Another Volokh conspiracist

Some time ago, after I'd obtained my law degree, I had lunch with one of my professors, who I kept calling, "Professor."

"Will you please stop calling me 'Professor,'" he said. "We're colleagues now." "I can't help it," I replied, "I have too much respect for the legal academy's knowledge, wisdom, and objectivity."

"Well then," said he, "obviously you haven't met enough of us."

This time around, meet Prof. Randy Barnett:

One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental.

I was paying particular attention to Judge Sotomayor's Second Amendment exchange with Orrin Hatch, and have written about these questions here before on several occasions.

It's true that in constitutional law, provisions of the federal Bill of Rights are deemed to apply to State and local governments — incorporated — after a finding that they are "fundamental."

That's the process, in chronological order.

By the same token, once rights have been incorporated, there's nothing wrong with saying they're fundamental, in the constitutional sense. But that's not the same as claiming that rights become fundamental by dint of their incorporation.

What Prof. Barnett is charging is that Sotomayor thinks rights are fundamental only because they've been incorporated.

During the opening moments of her exchange with Senator Hatch, Judge Sotomayor responded:

It's not that I considered [the right to keep and bear arms] unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the State.

"Fundamental, so as to be incorporated." Exactly right. In fact, I can't think of a way to put it any more succinctly.

Sotomayor is referring to her decision in Maloney v. Cuomo and with "Supreme Court" she's referencing D.C. v. Heller. Seems pretty clear to me, that finding the right to be fundamental precedes a determination of incorporation, which is what Sotomayor said.

Prof. Barnett's proffered "evidence" for his allegation:

Here is her characterization of a "fundamental right":

SOTOMAYOR: Those rights have been incorporated against the States. The States must comply with them. So in — to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are — they have been deemed fundamental, as that term is understood legally.

And by "evidence" I mean, of course, "zero evidence."

[Edited to add, 07/16/09: Later in the hearings, presented with the same line of questioning, Judge Sotomayor said, "Fundamental, hence incorporated." So she did come up with an even more succinct means of expressing the procedural chronology after all.]

These folks are really clutching at straws here. But the worst offender continues to be Senator Jefferson Beauregard Sessions III, who has been bandying the expression "fundamental right" against Judge Sotomayor without any context whatsoever, in an attempt to make it look like she is opposed to the right to keep and bear arms.

There's no evidence of that either. In her Second Amendment rulings, Judge Sotomayor has carefully followed the precedent within the Second Circuit, which in turn is driven by Supreme Court case law.

Any suggestion by Sessions and others that she should have done otherwise is an expression of desire for "judicial activism."