Over at the AHSA Facebook site, Ray Schoenke says:
The truth is the lower courts of appeals are supposed to follow precedent. That is what Sotomayor did. When she’s a supreme court justice, she will follow the precedent set by heller, and hopefully incorporate the right as fundamental to ALL STATES.
Except you’re ignoring evidence that she doesn’t believe in incorporation at all.Â Understand Ray, that means something.Â Are you really willing to stake the reputation of your organization (not that is has much of one) on Sotomayor ruling in favor of incorporation when the issue comes before the Court?Â That seems like a lousy bet to me.
But on the issue at hand, he’s correct.Â Sotomayor was bound by precedent to rule the way she did in Maloney.Â In Nordyke, the 9th Circuit case, the Court of Appeals had the option of proceeding forward with analysis of the Second Amendment under the due process clause because that path had not been closed by prior circuit precedent.Â Now, a circuit court can overturn its own precedent, but only in an En Banc hearing.
If it hadn’t been for Bach vs. Pataki, it might have been possible for the panel in Maloney to take a more detailed look at incorporation, and whether Presser vs. Illinois is still binding, but Bach vs. Pataki shuts the door on how much a panel can do.Â Because in Bach, the 2nd Circuit Court of Appeals did not address the issue of the Second Amendment being an individual right or not, and only focused on application to the states through the 14th amendment, Heller can’t really be seen as overuling Bach.
None of this means that Sotomayor believes the Second Amendment should be incorporated.Â We have some evidence that she does not believe this.Â It’s a question she will have to answer in her confirmation hearings.Â The fact that Ray Schoenke is already jumping on board the Sotomayor train, before we’ve had an adequate opportunity to flesh out her views in a hearing, tells me that AHSA is not a serious gun rights group, but is rather a shill for the Democratic party.Â Any real gun rights group would be supremely cautious about Sonya Sotomayor.