SotoMayor: "The Second Amendment applies only to limitations the federal government seeks to impose"

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Sotomayor Ruled That States Do Not Have to Obey Second Amendment
Thursday, May 28, 2009
By Matt Cover

(CNSNews.com) – Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.

In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.

The opinion said that the Second Amendment only restricted the federal government from infringing on an individual's right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois.

“It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,” said the opinion. Quoting Presser, the court said, “it is a limitation only upon the power of Congress and the national government, and not upon that of the state.”

The Maloney v. Cuomo case involved James Maloney, who had been arrested for possessing a pair of nunchuks. New York law prohibits the possession of nunchuks, even though they are often used in martial arts training and demonstrations.

The meaning of the Second Amendment has rarely been addressed by the Supreme Court. But in the 2008 case of Heller v. District of Columbia, the high court said that the right to keep and bear arms was a natural right of all Americans and that the Second Amendment guaranteed that right to everyone.

The Second Amendment, the Supreme Court ruled, “guarantee(s) the right of the individual to possess and carry weapons in case of confrontation. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

“There seems to us no doubt,” the Supreme Court said, “that the Second Amendment conferred an individual right to keep and bear arms.”

Sotomayor, however, said that even though the Heller decision held that the right to keep and bear arms was a natural right--and therefore could not be justly denied to a law-abiding citizen by any government, federal, state or local--the Second Circuit was still bound by the 1886 case, because Heller only dealt indirectly with the issue before her court.

“And to the extent that Heller might be read to question the continuing validity of this principle, we must follow Presser because where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which [it] directly controls.”

In its 2008 case, the Supreme Court’s took a different view of its own 1886 case, saying that Presser had no bearing on anything beyond a state’s ability to outlaw private militia groups.

Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations,” the court ruled. “This does not refute the individual-rights interpretation of the Amendment.”

The Second Amendment is the only part of the Bill of Rights that the Supreme Court has not specifically extended to the states through a process known as incorporation, which involves interpreting the Fourteenth Amendment to read that no state can deprive its citizens of federally guaranteed rights.

The Fourteenth Amendment reads, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

Sotomayor’s decision rejected the Fourteenth Amendment’s incorporation doctrine as far as Second Amendment was concerned, saying any legislation that could provide a “conceivable” reason would be upheld by her court.

“We will uphold legislation if we can identify some reasonably conceived state of facts that could provide a rational basis for the legislative action. Legislative acts that do not interfere with fundamental rights … carry with them a strong presumption of constitutionality,” the appeals court concluded. “The Fourteenth Amendment,” she wrote, “provides no relief.”

Sotomayor’s ruling ran to the left of even the reliably liberal San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which ruled in the April 2009 case Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

“We therefore conclude that the right to keep and bear arms is deeply rooted in this Nation’s history and tradition,” said the Ninth Circuit court of Appeals. “We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

Gun Week Senior Editor Dave Workman told CNSNews.com that the Nordyke and Maloney decisions are at odds and the Supreme Court, possibly with a Justice Sotomayor, may soon sort them out.

“Whenever you have a conflict like this, you’re likely to have it end up before the Supreme Court so they can decide the issue. If the Second Amendment is incorporated into the states, it’s going to jeopardize thousands of local gun laws, and the people who supported those gun laws are just freaked about that.”
 

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Sotomayor May Have Some Unlikely Allies on Gun Issue

<cite class="vcard"> James Rowley James Rowley </cite> <abbr title="2009-06-02T12:50:14-0700" class="recenttimedate">37 mins ago</abbr>
<!-- end .byline --> June 2 (Bloomberg) -- Judge Sonia Sotomayor’s best defense against firearms owners mobilizing to oppose her U.S. Supreme Court nomination may come from an unlikely source: two top conservatives on the federal bench.
Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.
Today, Richard Posner and Frank Easterbrook, appointed to the 7th U.S. Circuit Court of Appeals in Chicago by President Ronald Reagan, took the same hands-off as Sotomayor. They joined a 3-0 ruling that upheld weapons ordinances in Chicago and suburban Oak Park, Illinois, and rejected challenges by gun rights advocates.
“The Supreme Court has rebuffed requests to apply the Second Amendment to the states,” Easterbrook wrote for the three-judge court.
In its ruling last year on the Washington handgun ban, the Supreme Court said the Second Amendment protects an individual’s right to bear arms against regulation by the District of Columbia and the federal government. Previously, the high court had recognized only a collective right to bear arms applied by state militias.
“It’s nice to have two leading conservative judges” for support, said Washington lawyer Patricia Millett, a Supreme Court specialist. It “will really take the steam” out of accusations Sotomayor, 54, is hostile to gun rights, she said.
Private Meetings
Sotomayor began meeting individually in private today with senators in preparation for hearings on her confirmation. No date has been set for the hearings.
Posner and Easterbrook are leaders of the so-called law and economics school of thought that espouses free-market principles to help resolve legal questions.
They signaled in court arguments last month that their ruling today would say it is up to the Supreme Court -- not appellate judges -- to extend the Constitution’s Second Amendment protection for gun owners to the states.
Sotomayor, a judge on the 2nd U.S. Circuit Court of Appeals in New York, likely will face questions on gun rights when the Senate Judiciary Committee holds hearings on her high court nomination by President Barack Obama to replace retiring Justice David Souter.
An Important Footnote
The Supreme Court said in a footnote to its 5-4 ruling in the Washington case that it didn’t decide whether the Second Amendment binds the states as well as the federal government and the District of Columbia.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor. The 9th Circuit struck down a local ordinance that banned guns from public property.
Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”
“Judge Sotomayor’s position” and those of Posner and Easterbrook, “is far more in the mainstream,” Tushnet said in an e-mail.
‘Promising Ammunition’
Republican strategist John Ullyot said in an e-mail, “Gun rights is emerging as the most promising ammunition” for Republicans to attack Sotomayor’s nomination. He declined to say how much political traction the issue will provide.
Sotomayor’s position “speaks to her judicial philosophy,” said Erich Pratt, spokesman for the 300,000-member Gun Owners of America, based in Springfield, Virginia. “We plan to be very involved.” The group on its Web site urged members to contact senators.
The 2nd Circuit panel that included Sotomayor ruled in January in a case involving numchucks, or martial-arts sticks. A New York law bans them as dangerous weapons.
In a brief, unsigned opinion, the panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.
The Citizens Committee for the Right to Keep and Bear Arms said on its Web site that Obama nominated Sotomayor to “stack courts” with gun-control advocates.
‘Serious Concerns’
So far, the National Rifle Association, the largest gun- rights organization in the U.S., hasn’t taken a position.
“We have questions and we have serious concerns,” said NRA spokesman Andrew Arulanandam.
It was the Fairfax, Virginia-based group’s challenge to gun-control laws in Chicago and Oak Park that prompted today’s ruling by the appeals court in Chicago that includes Easterbrook and Posner. When the case was argued, the two judges peppered NRA lawyers with questions about why the case shouldn’t be thrown out.
“I don’t see how you can get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions,” Posner said at the May 26 argument.
In the 7th Circuit’s opinion, Easterbrook wrote that, if an appeals court ignores a Supreme Court decision “by identifying and accepting one or another contention not expressly addressed by the justices,” high court rulings would “bind only justices too dim-witted to come up with a novel argument.”
Today’s ruling likely will be cited by Sotomayor and her defenders to blunt criticism she showed hostility to gun rights.
It shows Sotomayor “did what the good judge should do: respect the authority and hierarchy of the federal court system,” said Neil Seigel, a former Democratic staff counsel to the Senate Judiciary Committee who teaches at Duke University law school.
Calling Sotomayor a judicial activist based on the weapons case takes that label and “stands it on its ear,” Millett said.
To contact the reporter on this story: James Rowley at jarowley@bloomberg.net
 

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Zomg obama is going to take our guns!!!!

Everybody panic!!!
 

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She be ethnocentric in her views, don't like white people much and don't want the people to have guns. She was clearly an affirmative action selection cause equal credential white males were not to be considered in my opinion. Another reason I dislike Liberals.

:cripwalk::cripwalk::cripwalk::ohno::ohno::ohno::ohno::ohno:
 

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Like I've stated before, they don't have to take your guns or even ban them.

Guns make great paper weights without ammo. Restrict or prohibit the sale of ammo and problem solved.
 

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Like I've stated before, they don't have to take your guns or even ban them.

Guns make great paper weights without ammo. Restrict or prohibit the sale of ammo and problem solved.

What would be the best way for the Democrats to lose the next 20 elections? To start fucking with the 2nd Amendment. It's political suicide. You think they don't know that?
 

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