Judge Sotomayor doesn't think the Second Amendment applies to state or local governments, a curious premise that singles out one amendment for special restraint. *THIS* amendment doesn't apply to the states at all, but all the rest do. Can anyone imagine seriously arguing that freedom of speech or the notion of probable cause do not apply to individual states? Follow along in your imagination here, please. State of Nevada to Feds: We're not going to read Miranda Warnings to arrestees any more because that law only applies to you guys, not the states. See how that works?
As it turns out, she also has little regard for wine consumers either, and, in fact, voted to uphold New York's protectionist scheme preventing citizens of the Empire State from purchasing wine from out of state wineries.
Judge Sotomayor was part of a three-judge panel finding New York's discriminatory position toward out-of-state wine shippers to be constitutional, affirming the trial court ruling. Forced to reconcile the Commerce Clause with the 21st Amendment, the court's opinion picked a state protectionist scheme disguised as a liquor regulation as more deserving of judicial protection than Ms. Swedenburg's right to ship legal goods across state lines.
The panel opinion in Swedenberg was eventually appealed to the U.S. Supreme Court and reversed. The Court, in a 5-4 opinion, held that the 21st Amendment returned state power to the status quo that existed before Prohibition, and did not create a new state power to regulate liquor even if it disrupts interstate commerce. Before Prohibition, the states did not have the power to violate the Commerce Clause, and the 21st Amendment was not intended to grant them this power. Since this ruling, many more states have permitted direct shipping from wineries, with 35 states permitting at least some form of direct winery-to-consumer shipping.
There is no question that she'll be joining the Supers and that prospect doesn't bode well for firearms owners or wine afficianados. Not to mention that she seems to have a bit of an authoritarian streak, consistently finding for the government (92% of the time according to Chuck Schumer, D-NY) .
Tax Foundation analysis here.
Tip of the glass to Clint Bolick, who argued the wine case
TWC 🍷Photo Credit (unless otherwise noted): ©TWC, all rights reserved