In light of the Seventh Circuit’s opinion in NRA v. City of Chicago, holding that Supreme Court precedent binds the court to hold that the Second Amendment does not apply to the states, it is useful to note a key distinction between that case and Sotomayor’s in Maloney v. Cuomo. Notably, in Maloney, Sotomayor joined an opinion finding that New York’s weapons law did not “interfere with a fundamental right.” (She had expressed similar views pre-Heller, when she joined an unpublished opinion stating that “the right to possess a gun is clearly not a fundamental right.”) As such, Sotomayor has the distinction of having voted with the only court of appeals decision to so denigrate Second Amendment rights after Heller. The Ninth Circuit in Nordyke v. King found that the right to bear arms is a fundamental right deeply rooted in this nation’s history and tradition, and the Seventh Circuit in NRA, applying what Eugene Volokh ably dissects as undue judicial restraint, did not speak to the question.
Sotomayor’s defenders will gleefully cite to the Seventh Circuit’s opinion in NRA to cast her decision refusing to apply the Second Amendment to the states as a restrained decision. But her glib assertion that Second Amendment rights are not fundamental undermines this claim, and puts her well outside the judicial mainstream. The lack of any support for the statement regrettably tracks her similarly glib decision in Ricci v. DeStefano, the New Haven firefighters case currently pending before the Supreme Court, in which Clinton-appointee Judge Cabranes chided her panel for failing to even address the constitutional questions. There, as here, her defenders have made the thin assertion of restraint. There, as here, her grossly adequate treatment of claims makes clear that she was seeking to impose her own policy preferences under the pretext of restraint.
Furthermore, unlike Easterbrook, who may well have ruled contrary to his own personal policy preferences, Sotomayor’s ruling seems to have reinforced them. The question for those reading her Second Amendment case to divine whether she was actually acting with “restraint” or giving short-shrift to claims she disfavored is this: do you honestly believe that Sotomayor would have adhered to old, dismissed, and distinguishable precedent (i.e., precedent interpreting a different clause in the Constitution (Privileges and Immunities) than the claim (selective incorporation through the Due Process clause) raised before her), if the case involved something that evoked her “empathy,” like a question of race or gender? Her own statement that judges are not able to put aside their biases in most cases (and suggesting that it might be a disservice to the country for her to do so) would seem to answer that question.
Legal academics have great fun discussing the doctrine of incorporation—the process by which selective rights in the Bill of Rights are made applicable to the states. But Judge Sotomayor’s opinion reveals little about her views on this doctrine, while suggesting a hostility to and willingness to be dismissive of Second Amendment rights.