She’s correct.
“Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”
“But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.”
U.S. Supreme Court, Barron v. Mayor & City Council of Baltimore, 32 U.S. 7 Pet. 243 243 (1833)
A little something called the Fourteenth Amendment changed all that. Look at the date on that case.
Nearly every major right protected by the Bill of Rights has been held to be incorporated by the 14th. Just about the only ones that haven't have just not come up for consideration yet.
Sotomayor's opinion on the 2nd amendment completely ignores 150 years of 14th amendment jurisprudence, doesn't even raise the issue. That is intellectually dishonest, and just another reason why she shouldn't sit on ANY court.
Since the passage of the Fourteenth Amendment, it has been common practice for the federal courts to impose against the states the same restrictions that are imposed against the federal government by the Bill of Rights Amendments. In other words, the same citizens' rights that are protected by the Bill of Rights amendments from encroachment on the part of the federal government have been ruled to be protected from encroachment by the state governments as well. This is commonly called the doctrine of "incorporation": The Fourteenth Amendment, through its "due process" clause, keeps the states at bay and precludes them from infringing on the civil liberties guaranteed by the Bill of Rights Amendments.
You’re correct that the 2nd Amendment (and the Bill of Rights as a whole) did not apply against the states when they were originally adopted. But, let’s see, did anything happen since Barron v. Baltimore was decided in 1833? Oh, the Civil War, that’s right. And after the Civil War Congress adopted (wait for it) The Civil War Amendments, including the 14th Amendment, an amendment whose author, Congressman John Bingham (R-OH), specifically declared was meant to incorporate against the states the Bill of Rights (as well as the fundamental rights enunciated by Justice Bushrod Washington in Corfield v. Coryell). While the Supreme Court initially refused to incorporate the Bill of Rights against the states (in The Slaughterhouse Cases, 1873, which basically read the 14th Amendment’s Privileges or Immunities Clause out of the Constitution), it began the process of “selective incorporation” against the states of almost all of the clauses in the bill of Rights commencing in 1897 but not picking up speed until the 1960s. Judge Sotomayor’s citation of pre-1897 cases for the proposition that the 2nd Amendment should not apply against the states is risible, given that *of course* the Supreme Court held back then that the 2nd Amendment only applied against the federal government, since back then none of the Bill of Rights had been incorporated against the states.
“She’s correct,”
I can’t believe this is even an issue on this site. The Second Amendment was enacted as a prohibition against the federal government taking away the right of the people to keep and bare arms. It had nothing to do with the states, which created the federal government. Gun rights in the states are governed by state constitutions and state laws.
This is a very basic conservative position. It is also sometimes called “Fedralism.”