July 9, 2009

Over one thousand law professors*

Always, Leah.

One thousand law professors, including two from Marquette University in Milwaukee, sent a letter of support for Sonia Sotomayor to Patrick J. Leahy and Jefferson Beauregard Sessions III, respectively the chairman and the ranking Republican on the Senate Judiciary Committee:
As a federal judge at both the trial and appellate levels, Judge Sotomayor has distinguished herself as a brilliant, careful, fair-minded jurist whose rulings exhibit unfailing adherence to the rule of law. Her opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution. She pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society.
True dat. A perfect example following.

Speaking of Jefferson Sessions, he appeared on the Fox News Channel yesterday complaining about Sotomayor's attitude toward the Second Amendment. Sessions whined that Sotomayor doesn't think that keeping and bearing arms are fundamental rights.

It's a stupid and inflammatory thing to say outside of its proper legal context. But obviously it's Sessions's game to misinform and inflame his constituents.

In constitutional law, "fundamental right" is a term of art that derives from decisions by the Supreme Court on whether or not to incorporate provisions of the Bill of Rights to restrict the actions of State and local governments. Those provisions must be found to contain fundamental rights before they can be incorporated.

The fact of the matter is, the Supreme Court has never incorporated the Second Amendment and States remain empowered to regulate weaponry beyond the Amendment's restrictive reach, as it only applies to the federal government's jurisdiction.

Don't believe me, ask Frank Easterbrook.

So it's true that the United States Supreme Court has yet to rule that the Second Amendment contains fundamental rights and Sotomayor, in her official role as a member of one of the subordinate federal courts, was entirely correct in following that precedent.

Moreover, if Senator Sessions is not aware of the several active petitions to the Supreme Court asking it to incorporate the Second Amendment, then he is clearly in the wrong line of work.

Sessions criticized Judge Sotomayor for allegedly holding that the foregoing is a matter of "settled law," and claimed that he wasn't so sure about that. Sessions was presumably referring to a recent decision of the Ninth Circuit Court of Appeals which held that the Second Amendment does indeed apply to the States (at least, those nine States within the Ninth Circuit, and Guam).

But that decision came after Sotomayor's Second Amendment opinions and anyway, the Ninth Circuit has little to do with the Second Circuit in terms of precedent. So yes, as far as Sotomayor's decisions go, it was and is a matter of settled law. End of story.

It's also amusing that Sessions is implying that Sotomayor hasn't been activist enough, and doubly amusing that he's telegraphing his desires that Sotomayor would defer to the Ninth Circuit, of all things, one of the archetypal conservative Republican bugaboos.

Only when convenient, as usual.

Not that the average Fox News enthusiast/Bill-O fan would be aware of any of this — or even care, probably — and not that Jefferson Sessions would be honest enough to explain it to them, of course.

That's far too much to expect of this transparent politician.

* This should be "more than" one thousand law professors.


Leif Rakur said...

Incorporating the Second Amendment to apply it against the states would be to invert the amendment’s original purpose. That purpose was to prevent federal elimination of the militia, which the states had created to meet their own security needs:

"It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia." (District of Columbia v. Heller, Opinion of the Court, p. 26)

Far from supporting the original state-security purpose, incorporation proposes a new and contradictory one – to prevent the states from passing firearm legislation they deem necessary for their public’s security.

The Second Amendment would become the Bill of Rights' first flip-flop amendment .

illusory tenant said...

Thanks, Leif. And that's pretty much why I would expect Clarence Thomas to oppose the 2A's incorporation, as a similar rationale underlies his opposition to incorporating the Establishment Clause.