http://blog.zenmervolt.com/2009/06/02/legitimate-reasons-to-question-sotomayor/ Just another town along the road. Tue, 07 Jul 2009 20:30:57 +0000 hourly 1 http://wordpress.org/?v=3.2.1 http://blog.zenmervolt.com/2009/06/02/legitimate-reasons-to-question-sotomayor/comment-page-1/#comment-366 Strix nebulosa Fri, 05 Jun 2009 16:35:38 +0000 http://blog.zenmervolt.com/?p=391#comment-366 Reasons 2, 3, and 4 seem solid to me. I think Reason #1 is a closer call. The Court in Heller explicitly declined to decide the incorporation question, and there are some valid bases for an appellate court to decline to incorporate the Second Amendment against the states. The Seventh Circuit's recent decision on the issue (where three fairly conservative judges reached the same result as Sotomayor's Second Circuit panel) lays out the reasoning fairly well. Basically, it argued that there were some old Supreme Court cases declining to incorporate the Second Amendment; those cases have never been overruled; and even if it would be appropriate to overrule them, that is a task for the Supreme Court, not the circuit courts. This is true even though the old cases didn't even consider the doctrine of selective incorporation, which hadn't been invented yet (and which provides the strongest basis for incorporating the Second Amendment today). Personally, I think this decision was incorrect, because appellate courts should be able to ignore Supreme Court precedent if the doctrine on which the old cases rely has become obsolete. But I don't think the decision was completely unreasonable; it is a good thing when appellate courts recognize their place in the judicial system and not try too hard to foreshadow what they think the Supreme Court will do. Reasons 2, 3, and 4 seem solid to me. I think Reason #1 is a closer call. The Court in Heller explicitly declined to decide the incorporation question, and there are some valid bases for an appellate court to decline to incorporate the Second Amendment against the states. The Seventh Circuit’s recent decision on the issue (where three fairly conservative judges reached the same result as Sotomayor’s Second Circuit panel) lays out the reasoning fairly well. Basically, it argued that there were some old Supreme Court cases declining to incorporate the Second Amendment; those cases have never been overruled; and even if it would be appropriate to overrule them, that is a task for the Supreme Court, not the circuit courts. This is true even though the old cases didn’t even consider the doctrine of selective incorporation, which hadn’t been invented yet (and which provides the strongest basis for incorporating the Second Amendment today). Personally, I think this decision was incorrect, because appellate courts should be able to ignore Supreme Court precedent if the doctrine on which the old cases rely has become obsolete. But I don’t think the decision was completely unreasonable; it is a good thing when appellate courts recognize their place in the judicial system and not try too hard to foreshadow what they think the Supreme Court will do.

]]>