May 28th, 2009 12:18 PM
Sotomayor Ruled That States Do Not Have to Obey Second Amendment
CNSNews.com - Sotomayor Ruled That States Do Not Have to Obey Second Amendment
(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.”
NRA Life Member
May 28th, 2009 12:25 PM
Just another validation
Clearly Sotomayor is not a great or even fair choice for the SCOTUS, hopefully information like this will block her confirmation in the Senate.
"To believe that social reforms can eradicate evil altogether is to forget that evil is a protean creature, forever assuming a new shape when deprived of an old one." - SAT
Never argue with an idiot - they'll bring you down to their level then beat you with experience.
May 28th, 2009 01:21 PM
I wouldn't count on it. This just seems to be the end-around that the anti's have been looking for - a Supreme Court Justice that couldn't care less about what the Constitution says.
Originally Posted by bbqgrill
"Mind own business"
"Always cut cards"
May 28th, 2009 01:39 PM
Pretty much what I'd expect from a left wing radical nominated by Osama. Thank god she's just replacing another nut job. We should be fine as long as we have Alito, Roberts, Kennedy, Thomas and Scalia.
"First gallant South Carolina nobly made the stand."
Edge of Darkness
May 28th, 2009 01:58 PM
Well what did you expect from a blue-blood died in the wool liberal from the most liberal state in the union????
"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined". - Patrick Henry
May 28th, 2009 02:58 PM
Sotomayor is NOT QUALIFIED for the position she has been nominated for. She may be a federal judge, but she does NOT have the intellect nor the dispassion necessary to be a SCOTUS justice.
She is as bad of a nominee as when Bush tried to nominate Harriet Miers.
IMO, she will not be confirmed.
May 28th, 2009 03:00 PM
The irony here is that Sotomeyer is getting grief for following precident and NOT being a judicial activist.
The 9th circuit was willing to make a ruling that flies in the face of precident and judicial restraint (they are the most activist circuit in the country) and while I agree with their result, their ruling, IMHO, was blatent judicial activism.
While I do not know Sotomayor's personal views on it, her reasoning in that decision seems to mirror what can be heard in the 7th Circuit oral arguments - that only SCOTUS has the right to overturn its own previous decisions, even though it seems certain doing so is the right course of action.
May 28th, 2009 03:19 PM
Originally Posted by Rob P.
What are you talking about!!???
Clearly she is Hispanic, Cleary she is a woman. Clearly she feels sorry for the poor people who have been enslaved by the rich white man.
Obviously she is PERFECT for the job!!!
May 28th, 2009 03:26 PM
It was a nice bit of political strategy to nominate a Hispanic... the Repubs risk alienating (no pun intended) the Hispanic voters if they oppose her, regardless of her positions...
"Who is to say that I am not an instrument of karma? Indeed, who is to say that I am not the very hand of God himself, dispatched by the Almighty to smite the Philistines and hypocrites, to lay low the dishonest and corrupt, and to bust the jawbone of some jackass that so desperately deserves it?"
May 28th, 2009 03:53 PM
She is bad news, been over turned 3 out of 5 times. Must not have a grasp on the law, tries to make policy from the bench. No friend of the 2A, what did we expect from the anointed one?
While people are saying "Peace and safety," destruction will come on them suddenly, ... and they will not escape. 1Th 5:3
May 28th, 2009 04:40 PM
The states issue is one that covers a number of the items in the Bill of Rights. Most of these have been ruled by the high court as pertaining to the states over the years, not but not yet the Second Amendment (and a few others). Read the latest First Freedom NRA mag for more details. They are on it, of course.
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May 28th, 2009 05:00 PM
This makes my brain hurt.
"Criminals are a cowardly and superstitious lot."
May 28th, 2009 07:59 PM
Originally Posted by tflhndn
And is most certainy offensive to have the Court continually change its mind, reversing precedent, simply because of political bias without any new information.
And to answer the original title, Sotomayor 'ruled' no such thing. The states must respect the Second Amendment. They most forbid the Federal government from infringing on the individual right to keep and bear arms.
May 31st, 2009 08:50 AM
I'm wondering if she can sit in on a SCOTUS case if Maloney gets there. I thought she'd have to recuse herself since she already ruled on the circuit court level.
"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
Nunn v. State GA 1848
May 31st, 2009 02:48 PM
with a record of being overturned on 60% of her rulings that went to the SCOTUS I don't see how they can nominate her and keep a straight face
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