stated in Heller, the precedents refusing to apply the Second Amendment to the states (on which Sotomayor’s panel relied in Maloney) did not address the modern “fundamental rights” doctrine. Judge Sotomayor’s panel in the Second Circuit said nothing about the merits of the claim that the individual right to bear arms meets the modern test for identifying a fundamental right. Here is the relevant portion of the transcript

SOTOMAYOR: In the Supreme Court’s decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal — the federal government could take with respect to the possession of firearms. In that case we’re talking about handguns.

The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn’t have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It’s sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.

COBURN: Through the 14th Amendment.

SOTOMAYOR: Through — and others. But the — generally. I shouldn’t say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with — for us was a very narrow one. We recognized that Heller held — and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.

The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it’s not, so it wasn’t fundamental in that legal doctrine sense. That was the Court’s holding.

This is both a grossly incorrect (and empty) understanding of the doctrine governing the protection of fundamental rights and an inaccurate statement of the precedents concerning the incorporation of the right to keep and bear arms into the Due Process Clause of the Constitution.

To be clear, a court COULD take the position, as did Judge Easterbrook in the Seventh Circuit, that a Circuit Court of Appeals is not entitled to consider the fundamentality of the right to keep and bear arms under modern Due Process Clause doctrine in light of the Supreme Court’s ruling in Heller because Nineteenth Century precedent said that the Second Amendment does not apply to the states–even though those precedents implicitly involved the Privileges or Immunities Clause. But, unlike the Seventh Circuit, the Judge Sotomayor’s panel simply ignored this issue altogether. And of course the Ninth Circuit did consider this modern doctrine and concluded that the right to bear arms IS fundamental.