On Sotomayor: Koschnick's non-sense

Part Two of Three

Jefferson County Circuit Judge Randy Koschnick has some very harsh words for U.S. Supreme Court nominee Sonia Sotomayor.

Not only are they harsh, but they're flat wrong. They're also comically uninformed and, ultimately, alarmingly irresponsible coming from a professional judge, one who notably declared himself "more qualified" to sit on the Wisconsin Supreme Court than is its Chief Justice.

Of course Koschnick is simply pandering to a certain right-wing political constituency and he's entitled to his personal views, but at least he might actually read the opinions upon which he pontificates.

More importantly for a judge, he should find out whether they're even good law before celebrating them. Or using his odd misapprehensions of those cases to unprofessionally slag Judge Sotomayor.

On a favorite topic, guns, Koschnick alleges that a recent per curiam opinion of the Second Circuit Court of Appeals in which Judge Sotomayor participated "reveals [Sotomayor's] unabashed, open hostility to the Constitutional rights of gun owners."

This is pure, unsupported fantasy, which apparently purports to derive from the Second Amendment case law. Here, Koschnick takes a run at constitutional scholarship:

Despite the unequivocal holding by the United States Supreme Court in [District of Columbia v. Heller] that the Second Amendment actually does guarantee individuals the right to bear arms, in the 2009 case of Maloney v. Cuomo, Judge Sotomayor ruled that state governments do not have to abide by the Second Amendment.

First off, the non sequitur.

Whether the Second Amendment guarantees an individual right — as opposed to a collective one: see Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) — is a separate question from whether it restricts State and local governments.

Thus, Koschnick's reasoning does not follow.

That Heller ruled the 2A protects an individual right has nothing to do with its application to the States, or what the courts call "incorporation." Heller is about gun laws in D.C., a federal enclave, and it did not even engage the question of whether the States have to abide by it — apart from explicitly mentioning that they don't.

It says so right in its famed footnote 23, where Justice Scalia, discussing some earlier Supreme Court decisions, points out two things: 1) that incorporation is a question not addressed in Heller and 2) that "our later decisions ... reaffirmed that the Second Amendment applies only to the Federal Government."

"Only to the Federal Government" = "Not to the States."

But wait, it gets better, much better:

Sotomayor’s position is to the left of even the activist Federal Ninth Circuit Court of Appeals in San Francisco, which concedes, albeit reluctantly, that Heller prohibits both state and federal interference with the gun rights of law-abiding citizens.

This is an astonishing misreading of both Heller and the referenced Ninth Circuit decision, Nordyke v. King.

Look carefully at what Koschnick is saying: that Nordyke concluded the Second Amendment applies to the States because Heller said so. But that is false. Here is what Nordyke says (correctly) about Heller:

[W]e must decide whether the Second Amendment applies to the states through the Fourteenth [Amendment], a question that Heller explicitly left open.

"Explicitly left open," as in: "Heller did not answer that question." Yet Koschnick confidently informs us that Heller "prohibits State interference" with Second Amendment rights.

It most certainly does not.

The Nordyke court relied on Heller primarily for its recitation and portrayal of historical sources (without — significantly — devoting any effort at direct inspection of the sources and their respective contexts themselves), not Heller's legal holdings.

Indeed, the Ninth Circuit came to its legal conclusion that the Second Amendment applies to the States independently of Heller.*

Not only that, but the holding in Nordyke, which was decided in April by a three-judge panel, has been a legal nullity since the Ninth Circuit granted en banc review of the panel's decision on July 29, nearly a week before Koschnick's celebration of it appeared.

That is, Nordyke isn't the law even within the Ninth Circuit anymore, according to that very court:

The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

And it may well be overruled, as it's unprecedented for a court other than the Supreme Court to declare a provision of the Bill of Rights incorporated against the States. In that sense, Nordyke might fairly be characterized an "activist" decision.

Which brings us back to Sonia Sotomayor's opinion in Maloney v. Cuomo. In that case, Sotomayor declined to overstep the authority of the Supreme Court on the question of incorporation. And for this Koschnick labels her an "unapologetically liberal activist."

Except Maloney is an example of the very antithesis of "activism." Rather, it's a prime example of what the Constitution calls an "inferior court" deferring to the authority of a higher one. Thus, in deriding Maloney, Koschnick is effectively complaining that Sonia Sotomayor is not enough of an "activist" for his tastes.

Then there is the Seventh Circuit Court of Appeals, which faced the same question in June. Frank Easterbrook, acknowledged as one of the most conservative jurisprudes in the country, also adopted Sotomayor's position (along with two other conservative Republican judges). He even wrote, approvingly, "We agree with Maloney."

Koschnick, predictably, ignores the Seventh Circuit, even though one of the States within its jurisdiction, Wisconsin, is where he works.

Instead, he prefers to cite the case from California, Nordyke, despite its precedential value having been rendered void during the month prior to his declaring its enduring wisdom.

And he misrepresented the United States Supreme Court decision upon which he claims (erroneously) Nordyke relied.

Simply amazing.

Evidently it's appropriate and acceptable for a judge to pull that in an online right-wing echo chamber, but if a lawyer pulled something like it in a judge's courtroom, there'd be hell to pay for lack of candor.

* Nevertheless, Nordyke further concluded that the California gun regulation at issue was not in violation of the Second Amendment.

Perhaps that gang of crazy, wild-eyed, unapologetically liberal activists in San Francisco needed to incorporate the Second Amendment for the sole purpose of upholding another tyrannical State infringement on Randy Koschnick's constitutional rights.

I wouldn't put it past them!

Next: The ex-president and the Chief Justice