Senator Hatch, in his questioning of Sotomayer on her decision after Heller on incorporation of the fundamental right to arms against the states under the 14th Amendment, raised a very serious point that he did not explain very well (IMHO).
Judge Sotomayer decided that the 2nd amendment did not apply to the states under the doctrine of the 14th Amendment allowing the states to regulate the right to non existence if they had a logical case to do so.
Hatch tried to note, not very clearly, that there is a body of law and legal thinking that has developed over the last 110 or so years concerning incorporating a right against the states as a result of the 14th Amendment. Sotomayer, in her decision, did not use this body of law, as its use would have required her to find for inclusion of the right, but instead, went back far further to a period when the precedent did not reference the 14th and used other law in discussing the Bill of Rights to NOT incorporate any of those rights against the states. Using this precedence, she was able to rule against inclusion.
Think about that, if she wanted to come to one conclusion, she uses one batch of case law. If she wants another decision, she uses an older and largely changed bit of precedence ignoring case law from the last century.
She had a conclusion in mind and used law no longer relevant to make it.
That IS Judicial Activism.
Using this criteria, she could make a case that no rights protected in the Bill of Rights applies to the states as she used Presser to make her point