by David Gans, Constitutional Accountability Center

During this morning’s questioning of Judge Sotomayor, Sen. Orrin Hatch pressed Judge Sotomayor about the opinion she joined in Maloney v. Cuomo, in which a panel of the Second Circuit unanimously concluded that the Second Amendment’s protection of a right to bear arms does not apply to the States. Maloney found this result compelled by 19th Century Supreme Court precedent holding that the Second Amendment only limited the actions of the federal government. Senator Hatch criticized this reasoning, suggesting that these older cases – particularly the 1886 ruling in Presser v. Illinois – only analyzed incorporation via the Privileges or Immunities Clause of the Fourteenth Amendment, and that Judge Sotomayor and her colleagues on the Second Circuit should have given more sustained consideration of the Due Process Clause and the doctrine of substantive due process.

While we are pleased to see Senator Hatch embrace the Constitution’s protection of substantive fundamental rights, Sen. Hatch ultimately gets the Fourteenth Amendment backward. It is the Privileges or Immunities Clause that explicitly protects the substantive fundamental rights of all Americans against state infringement. As we show in our brief in McDonald v. City of Chicago, filed in the Supreme Court last week, “the textually and historically accurate approach to determining whether the Fourteenth Amendment protects a right to bears arms[against state infringement] is to look to the Amendment’s Privileges or Immunities Clause.” In the 19th Century, the Supreme Court essentially read that Clause out of the Constitution, ruling in a long series of cases – many involving claims of gun rights – that the Fourteenth Amendment does not require States to respect the Bill of Rights. These rulings were hostile both to the Privileges or Immunities Clause as well as the Due Process Clause. Rather than accepting the Privileges or Immunities Clause as a dead letter, as Sen. Hatch seemingly did today, Americans should be pushing the Supreme Court to hear McDonald and finally get right the Fourteenth Amendment’s explicit textual protection of substantive fundamental rights.