More on Sotomayor

[huskergun]

David Kopel, May 26, 2009 at 12:47pm] Trackbacks
Sonia Sotomayor versus the Second Amendment:
Maloney v. Cuomo is a 2009 per curiam opinion of the Second Circuit, upholding New York State's complete ban on the possession of nunchaku. New York is the only state in the nation with such an extreme ban.

In the opinion by Judges Pooler, Sotomayor, and Katzmann, the per curiam judges first cite Presser v. Illinois (1886) for the proposition that the Second Amendment directly applies only to the federal government, and not to the states. They also cite a more recent Second Circuit case which relies on Presser, for the same proposition. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005).

In this regard, Judges Sotomayor et al. are plainly correct. However, they seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right. As the Heller Court detailed, the fact that the right to arms is pre-constitutional is elaborated in the 1875 Supreme Court case, United States v. Cruikshank.

[UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer", so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.]

Presser did not discuss whether the Due Process clause of the 14th Amendment makes the Second Amendment enforceable against the states. Indeed, Presser could not have discussed the question, since the doctrine of incorporation via the Due Process clause was not invented until later. The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue. However, Maloney's pro se brief in the case never raised selective Due Process incorporation, but only addressed the Fourteenth Amendment in the context of unenumerated fundamental rights (Meyer v. Nebraska, Griswold v. Connecticut, etc.).

The Sotomayor per curiam opinion addressed the Fourteenth Amendment by quoting a previous Second Circuit decision: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The opinion then went on to find a rational basis, since nunchaku had sometimes been used by criminals.

In other words, the Second Amendment is not "a fundamental right." The Sotomayor panel could have offered a legal explanation for why (in the panel's opinion) nunchaku are not "arms" within the meaning of the Second Amendment, and therefore a mere rational basis test for nunchaku bans is appropriate. But the Sotomayor court did not do so. To the contrary, the Sotomayor per curiam opinion treats any Second Amendment claim as not involving "a fundamental right."

The Maloney opinion is, on this issue, entirely consistent with Judge Sotomayor's opinion in a 2004 case: "the right to possess a gun is clearly not a fundamental right." United States v. Sanchez-Villar, 99 Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges Sack, Sotomayor & Kaplan), judgement vacated, Sanchez-Villar v. United States, 544 U.S. 1029 (2005)(for further consideration in light of the 2005 Booker decision on sentencing).

Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.

[huskergun]

[DJPeter]

Here an article on Sotomayor that clarifies her position on the 2nd Amendment and State Rights.



http://www.foxnews.com/politics/2009/05/28/sotomayors-gun-control-positions-prompt-conservative-backlash/



Sotomayor's Gun Control Positions Could Prompt Conservative Backlash
Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states. 
FOXNews.com
Thursday, May 28, 2009
 
Judge Sonia Sotomayor smiles as President Obama announces her as his pick for the Supreme Court Tuesday in Washington. (AP Photo)
Judge Sonia Sotomayor could walk into a firestorm on Capitol Hill over her stance on gun rights, with conservatives beginning to question some controversial positions she's taken over the past several years on the Second Amendment.
Earlier this year, President Obama's Supreme Court nominee joined an opinion with the 2nd Circuit Court of Appeals ruling that Second Amendment rights do not apply to the states.
A 2004 opinion she joined also cited as precedent that "the right to possess a gun is clearly not a fundamental right."
Ken Blackwell, a senior fellow with the Family Research Council, called Obama's nomination a "declaration of war against America's gun owners."
Such a line of attack could prove more effective than efforts to define Sotomayor as pro-abortion, efforts that essentially grasp at straws. Sotomayor's record on that hot-button issue reveals instances in which she has ruled against an abortion rights group and in favor of anti-abortion protesters, making her hard to pigeonhole.
But Sotomayor's position on gun control is far more crystallized.
Blackwell, who also ran unsuccessfully to head the Republican National Committee, told FOX News her position is "very, very disturbing."
"That puts our Second Amendment freedoms at risk," he said. "What she's basically saying is that your hometown can decide to suppress your Second Amendment freedoms."
The chief concern is her position in the 2009 Maloney v. Cuomo case, in which the court examined a claim by a New York attorney that a New York law that prohibited possession of nunchucks violated his Second Amendment rights. The Appeals Court affirmed the lower court's decision that the Second Amendment does not apply to the states.
The ruling explained that it was "settled law" that the Second Amendment applies only to limitations the federal government might seek on individual gun rights.
Despite last year's landmark Supreme Court ruling in the District of Columbia v. Heller, in which the court ruled that the Second Amendment protects an individual right to bear arms, the Maloney ruling determined that case "does not invalidate this longstanding principle" that states are not covered by the Second Amendment. (Another appeals court since the Heller case reached the opposite conclusion.)
Justice David Souter, whom Sotomayor would replace, dissented from the majority decision in D.C. v. Heller, so Sotomayor wouldn't necessarily tip the balance on such issues. But she's joining a split body -- the D.C. case was a 5-4 decision -- and with the Maloney case likely to be appealed to the Supreme Court her presence could be threatening to gun rights groups.
"We have concerns and we have questions," Andrew Arulanandam, public affairs director for the National Rifle Association, told FOXNews.com. He said the NRA would work with members of Congress to have those concerns addressed in the coming months, and that the NRA has researchers looking more closely at Sotomayor's gun rights record.
Ken Klukowski, a fellow and legal analyst with the American Civil Rights Union, predicted this issue would heat up as the confirmation process moves forward.
"If this nomination were not to succeed, it would likely be because of the Second Amendment issue," he said.
Klukowski questioned the brevity of the Maloney decision, which spanned only a few pages, more than the actual conclusion. He said it glossed over decades of relevant legal precedent.
"The idea that you would be the first circuit court to take up this profound, constitutional question after the Supreme Court's landmark ruling and only give it one paragraph is stunning," he said.
But Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said the issue of Sotomayor's gun rights position is being "overblown" since the court was merely following precedent. He agreed that the Heller decision did not mean Second Amendment rights apply to states.
He said any controversy over the issue would be a "red herring."
As interest groups launch a heated campaign to define Sotomayor and draw the battle lines ahead of her confirmation process, the White House has voiced unequivocal confidence in her judgment.
White House Press Secretary Robert Gibbs said Thursday that Obama was "very comfortable with her interpretation of the Constitution being similar to that of his."
FOXNews.com's Judson Berger and FOX News' Shannon Bream contributed to this report.

[OnTheFly]

What is interesting, to me anyway, is that Newt Gingrich and Rush Limbaugh have withdrawn a little on their aggressive stance against Sotomayor.  Not sure why this is.  Myabe they think she isn't as left as they originally implied, or possibly they believe their strong words may be hurting the Republican party image.

Fly

[Dan W]

There is a rumor that she may actually be Pro-Life, and it seems to have made some back off a little, but in Rush's case, He is probably thinking     "If I support her , then the Libs will have a hissy fit"       He loves to tweak them that way.

Many also think she will make it in anyway, But I agree with Limbaugh that opposing this nomination is more about defining Obama, than about stopping his nomination

[wrenrj1]

According to Fox News (6-4-09) she's worth over a million and owes over $400K (mortgage, credit cards etc.) and living paycheck to paycheck.  Heck, she's one of us (well not me, but in general...)...