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July 18, 2009

One more take on Sotomayer and the status of the Second Amendment

Today's edition of the Wall Street Journal includes this editorial headlined "Second Amendment Confidential: Sotomayor takes the Fifth on gun rights." Here are excerpts:

Now making their way to the Court are cases about whether the right to bear arms also applies to the 50 states via the Due Process Clause of the Fourteenth Amendment.  If it doesn't, then Heller is a hollow shell....

The Fourteenth Amendment was drafted in part to address the rights of freed slaves to carry a weapon against the efforts of some Southern states to proscribe that right.  Coming as the right to bear arms does in the Bill of Rights only after the freedom of speech, we think there's little doubt the Founders considered the Second Amendment "fundamental" enough to apply everywhere.

Judge Sotomayor has said that it would be appropriate to recuse herself from any rehearing of Maloney v. Cuomo by the Supreme Court, but this week she stopped short of promising to do so. Our guess, based on her history, is that she'll vote like the Court's four liberals who dissented in Heller and say gun rights don't apply to the states.

I am not sure that Judge Sotomayor's votes on these issues are so predictable, especially because many so-called liberals are eager to have a robust incorporation doctrine.  Moreover, as I have stressed in lots of prior posts, if the Founders truly "considered the Second Amendment "fundamental" enough to apply everywhere," I would also think they would have considered the Second Amendment "fundamental" enough to apply to everyone, including former felons and misdemeanants who have so far been left out of serious critical discussion of the Second Amendment's reach and limits.

Some related Second Amendment posts:

July 18, 2009 at 09:36 AM | Permalink


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"I am not sure that Judge Sotomayor's votes on these issues are so predictable, especially because many so-called liberals are eager to have a robust incorporation doctrine."

What do you think the odds are on getting cert granted for revisiting privileges and immunities? It'll be hilarious if cert is only granted on incorporation, the four liberals plus Kennedy for incorporation, then Scalia and Thomas dissent.

Posted by: . | Jul 18, 2009 10:07:40 AM

I'm not going to claim that this is dispositive of the matter, but my understanding is that being allowed to keep arms was one of the conditions that ensured a peaceful end to Shays' Rebellion. You may argue that rebellion is a different class from other crimes. Also, iirc at least one of the state's ratifying petitions that accompanied the constitution called for a 2nd amendment analog that protected the RKBA except in cases of actual crimes committed.

Both of these data points would tend to indicate that the founding generation considered disarmament a valid punishment for criminal activity, even if it was sometimes set aside for political expediency.

Certainly by the time the 14th amendment was ratified disarmament for rebellion was accepted (not sure about other crimes), though again it was mostly set aside for political reasons. And even more than today I imagine such attempts were all but unenforceable.

Posted by: Soronel Haetir | Jul 18, 2009 10:27:27 AM

Also, I would really appreciate it if you were to solve the 25 comment display limit issue. The aquitted conduct thread is still going strong but is now forced dead. Even a 'next page' link would be better than the current setup. Perhaps contact the law professors blog network folks and see if something can be done?

Posted by: Soronel Haetir | Jul 18, 2009 11:33:39 AM

Here's what one former felon did recently with his gun "rights":


Posted by: Bill Otis | Jul 18, 2009 11:42:33 AM

Bill, aren't you essentially adopting the argument of gun control fans: they say that because some people misuse guns to do harm, nobody should have a right to any guns. If you accept that argument for former felons, why is that not a good argument for everyone? A right is not really "fundamental" if we only afford it to people we like.

Posted by: Doug B. | Jul 18, 2009 11:57:05 AM

Prof B.,

Perhaps that just indicates that the Court has gotten itself too wrapped up in the terms of 'fundamental right', somewhat like Roberts' statement that strict, intermediate, etc levels of scruitiny are mostly 1st amendment baggage that shouldn't be wrangled into the 2nd amendment context.

Certainly there is an argument to be made that the ever finer distinctions exist simply to allow judges to do what they want under the circumstances of a case.

Posted by: Soronel Haetir | Jul 18, 2009 12:18:56 PM

I think folks are confusing "fundamental right" and "absolute right". Nobody is saying that anyone has an absolute right to possess a firearm anytime and anyplace they want to. I think the debate is related to whether the state has the burden of showing a gun law is reasonable or whether the def has the burden of showing it is not.

This is reminiscent to me to the old Equal Rights Amendment debate of 25 years ago. Some folks thought that if passed, the ERA would obliterate all distinctions based on gender. To me, the ERA also was just about who had the burden of proving constitutionality or unconstitutionality of a piece of legislation.

bruce cunningham

Posted by: bruce cunningham | Jul 18, 2009 12:55:37 PM

Doug --

"Bill, aren't you essentially adopting the argument of gun control fans: they say that because some people misuse guns to do harm, nobody should have a right to any guns. If you accept that argument for former felons, why is that not a good argument for everyone? A right is not really "fundamental" if we only afford it to people we like."

No, my post did not accept or advance any argument. It did no more than provide the link to an MSNBC story, whose truth is not disputed so far as I have seen.

If a point be made of it, I do not regard Constitutional rights as existing or not existing based on whom I "like." I think Heller was correctly decided -- all of it -- unlike the many liberals who fought it tooth and nail, and who now see in it only one thing.

Posted by: Bill Otis | Jul 18, 2009 2:26:45 PM

What "one thing" do you think "many liberals" see in Heller, Bill? You seem often certain about what liberals believe, but I am not sure what liberal (or a conservative) reall means these days. I do know that, if Second Amendment rights really are to mean something significant and really are to protect a natural right to self defense, it is hard to make a principled argument to justify categorically excluding ALL felons from ever having these rights.

I am sorry if I misunderstood your link -- I thought your point was to suggest that some felons will misuse any gun right we might recognize. I readily concede this point, which is why I focus on the felon issue in an effort to see how committed folks truly are to gun rights. I think few would claim that a felon completely loses forever his First or Fourth or Fifth or Sixth or Seventh or Eighth Amendment rights merely upon conviction of any felony. But that seems to be the prevailing wisdom for the Second Amendment (even among some of the Second Amendment's most vigorous supporters). That suggests to me that few REALLY consider Second Amendment rights to be as important or as "fundamental" as all the other rights secured by the Bill of Rights (some of which have not been incorporated against the states).

Posted by: Doug B. | Jul 18, 2009 5:57:31 PM

Doug --

"What 'one thing' do you think 'many liberals' see in Heller, Bill?"

That previously convicted criminals now have a Constitutional right to possess guns. I have yet to see here any discussion, much less serious advocacy, of the right of NON-CRIMINALS to possess guns. The District of Columbia (the losing party in Heller) is, as we speak, trying to put together gun control legislation that will go as far toward re-creating the pre-Heller regime as it thinks it can get away with. On the theory that constitutional rights belong as much to the law-abiding as they do to persons convicted of crimes, it seems odd that liberals do not speak out against DC's attempt to circumvent Heller. But if they have, I haven't seen it, here or anywhere.

"...if Second Amendment rights really are to mean something significant and really are to protect a natural right to self defense, it is hard to make a principled argument to justify categorically excluding ALL felons from ever having these rights."

I agree. If I am not mistaken, there is an ALREADY established doctrine that permits a felon who is truly, and through no fault of his own, in imminent danger of death or serious bodily injury to possess and use, at that time, a firearm to repel the danger. If such a doctrine does not exist, I would support its creation.

"You seem often certain about what liberals believe, but I am not sure what liberal (or a conservative) really means these days."

You tempt me, Doug, you really do, but instead of taking that delicious invitation and running with it to a zillion off-topic subjects, I'll just say (1) if you lived inside the beltway, as I do, there is no way to AVOID knowing what liberals believe (along with conservatives, libertarians, vegitarians, Druids and every other lobby in this town); and (2) generally, a conservative believes that we cannot spend our way to prosperity; we have to stop demanding entitlement programs we can't afford; limitless borrowing against the future will at some point become catastrophic; the CIA should be investigated for NOT killing active terrorists instead of for killing them (if it ever has); and that the criminal justice system is, by and large, fair, decent and accurate, rather than the malevolent creation of the Great Capitalist Imperialist Conspiracy.

Posted by: Bill Otis | Jul 18, 2009 8:31:34 PM

Bill Poser,

One problem I would state with the doctrine you just put forward is that by the time the danger becomes iminent enough there is no time for the typical person to legally aquire a firearm if they do not already possess one. Just like the DC ordinances struck down in Heller where people were in fact aquitted of manslaughter and other use related charges while still being convicted of possession charges, if you do not already have the gun handy somewhere when someone breaks down your door there simply isn't time.

It would however be nice if Congress were to once more fund the BATFE office wherein restoration investigations are lodged. And de-criminalize possession of body armor by felons. The natures of body armor and firearms are different enough that there is no reason to treat them the same.

Posted by: Soronel Haetir | Jul 18, 2009 10:13:38 PM

Sorry, Bill Ottis, not Bill Poser.

Posted by: Soronel Haetir | Jul 18, 2009 10:23:17 PM

I agree with Soronel and have often wondered why congress has not re-established the BATFE office where some felons could get their 2A rights back. I think some if not all could agree there are certain felons that could be trusted to possess a firearm. This is a topic that does not get enough attention. If cost is a big factor then pass some or all of the cost to the people trying to get their firearm priviledges back. Someone who has lost this right and really wants it back I think would be way less likely to re-offend.

Posted by: Anon | Jul 18, 2009 11:24:40 PM

Soronel's right, Bill, you're suggesting creating a meaningless "right" if it's only available when danger is "imminent." The right to self defense means little if you're disallowed from preparing to defend yourself until after you're attacked.

Also, in my experience with those who live inside the Beltway, there is often no way to avoid them ASSUMING they know what everyone else believes, nor is there any way to avoid those assumptions being inevitably false and reductionist. It's like asking a goldfish living inside a bowl to draw a floor plan of the rest of the house.

Posted by: Gritsforbreakfast | Jul 19, 2009 8:16:09 AM

Soronel Haetir and Grits --

"One problem I would state with the doctrine you just put forward is that by the time the danger becomes imminent enough there is no time for the typical person to legally aquire a firearm if they do not already possess one."

I see what you mean, but there is a countervailing problem. If you allow the previously convicted felon to possess the gun WITHOUT the requirement of imminent danger, you have effectively created an exception that will swallow the rule. Any felon could claim that, "Sure, I've had the gun for years -- indeed I got it the day I left prison -- but I could never know the exact moment I'd need it for self-defense, so I had no choice."

Thus, a self-defense exception molded in the way you seem to suggest would effectively end altogether the the bar on felons in possession.

One other problem when you start making exceptions for self-defense is that there is no logical place to stop. Typically, we are told that the exception would be narrowly drawn, and would be available only to "non-violent" felons. As Kent Scheidegger once illustrated, a history of "non-violent" convictions does not mean that the prospective gun owner is, in fact, non-violent, or is only the de minimus threat of aggressive behavior that the phrase "non-violent" is intended to imply. But putting that to one side, why should an admittedly VIOLENT felon be denied the right of effective self defense? Just because Mr. X is a thug doesn't mean that, at some point, somewhere, he won't have a legitimate need to protect himself.

It thus turns out that, while the initial offering of those who want to restore gun ownership to previously convicted felons SOUNDS carefully tailored, the LOGIC of their central self defense argument compels a much broader result. As soon as the ink is dry on the "limited" exception they say they are seeking, they will push that logic to where it actually goes. And where it goes is that previously convicted felons, no matter how dangerous and no matter how frequently involved in violent or aggressive behavior, will have the same right to arm themselves at will that everyone else has.

But they should not have such a right, nor does a society that cares about its safety embark on the path that leads to it. Congress, which right now is chock full of gun control people (namely liberal Democrats) will never buy it, nor will the Supreme Court (on which there was only the barest majority in favor of ditching the DC law, and which conspicuously noted in doing so that it was NOT invalidating the longstanding blanket felon-in-possession rule).

Posted by: Bill Otis | Jul 19, 2009 9:04:35 AM

Grits -- It's quite true that the inside-the-beltway crowd is often infected with hubris. Indeed it has seldom been truer than it is now. That being said, the same hubris is, I'm afraid, hardly confined to inside the beltway. Indeed, there are rumors that it extends as far as Cambridge, New Haven, Palo Alto, New York City and even Texas.

Posted by: Bill Otis | Jul 19, 2009 9:11:39 AM

When General Grant was exchanging letters with General Lee at Appomattox he included in his final missive (which was accepted: "The officers to give their individual paroles not to take up arems against the Government of the United States until properly exchanged, and each company or regional commander sign a like parole for the men of theer commands. The arms, artillary and public property to be parked and stacked, and turned over to the officer apppointed by me to receive them. This will not embrace the side-arms of the officers, nor their private horses or baggage. This done, each officer and man will be allowed to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside." The Civil War Memoirs of Ulysses S. Grant, Forge Publishing 2002.

One would suppose that when Grant sent these men home to Virginia and points south and west with their own horses and their sidearms while on parole for their taking up of arms against the Government of the United States, that he, and his brethern believed in some notion of gun rights. The rifles which were stacked, were beleived to be 'public property'. It is known that many men took their squirrel guns off to the war and many returned with them.

It seems to me that if a treasonous man with his loaded side arm holstered on his hip in public display, on parole for taking up arms against the government, could be allowed to pass through the District of Columbia on his way back to the farm outside Alexandria, Virginia, that an elderly defenseless widow living in a barred up tenament in the District today can have a hand gun on hand to prevent the burglar or rapist from crawling through a window.

I believe that this right to bear a firearm for protection in the home is one of the unenumerated rights of the Ninth Amendment. So I will throw that log on the fire.

Posted by: mpb | Jul 19, 2009 9:27:46 AM

Bill Otis,

My comment about BATFE was meant as a policy argument not constitutional. Bean already determined that there is no requirement that the BATFE rights restoration office be funded, and that indeed the choice not to fund the office removes any discretionary authority that POTUS or the Secretary of the Treasury might have to perform such restorations.

From a policy position I would also argue for a pardon system more in line with what I understand Canada to have, that something like 10 years after completing all terms of a sentence (including fines and fees) that a pardon is all but automatic. If we are going to allow someone the freedom to live outside a prison cell at some point we simply need to trust that they aren't going to reoffend.

Posted by: Soronel Haetir | Jul 19, 2009 11:16:13 AM

Bill: correct me if I am wrong, but it seems you agree that the "logic" of the Second Amendment and a right to personal self-defense suggests felons (after they have completed their lawfully imposed sentence) should have "the same right to arm themselves at will that everyone else has." Of course, this might seem like very bad policy to many elected officials, but a lot of constitutional rights surely might seem like bad policy to many elected officials (e.g., official in DC obviously think the Heller right is bad policy; many others think constitutional limits on campaign finance regulation or pornography are bad policy, etc).

I ask because I assume (perhaps improperly) that you are not a fan of Supreme Court justices who might believe their role is to "make sound policy" rather than seek to faithfully interpret and apply constitutional provisions. Thus I want to understand if, as the Second Amendment gets interpetted in the months and years ahead, whether you think judges should focus on they view as the logic of the Second Amendment or on what they view as sound gun control policy. Stated differently, are you asserting that any and every person, once convicted of a felony or even a misdemeanor, forever loses their inherent personal right of self-defense?

Posted by: Doug B. | Jul 19, 2009 1:59:38 PM

Doug --

As bruce cunningham pointed out, Constitutional rights can be fundamental but not absolute. The logic of the First Amendment would assuredly allow a person to shout "FIRE!!!" in a crowded theater. But no serious person believes the First Amendment extends that far. That judges also believe it does not make them "activists" or molders of policy better left to the legislature. It makes them normal people.

Similarly, it does not take a wild-eyed judicial activist to believe that, self-defense notwithstanding, firearms should be unavailable to children, lunatics and persons with criminal backgrounds.

Moreover, it is not the judiciary in the first instance that makes these judgments. It is the legislature (specifically Congress). If it's judicial activism you're suspicious of, you're far more likely to find it in a judge who is willing to OVERTURN legislatively-imposed restrictions -- restrictions that have a strong historical pedigree and a recent unambiguous re-affirmation (albeit in dictum) in the Supreme Court's Heller opinion.

Isn't it time to take this argument to those who can actually help you out? The Congress is overwhelingly in the hands of liberal Democrats. I'm neither a liberal nor a Democrat. I couldn't help you even if I thought re-arming felons was a good idea, which I don't. But Nancy Pelosi, John Conyers, Harry Ried and the crew can actually change the law.

Go to it, and good luck!

Posted by: Bill Otis | Jul 19, 2009 5:31:19 PM

Doug --

One other point I should make about judicial activism: I don't believe it makes a judge an activist to believe what the great majority of the citizens believe and have believed for a long time. Thus, as noted, it does not make a judge an activist to hold that a person may not shout "FIRE" in a crowded theater, notwithstanding the fact that this is "pure speech" and thus protected under the logic of the First Amendment.

A judge risks becoming an activist when, based on personal views lacking either historical pedigree or public of judicial consensus, and which the legislature does not share (and may explicitly have rejected), he overturns statutes that he regards as backwards.

One example of this is the current debate about gay marriage. Congress enacted, and President Clinton signed, the Defense of Marriage Act, which would certainly seem to preclude same-sex marriage. Many states have adopted similar or identical statutes. For a judge to overturn these statutes would, it seems to me, be a clearcut case of judicial activism. There is no historical pedigree for homosexual marriage, and there is no judicial or public consensus favoring it. Most important, the issue cuts to the heart of democratic self rule. If the people, by their political process, cannot decide what the basic unit of society will be, then it is difficult to imagine what decision is left to them. We might as well pack up the political process and let judges decide everything.

By saying this, I intimate no view on whether the Defense of Marrigage Act is wise or fair. My sole focus is on delineating what standards to employ in deciding who should get tagged as a "judicial activist."

Posted by: Bill Otis | Jul 19, 2009 5:54:58 PM

The right to privacy in one's home is set forth in the Fourth Amendment. The right to bear arms is set forth in the Second Amendment. Both are enumerated rights. The states may not take your unenumerated rights according to the Ninth Amendment. The right to bear arms to protect one's privacy and security in one's home is part of that penumbra that some conservatives would like to savage when it comes to the right to keep the government out of the bedroom or to choose medical care. I favor gun rights and I say that we need to hold our noses and vote for the penumbra. We need to assert the Second, Fourth, Ninth and Fourteenth Amendments--'taken together'. If that is judicial activism then I would like to see more of it. I suppose that U.S. Grant was an activist when he paroled the Confederate Army and sent them home with their sidearms in April 1865. That was before the 14th Amendment. One of those fundamental penumbra sort of notions.

Posted by: mpb | Jul 19, 2009 11:28:13 PM

That folks expect that the cultural pendulum will not, or should not, swing back and forth, and that Newtonian physics are not applicable to life, is fascinating. Elected officials come with all points of view, and represent the full spectrum of values. Why shouldn’t the people who they appoint? "You Can't Always Get What You Want."

Posted by: Reggie Greene / The Logistician | Aug 6, 2009 12:05:38 PM

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