Senator Franken is at the plate.
But you know that about half of them would put out for that…
There are a couple posts on Volokhregarding Sotomayor’s misunderstanding of incorporation.
Summarizing, she seems to say that rights are fundamental if they are incorporated, not incorporated because they are fundamental. Does she not understand the distinction here?
Here are a couple more comments on Volokhregarding her ruling in the Didden case and her undertanding of Kelo. Both of which make her appear to not understand the issues that were presented in those cases.
Are these fair interpretations of her understanding?
Both Somin and Barnett launch several claims, so there’s a lot of things to address in those posts.
Some of their criticisms depend on their personal convictions about various aspects of the law, and cannot rightly be called corrections (e.g. the statute of limitations on a takings claim should run from actual condemnation rather than the announcement of the redevelopment plan). They have arguments that she is wrong, but they are arguments about how the law should be understood as opposed to arguments about what the clear precedent states.
Others of their criticisms are correct. Ilya Somin is correct in pointing out that Kelo was about economic development of a non-blighted area, as opposed to ending the blight in an area. It is a very important line to people who share Somin’s view that property rights need much more protection and that most current judges fail to adequately protect them, but it is not objectively the kind of egregious error she makes it out to be given the context of a casual answer to a question from memory.
If you pick one of their claims specifically, maybe we can hash it out in more depth.
Ilya is a man. He’s part of the Russian mob of law professors at Volokh.
Although I’m loath to admit it, Scalia is often very persuasive. I think he’s definitely brilliant—it’s just that I often disagree with the man on a case by case basis. Originalism, in my view, blows severely.
I actually knew that, I just have a terrible habit of letting my pronoun follow however my brain has categorized the name. I’m dogsitting right now and I keep calling the female dog, George, a he.
FWIW, I usually enjoy his* posts on VC. You just have to read them knowing his perspective.
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- totally typed she, again, when first writing this.
You genderist pig you! 
Here is a section from Barnett:
My bolding, taken from Volokh.
Those statements together lead me to draw the conclusion that Sotomayor believes rights are fundamental if they are incorporated. Not that rights being fundamental is an aspect of a test to determine if a right should be incorporated through the Privledges or Immunities clause of the 14th.
Since 2nd ammendment incorporation is likley going to be address in the next session with the circuit split between the 9th and the 7th and 2nd, I think this is an important issue in which she seems to get wrong.
IANAL (just a masochist who listens to these things), so I was wondering if someone who is a lawyer (IAL!) would mind explaining, briefly, this issue for me? It’s a little jargony for us laypeople.
CityGroup can shoot you, they are incorporated. You can’t shoot back.
No, she doesn’t have it wrong, she wasn’t talking from a grand perspective of personal philosphy, she was talking about what she had to decide, at a particular appellate level, not at the SCOTUS level. The Supreme Court had not yet incorporated that right, so she was saying it wasn’t her place at that level, to decide, all by herself, that it was a fundamental right which was binding on the states.
From what I’ve seen, Sotomayor has refused to define rights in terms of anything but written law and legal precedent, not opinions or philosophy. I think she felt the question of whether Heller should be incorporated was not a question before her at that time, and any question about what she’ll do if it does come before her as a SC Justice is too hypothetical to answer.
She wasn’t saying “The right to bear arms is not fundamental,” she was saying “That had not been definitively determined when I got that case.” She wasn’t expressing an personal opinion the right to bear arms, just the opposite, she was slipping that question completely.
Since Heller was prior to the 2nd circuit hearing their case, instruction in Heller would seem to have required an analysis whether a right was fundamental and should be incorporated. This is how the 9th ruled in Nordyke when they did in fact incorporate the 2nd ammendment. It isn’t only the SCOTUS that can incorporate if the question before the appelate court is incorporation.
Sotomayor in the 2nd didn’t even perform the test. It sounds like this is because she doesn’t understand incorporation, or she conveyed her understanding of it poorly. I tend to think her personal opinions influenced whether or not the test was to be performed, but that’s just conjecture.
This is, so far as I can tell from the Volokh quote, right on target. As an appellate judge, she was required to follow SCOTUS precedent – which had not granted “fundamental” status to the right to bear arms. Not that she believes that the right to bear arms is or is not fundamental, not that she believes that only rights already incorporated are fundamental – but that she was not entitled to go against binding precedent in her previous role.
There was no such instruction in Heller.
I think Barnett’s argument is that because SCOTUS has eliminated incorporation under the privileges and immunities doctrine, and because Heller called into question the precedent without directly ruling on the issue, the previous holding upon which Sotomayor relied was no longer good law.
That strikes me as a decent argument for why an appellate judge should have examined the issue in more depth. But I don’t think it is quite right to say she’s outright wrong on the issue, since the question of whether a prior holding has been overruled by implication is always murky.
As to whether she misstated the test, that’s a bit hard to establish since no one knows what the test is, exactly. We do know that fundamentalness is not a property that follows from incorporation. To the extent her comments suggest that, she clearly is wrong or misspoke. But I recall that she pointedly refused to state what she thought the test was because that is itself a matter that will shortly be before the court.
IANAL either, but I can answer your question (I hope). I haven’t been keeping up with the thread, so I’m going to explain all of it.
The Constitutional amendments only applies to the federal Government, not the States (so, the States could restrict your free speech, but not the feds). That was until the 14th Amendment. The 14th lets the bill of rights apply to the States (this is lawyer stuff, but it’s through the due process clause. I don’t think it’s the Privilege and Immunities clause, even though that would make more sense); but, not all of the bill of rights are automatically incorporated through the 14th amendment. Only if they are considered “fundamental” rights. The 1st is obviously fundamental, but others vary. What fundamental means has changed from era to era.
Today just about all the bill of rights have been incorporated through the 14th amendment and apply to the States because they are “fundamental”, except: (2nd) the right to bear arms, 3rd Amendment, (5th) grand jury in a criminal case, (7th) right to jury in a civil case, (8th) excessive fines.
So, Sotomayor was saying the 2nd amendment is not fundamental in the sense that it has not been incorporated in her circuit, not that it’s not a deep-seated right.
This was not brief.
To add to what CoolHandCox explained, the wrinkle here is that the reasoning by which rights are incorporated against the states has changed. At one time the reasoning was that the privileges and immunities clause of the Fourteenth Amendment included fundamental rights. After that clause was eviscerated of meaning, the Supreme Court reasoned that the liberty clause encompassed those liberties that are fundamental.
The argument is that since the ruling about the lack of incorporation of the Second Amendment was under the privileges and immunities clause, Sotomayor was not bound by precedent on the question of whether the right is fundamental under the liberty clause.
From wiki: