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.

The Orange County Register recently published my op ed on the troubling implications of Judge Sotomayor's ruling in Didden v. Village of Port Chester:

It's not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London, Conn. But Judge Sonia Sotomayor, who is scheduled to begin Senate cofirmation hearings today on her nomination to the high court, succeeded. In the 2006 case of Didden v. Village of Port Chester she signed on to perhaps the worst federal court property rights decision in recent memory.

In Kelo the court held that the government can condemn a person's property and transfer it to someone else in order to promote economic development. In Didden, Judge Sotomayor's federal appellate-court panel went further, upholding the government's condemnation of property after the owners refused to pay extortion money to a politically influential private developer.

In 1999 the village of Port Chester, N.Y., established a "redevelopment area," giving designated developer Gregg Wasser a virtual blank check to condemn property within the area. When local property owners Bart Didden and Dominick Bologna sought a permit to build a CVS pharmacy in the area, Wasser demanded that they pay him $800,000 or give him a 50 percent partnership interest in the store, threatening to have their land condemned if they said no. They refused, and a day later the village condemned their property.

Didden and Bologna challenged the condemnation on the ground that it was not for a "public use," as the Constitution's Fifth Amendment requires. Their argument was simple and compelling: Extortion for the benefit of a private party is not a public use. In a short, cursory opinion, Sotomayor's panel upheld the condemnation.

Although based partly on Kelo's very broad definition of "public use," the Didden ruling extended the term beyond what Justice John Paul Stevens had in Kelo. In particular, Stevens had noted that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." As an example of such an unconstitutional pretextual taking, he cited a case with far less egregious facts than Didden....

Kelo was a 5-4 decision, denounced by many on both left and right. The next few Supreme Court nominees could well determine whether it is overruled -- or is expanded to weaken property rights even further. Under the guise of "redevelopment," local governments across the country often condemn property for the purpose of transferring it to politically favored interests. Since World War II, hundreds of thousands have lost their homes. Usually, those displaced are poor, minorities or the politically weak -- a point emphasized by the NAACP in its amicus brief in Kelo. The stakes here are very high.

Judge Sotomayor's ruling in Didden suggests that she would uphold even the most abusive condemnations, taking the court even further in the same misguided direction.

Probably because of space constraints, the editors cut most of my discussion of claims that Didden was correctly decided because the property owners failed to file their case on time or because Gregg Wasser had a conflicting account of the facts. The statute of limitations issue is ultimately a sideshow because the panel clearly resolved the constitutional claim as well, and because the the two were in fact inextricably connected (points I addressed in more detail here). Wasser's alternative account of the facts is also irrelevant because Sotomayor's panel was legally required to assume the truth of Didden and Bologna's version of events, and because Wasser's version doesn't actually undermine the plaintiffs' claims that he used the threat of eminent domain as leverage for extortion.

During the confirmation hearings today, Judge Sotomayor considerably misstated of the holding of Kelo v. City of New London, making the decision seem more limited than it actually was. In response to questioning by Democratic Senator Herb Kohl, Sotomayor refused to reveal her view of Kelo, a standard tactic used by previous Supreme Court nominees, but also incorrectly claimed that Kelo upheld a taking in an "economically blighted area":

KOHL: Judge, in a 5-4 decision in 2005, the Supreme Court ruled that Kelo v. City of New London was a — that it was constitutional for local government to seize private property for private economic development.

Many people, including myself, were alarmed about the consequences of this landmark ruling because, in the words of dissenting Justice O'Connor, under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," unquote.

This decision was a major shift in the law. It said that private development was a permissible, quote, "public use," according to the Fifth Amendment, as long as it provided economic growth for the community.

What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate, quote, "public use" for condemning private property?

SOTOMAYOR: Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge.

As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests the question of the reach of Kelo has to be examined in the context of each situation, and the court did, in Kelo, note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public — a public purpose and public use.

I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate. [emphasis added].

In reality, both sides in the Kelo litigation agreed that the area in question was not blighted. As Justice John Paul Stevens noted in his majority opinion for the Court, "There is no allegation that any of these properties [that were condemned] is blighted or otherwise in poor condition," and "[t]hose who govern the City [of New London] were not confronted with the need to remove blight in the Fort Trumbull area" where the condemned properties were located. That's what made the Kelo case distinctive: it addressed the question of whether property could be condemned and transferred from one private owner to another solely for purposes of "economic development" in a nonblighted area. The Supreme Court had already ruled that private-to-private condemnations in a blighted area are permissible in the 1954 case of Berman v. Parker. As I have explained elsewhere, Berman led to numerous abuses, including the condemnation of property under statutes that define "blight" so broadly that almost any area can be condemned. The issue addressed in Kelo went beyond this, however, because there was no allegation of blight in the case, even under Connecticut's broad definition thereof. Sotomayor's misstatement of Kelo's holding is somewhat surprising, given that she was surely prepared to answer questions about her own controversial ruling applying Kelo in the Didden case.

On the other hand, Senator Kohl was probably wrong to suggest that Kelo was "a major shift in the law." Berman and Hawaii Housing Authority v. Midkiff had already defined "public use" so broadly that virtually any nonpretextual taking was considered permissible, a point I discussed here (pp. 224-25). That said, I am very happy that this issue was raised by a liberal Democratic senator and that he expressed strong disagreement with the Court's holding. For reasons I outline in this article, I don't think that constitutional property rights will ever get more than minimal protection until liberal Democratic jurists as well as conservative Republican ones come to support them. Kohl's comments, like the broad political backlash against Kelo, which included numerous liberals and Democrats, represent a step in the right direction.

UPDATE: I should note that the stipulation by both sides that the land was not blighted is a factual determination that the courts were required to respect. In addition, it is important to emphasize that a "blight" determination is a legal term in property law. IN order to get an area designated as blighted, local governments must go through a special procedure under state law. Thus, it is not true, as some commentators claim, that the Court's recognition of the City's belief that the area was "economically distressed" enough to need "redevelopment" is essentially the same thing as a blight declaration. Economic "distress" has no legal significance in takings law and there are no formal criteria for declaring an area to be "distressed." Most importantly, the Court did not require that economic development takings only be undertaken in "distressed" areas. Rather Kelo permits economic development takings in any area, regardless of its prior economic condition.

In response to questions posed by Republican Senator Charles Grassley, Judge Sotomayor made another misstatement about Kelo v. City of New London:

[T]he issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the — the takings clause of the Constitution that requires the payment of just compensation when something is — is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose? And so the holding as I understood it in Kelo was a question addressed to that issue.

The problem with this answer is that Kelo didn't simply hold that the state could "contract with a private developer to effect the public purpose" justifying a taking. It held that the state could actually transfer ownership of the land to a private party and that this was a constitutionally permissible "public use" if done for the purpose of promoting "economic development." This is very different from simply hiring a private contractor to do work on public land, such as hiring a private construction firm to build a publicly owned bridge on government-owned land. Moreover, the "contract" metaphor is misleading, since the new private owners of condemned land in Kelo and other similar cases were not legally required by contract (or anything else) to actually provide any "economic development" - the "public purpose" that supposedly justified the condemnations in the first place (I cover this point in detail in this article, pp. 193-97).

The fact that Kelo allows the transfer of ownership to private parties who have no contractual obligation to provide economic development in exchange makes the case very different from merely "contracting with a private developer to effect the public purpose." If the private interest gets full ownership of the condemned land and does not have to provide any economic development in return, the risks of abuse are far greater than if a private entity is merely hired to do work on publicly owned land that it has a contractual obligation to perform.

In the same exchange with Senator Grassley where she misstated the holding of Kelo v. City of New London, Judge Sotomayor also defended her ruling in the controversial Didden case, where her Second Circuit Court of Appeals panel ruled that it was constitutionally permissible for a state to condemn property because the owners had refused developer Greg Wasser's demand to pay him $800,000 or give him a 50% stake in their business, threatening to have the property condemned if they did not comply. As I have argued in the past, this is precisely the sort of "pretextual" taking that even the Supreme Court majority in Kelo considered to be unconstitutional.

Responding to Grassley's questions, Judge Sotomayor claimed that the ruling was unexceptionable because it was based purely on the property owners' failure to file their case within the three year period required by the statute of limitations. Nothing to see here, let's just move on.

There are two serious problems with this explanation. First, Sotomayor's panel clearly addressed the substantive constitutional issue as well, ruling that "even if Appellants' claims were not time-barred, to the extent that they assert that the Takings Clause prevents the State from condemning their property for a private use within a redevelopment district, regardless of whether they have been provided with just compensation, the recent Supreme Court decision in Kelo v. City of New London . . . obliges us to conclude that they have articulated no basis upon which relief can be granted." Didden v. Village of Port Chester, 173 Fed. Appx. 931, 933 (2d Cir. 2006) (emphasis added). Thus, even if Sotomayor was right about the statute of limitations question, she still made a seriously flawed ruling on the far more important constitutional issue.

Second, as I explained in this amicus brief (pp. 14-16) coauthored with several other property scholars, the Second Circuit's resolution of the statute of limitations issue was in fact inseparable from its resolution of the substantive question. The court had ruled that the three year statute of limitations expired in 2002, three years after the declaration of the 1999 redevelopment plan that gave the city the authority to use eminent domain in the area. But the plaintiffs' property was not condemned at that time and Wasser did not make his extortionate threats until November 2003, after which their property was almost immediately condemned.

Until that time, it was impossible to file a pretextual taking claim because no pretextual taking had yet occurred or even been threatened. Judge Sotomayor's panel ruled that Bart Didden and Dominick Bologna's case was time-barred because she assumed that there is no legal difference between the mere declaration of a redevelopment area and the use of condemnation for purposes of extortion. The panel's seemingly technical procedural ruling was actually based on a serious substantive error about the law of pretextual takings, as described in Kelo.

The second point described above is probably too complex to discuss in detail in a televised hearing with strict time limits (though I do discuss it in my written testimony to the Judiciary Committee). For nonexperts, the important point to remember is the first one: Sotomayor's panel ruled on the constitutional property rights issue as well, not just the technical statute of limitations question.

A striking aspect of the Sotomayor confirmation hearing is that she got more questions about property rights than any other Supreme Court nominee in decades. In my post at the New York Times online panel on the hearings, I explain why this is a good thing, despite the generally unimpressive nature of her answers:

One of the most interesting developments in the hearings was the extensive questioning of Judge Sotomayor on property rights issues. In addition to questions posed by Republicans, Senator Herb Kohl, a Democrat from Wisconsin, criticized the Supreme Court's 2005 decision in Kelo v. City of New London, which allowed the condemnation of property for transfer to other private individuals to promote "economic development."

Unfortunately, Judge Sotomayor's testimony on property rights was not especially impressive...

Still, Judge Sotomayor's answers were less important than the very fact of the questioning. Property rights are unlikely to advance beyond the "poor relation" status to which the Supreme Court has generally relegated them unless liberals as well as conservatives begin to support them. The Sotomayor hearings are another step in the right direction. Along with the widespread criticism of Kelo by liberals like Bill Clinton, Ralph Nader and the NAACP, the hearings represent some real progress. Unconstrained use of eminent domain harms minorities and the poor, a reality that has caused some long-awaited rethinking on the left.

I should note that I did not mean to say that the hearings were a "giant" step forward for property rights. That title was drafted by the Times (I hope to get them to change it). Rather, I think they represent modest incremental progress in the right direction.

UPDATE: I accidentally forgot to link to my NY Times piece in the original post. The oversight has now been corrected.

As many of our readers know, I testified at Judge Sonia Sotomayor's confirmation hearings before the Senate Judiciary Committee today, on the subject of property rights. My written testimony (which is much more extensive than the brief oral testimony at the hearing), can be read here. It discusses - in greater detail than I could on this blog - Sotomayor's most notorious property rights ruling: Didden v. Village of Port Chester. I also analyze her much better ruling in Krimstock v. Kelly, a case that addressed an issue that will come before the Supreme Court this fall, in Alvarez v. Smith.

I realize, of course, that what I say is unlikely to affect the outcome of the confirmation process. Nonetheless, it was an honor to be the first witness ever called to testify at a Supreme Court confirmation hearing specifically about property rights issues. Far more importantly, the extensive focus on property rights at these hearings (especially compared to the near-total neglect of these issues when past nominees came before the Senate) is a good sign for the future.

UPDATE: A webcast of the oral testimony should probably be available at the Judiciary Committee website tomorrow.

UPDATE #2: A broadcast of the oral testimony is actually available at the C-SPAN website here. It is the first panel of the "evening" tape. My testimony begins around the 44th minute. There is also a question for me by Senator Jeff Sessions about 15-20 minutes later, where he says the testimony led him to think that the Didden case was worse than he had previously thought.

UPDATE #3: I have corrected the inaccurate link to my written testimony.

The Detroit Free Press recently published my op ed on Sotomayor and the Didden case:

It's not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London. But Judge Sonia Sotomayor, now herself up for the Court, succeeded. In the 2006 case of Didden v. Village of Port Chester she signed on to perhaps the worst federal court property rights decision in recent memory. In Kelo the Court held that the government can condemn a person's property and transfer it to someone else in order to promote economic development. In Didden, Judge Sotomayor's panel went further, upholding the government's condemnation of property after the owners refused to pay extortion money to a politically influential private developer.

This op ed is actually largely the same one as that published in the Orange County Register on Saturday. However, unlike the Register, the Free Press did not cut the parts responding to the main arguments advanced by Didden's defenders.

To no one's surprise, Sonia Sotomayor's nomination to the Supreme Court was approved by the Senate Judiciary Committee today, on a near party-line 13-6 vote (one Republican senator, Lindsey Graham, broke with his party and supported Sotomayor despite expressing serious reservations about her).

Despite this nearly-inevitable outcome, the hearings were far from a total loss for those of us who have serious doubts about Sotomayor's judicial philosophy and that of the president who selected her. Under questioning, Sotomayor was forced to repudiate two major precepts of liberal constitutional jurisprudence: reliance on "empathy" to help decide many important cases, and the use of international law as a tool for interpreting the US Constitution (except in very narrow and uncontroversial contexts, such as treaty interpretation). It's not every day that a Supreme Court nominee explicitly repudiates a central tenet of the judicial philosophy of the president who nominated her as clearly as Sotomayor did with empathy by stating that she "wouldn't approach the issue of judging in the way the president does." These concessions will make it harder for liberal jurists and political leaders to advocate empathy and international law in the future. If these liberal legal principles can't be openly defended by a minority nominee with an inspiring personal story, backed by a popular president, and facing an overwhelmingly Democratic Senate, it's not clear when they can be.

In addition, the hearings focused on property rights to a far greater extent than any previous Supreme Court confirmation fight. Both Republican and Democratic senators raised these issues. Senator Jeff Sessions, the ranking Republican on the Committee, even went so far as to list Sotomayor's notorious anti-property rights decision in Didden v. Village of Port Chester, first among the dubious rulings justifying his vote against her nomination (I discussed Didden in this op ed, and much more extensively in my testimony before the Committee). All of this is an important step forward for those who want to raise constitutional property rights up from their current "poor relation" status in the federal judiciary. It marks the rise of property rights as an important enough issue that every nominee to the nation's highest court must at least consider them.

Overall, Judge Sotomayor's supporters have good reason to be happy with today's outcome, and she herself deserves congratulations. But the tactics she and the administration adopted to win this battle could make it harder for them to prevail in the longterm war over the future of constitutional law.

NOTE: My linking of Senator Sessions' op ed doesn't necessarily imply agreement with everything he said there. For example, I think it is unfortunate, though understandable, that he cast his objections to Sotomayor as a a critique of her "judicial activism" - a term that I think has lost most of its intellectual coherence. I cite the op ed only because it is one of several indications of the rising prominence of property rights issues during the hearings.