Live stream from Sotomayor hearings

Senator Hatch, in his questioning of Sotomayer on her decision after Heller on incorporation of the fundamental right to arms against the states under the 14th Amendment, raised a very serious point that he did not explain very well (IMHO).

Judge Sotomayer decided that the 2nd amendment did not apply to the states under the doctrine of the 14th Amendment allowing the states to regulate the right to non existence if they had a logical case to do so.

Hatch tried to note, not very clearly, that there is a body of law and legal thinking that has developed over the last 110 or so years concerning incorporating a right against the states as a result of the 14th Amendment. Sotomayer, in her decision, did not use this body of law, as its use would have required her to find for inclusion of the right, but instead, went back far further to a period when the precedent did not reference the 14th and used other law in discussing the Bill of Rights to NOT incorporate any of those rights against the states. Using this precedence, she was able to rule against inclusion.

Think about that, if she wanted to come to one conclusion, she uses one batch of case law. If she wants another decision, she uses an older and largely changed bit of precedence ignoring case law from the last century.

She had a conclusion in mind and used law no longer relevant to make it.

That IS Judicial Activism.

Using this legal standard, she could have made a case that no right in the Bill of Rights appled to the states as her referenceing Presser relied on this line:

“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms ‘is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the ‘powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,’ ‘not surrendered or restrained’ by the constitution of the United States.”

JIMV on July 14, 2009 at 12:29 PM