Sotomayor and the Second Amendment

Over the past few days, I’ve been reading some of Sonia Sotomayor’s legal decisions, trying to get a sense of her judicial philosophy. Like many conservative commentators, I am very uncomfortable with the Second Circuit Court’s panel decision in Ricci v. DeStefano – mainly because Sotomayor and her fellow justices overlooked or ignored a number of important constitutional considerations when they delivered their six-sentence ruling.

But there’s another of Sotomayor’s decisions that really bothers me. The case is Maloney v. Cuomo.

Here’s a bit of background: James Maloney, the plaintiff-appellant in the case, filed suit against the NYPD for arresting him in his home on charges of “chuka stick” possession. When his action was defeated in the lower courts, Maloney appealed to the United States Court of Appeals for the Second Circuit, arguing that New York’s statutory ban on chuka sticks violates “the Second Amendment because it infringes on his right to keep and bear arms.”

In a per curium decision, the Second Circuit Court upheld the New York weapons ban, and argued that the Second Amendment does not apply to the states. The court cited only the 1886 precedent in Presser v. Illinois to justify its ruling.

As a strong proponent of mechanical incorporation, I’m appalled at this decision. I have always found the notion of selective incorporation – the idea that the Due Process Clause applies only certain amendments in the Bill of Rights to state and local governments – quite alarming. But far more alarming, in my view, is the fact that Sotomayor and her fellow justices felt little need to clarify such an illogical reading of the Constitution.

The Ninth Circuit Court recently did incorporate the Second Amendment against all of the states within its jurisdiction – and offered a consistent, reasoned explanation for its decision. So, at the moment, the Second Amendment applies to certain states, but not others.

Even if you’re not a strong supporter of the Second Amendment, you should really be dismayed by the idea that constitutional protections need not be uniform across state lines – and that justices can arbitrarily choose which amendments should apply to the states.

In truth, I think I would find the concept of an “implied” right to privacy that extends to all of the states through the Due Process Clause much easier to swallow if the courts would finally incorporate the explicitly enumerated right to bear arms.