The Radical Sotomayor
By She’s so radical that her opinion on the incorporation of the 2nd Amendment against state governments matches well-known Trotskyite Frank Easterbrook!
I would add a few caveats: 1)I agree with Volokh that the opinion should have done a better job at least of addressing the fact that the precedents dealing with the incorporation of the 2nd Amendment evaluated a different theory of incorporation than the Court is currently using (although this probably wouldn’t change the outcome), 2)This is more the Supreme Court’s fault than 7CA, but I would be especially leery of using Cruikshank, one of the lowest points in the Court’s history, as precedent for anything if avoiding it is remotely possible, and 3)You can’t really cite Richard Posner (who joined Easterbrook’s opinion) in an “even-the” comparison, given that he thinks Heller was wrong.
Still, the general point holds. The Second Amendment will almost certainly be incorporated against the states. But given the body of precedent in the area, it’s also completely appropriate for this to be done by the Supreme Court, not by the circuit courts. It’s not the business of lower appellate judges to overrule the precedents of higher courts. Sotomayor’s position is wholly unobjectionable and it would be erroneous to infer any great hostility to gun owners from it.