Sotomayor and Hatch on Second Amendment Incorporation

Sen. Orrin Hatch (R-UT) today questioned Supreme Court nominee Judge Sonia Sotomayor on Second Amendment application to the states.  The exchange--or, rather, Hatch's statements--reveal several political and doctrinal problems for those who simultaneously favor Second Amendment incorporation, originalism, and a restrained judiciary.  Under Supreme Court precedent, these values are in fundamental tension in the incorporation debates, and only the Supreme Court can provide a solution.  (But, ironically, the solution for this camp may be worse than the problem.)

Here's part of the exchange:

Hatch: I understand.  Let me turn to your decision in Maloney v. Cuomo.  [Our post, by RR, here.]  This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court.  I think I should be more specific.  In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller.  And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?

Sotomayor: That, plus some Second Circuit precedent that had held . . .

Hatch: OK

Sotomayor: . . . that it had not been--that the amendment had not . . .

Hatch: But Presser was definitely one of the . . .

Sotomayor: It was, but . . .

Hatch: . . . cases you relied on?  OK.  In that case--or, I should say, that case involved the Fourteenth Amendment's Privileges and Immunities Clause.  Is that correct?  You're aware of that?

Sotomayor: It may have.  I haven't read it recently enough to remember exactly.

Hatch: You can take my word on it.

Sotomayor: OK.  I'll accept . . .

Hatch: Thank you.  Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the Court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of Fourteenth Amendment inquiry required by our later cases," unquote.

Now here's my question: Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's Due Process Clause rather than its Privileges and Immunities Clause?

. . .

Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the Privileges and Immunities Clause, not the Fourteenth Amendment Due Process Clause, to incorporate?

. . .

Well, the reason, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the Privileges and Immunities Clause and not the cases that used the Fourteenth Amendment Due Process Clause.

. . .

Well the point that I'm really making is that the decision was based upon a 19th century case that relied on the Privileges and Immunities Clause, which is not the clause that we used to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.

The problem is that the values of Second Amendment incorporation, originalism, and a restrained judiciary (or at least a restrained circuit judge, one who does not make policy) run up against each other under the Court's jurisprudence.  Under Hatch's 19th century cases--which, alas, are still good law--Judge Sotomayor could not have incorporated the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.  Everyone--including the Seventh and Ninth Circuits--seems to agree on this.

But then judicial restraint runs up against incorporation: a restrained circuit court judge should not incorporate the Second Amendment under the Due Process Clause; this is a job for only the Supreme Court.  (Favoring incorporation over the value of a restrained circuit judge puts Hatch in the surprising company of the Ninth Circuit--the archetypal "activist" court--and at odds with a Seventh Circuit panel that included Judges Easterbrook and Posner.)

And originalism runs up against both Due Process incorporation and the desire for restrained circuit judges.  An originalist method would point to incorporation--by way of the Privileges or Immunities Clause, not the Due Process Clause.  But this would have required Judge Sotomayor to vote to ignore those 19th century cases--clearly beyond a restrained circuit judge's authority.

The best a restrained circuit judge could do is exactly what Judge Sotomayor--and Judges Easterbrook and Posner--did: punt on Second Amendment incorporation until the Supreme Court rules.

Those simultaneously committed to Second Amendment incorporation, originalism, and a restrained judiciary shouldn't fault Judge Sotomayor for her restrained decision in Maloney.  Instead, they should press the Supreme Court to overturn those 19th century cases and incorporate the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.

But for this crew, this solution might well be worse than the problem.  A revitalized Privileges or Immunities Clause could provide strong ammunition for those who seek more and broader unenumerated (and politically controversial) rights through the courts and a greater role for the federal courts in protecting individual rights against the states.

SDS