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Sotomayor and the Second Amendment

Despite a lengthy tenure on the federal bench (about six years as a federal district court judge and 11 years on the 2nd Circuit Court of Appeals) Obama's SCOTUS nominee, Sonia Sotomayor, has decided few controversial constitutional cases. The thinness of her constitutional record may draw senatorial attention to a recent per curium opinion in which she and two other 2nd Circuit Court judges held that the Second Amendment right to keep and bear arms - recently declared an individual right by the Supreme Court in District of Columbia v. Heller - does not apply to the states.

The panel makes what superficially appears to be a strong argument: the Supreme Court directly held in Presser v. Illinois, 116 U.S. 252 (1886) that the Second Amendment does not bind the states, it reasoned, and lower courts are obligated to follow even antiquated SCOTUS precedent if it is directly on point.

What the panel missed, however, was the significance of the fact that Presser was decided before the development of modern incorporation doctrine, which applies most of the bill of rights to the states through the Due Process Clause of the 14th Amendment. The Presser court therefore addressed only the issue of whether the Second Amendment applies to the states directly, and did not consider the question of whether the Second Amendment is incorporated by the 14th Amendment.

A Ninth Circuit panel recently took this better view, holding that Presser did not control the question of incorporation and that the individual right to keep and bear arms does indeed apply to the states via the 14th Amendment's Due Process Clause.

The legal argument for incorporation of the Second Amendment is pretty strong, and it's hard not to see the 2nd Circuit panel's opinion as deliberately ducking a question about which its members, including Sotomayor, might have had public policy misgivings. Look for some close questioning about the Second Amendment during Sotomayor's confirmation hearings from senators close to the NRA and other gun rights groups.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.