A Little Lesson on Incorporation

Yesterday’s Sotomayor grilling was exasperating in some ways. I will be thrilled if I never hear the words “wise Latina” ever, ever, ever again. But there will be no respite.

On the bright side, Sotomayor’s conscientious explanation about the Bill of Rights being incorporated against the states (or not! hi, 7th amendment right to a jury trial) was lovely. Tuesday she took the opportunity to point out that in addition to her own 2nd Circuit [and the 9th Circuit—but she wisely omitted the West Coast liberals], the fairly conservative 7th Circuit—and the definitely conservative panel that heard the case—held that the 2nd Amendment was not incorporated against the states. (This would mean that D.C. v. Heller, in which the Supreme Court struck down certain handgun regulations in the federal district of D.C., does not apply to similar regulations in Chicago or New York.) There’s a good rundown and context here. But yesterday’s explanation was very patient—more of what I’d like to see from these hearings. I think it’s worth quoting at length, but I’ll hide it behind the jump.

Otherwise, not the most exciting day of testimony.

The New York Times has a very smart news analysis piece about what these hearings portend for future Obama nominees. It pits the liberal Georgetown professor I quoted yesterday (basic position: by giving up the opportunity to defend a more realistic vision of what a Supreme Court Justice does, the Obama administration is making it difficult to appoint a more liberal and/or more candid person later on) against others who feel the process is going just dandy (basic position: a smooth confirmation process, no matter the judicial philosophy espoused therein, will make the next nominee appear more formidable). I highly recommend it.

The hearings start up again today at 6:30 Pacific time.

SOTOMAYOR: In the Supreme Court’s decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal — the federal government could take with respect to the possession of firearms. In that case we’re talking about handguns.

The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn’t have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It’s sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.

COBURN: Through the 14th Amendment.

SOTOMAYOR: Through — and others. But the — generally. I shouldn’t say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with — for us was a very narrow one. We recognized that Heller held — and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.

The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it’s not, so it wasn’t fundamental in that legal doctrine sense. That was the Court’s holding.

COBURN: Did the Supreme Court say in Heller that it definitely was not? Or did they just fail to rule on it?

SOTOMAYOR: Well, they failed to rule on it. You’re right.

COBURN: There’s a…

SOTOMAYOR: But I…

COBURN: There’s a very big difference there.

SOTOMAYOR: I agree.

COBURN: OK. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law in the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today?

SOTOMAYOR: It’s not how I see the law.

COBURN: Well, as you see the interpretation of the law today? In your opinion of what the law is today, is my statement a correct statement?

SOTOMAYOR: No, that’s not my interpretation. I was applying both Supreme Court precedent deciding that question and Second Circuit precedent that had directly answered that question and said it’s not incorporated. The issue of whether or not it should be is different question, and that is the question that the Supreme Court may take up. In fact, in his — in his opinion, Justice Scalia suggested it should. But it’s not what I believe. It’s what the law has said about it.

COBURN: So what does the law say today about the statement? Where do we stand today about my statement that I have — I claim to have a fundamental, guaranteed, spelled-out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?

SOTOMAYOR: I can’t answer the question of incorporation other than to refer to precedent.

COBURN: OK.

SOTOMAYOR: Precedent says, as the Second Circuit interpreted the Supreme Court’s precedent, that it’s not — it’s not incorporated. It’s also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. And by that I mean, what the Court with look at is a state regulation of your right.

COBURN: Yes.

SOTOMAYOR: And then determine can the state do that or not. So even once you recognize a right, you’re always considering what the state is doing to limit or expand that right and then decide is that OK constitutionally.