Lund: Sotomayor and the Second Amendment

Professor Nelson Lund argues that Supreme Court nominee Sonia Sotomayor has ignored recent relevent precedents allowing gun ownership under the Second Amendment. "Can anyone expect that to change if she is confirmed to the Supreme Court?" he asks.

Sotomayor's supporters claim that she was applying settled precedent in recently holding that the Constitution does not protect the right to keep and bear arms against infringement by state and local governments; however, Lund points out that Sotomayor's reasoning was based on nineteenth century decisions without regard for more recent caselaw.  

In several twentieth century cases, says Lund, the Supreme Court held that most of the rights protected against the federal government by the Bill of Rights are also "incorporated" against the state governments by the Due Process Clause of the Fourteenth Amendment. He notes that the Court's decision in Heller last year made clear that a due process analysis is "required" under its twentieth century caselaw.

"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 and 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," says Lund. "The Supreme Court's twentieth century incorporation cases are the most relevant precedents, and Judge Sotomayor completely ignored them."

Sotomayor and the Second Amendment, RealClearPolitics, July 12, 2009. By Nelson Lund.

"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. Accordingly, the Court struck down a D.C. statute that outlawed the possession of handguns.

"Since 1822, it has been settled that the Bill of Rights does not apply to state laws, but only to federal legislation like that involved in the D.C. case. In 1868, however, the Fourteenth Amendment imposed new restrictions on the States, forbidding them to abridge the 'privileges or immunities' of American Citizens or to 'deprive any person of life, liberty, or property without due process of law.'

"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 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."

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