Posted on 05/28/2009 2:29:51 PM PDT by Zakeet
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.
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 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.
(Excerpt) Read more at foxnews.com ...
Four sitting justices also opined that there is no individual right, didn’t they? Merely disagreeing with five won’t disqualify her.
That's the most alarming thing I have seen regarding Sotomayor, Obama has been a radical gun banner from day one of his political career. I didn't expect a pro-2nd Amendment appointee, but I didn't think he would appoint a judge who even after Heller was decided voted for an interpretation that contradicts that decision.
But I shouldn't be surprised, because I'm sure that Obama will do whatever it takes to guarantee that the rapidly growing Hispanic vote bloc will be heavily Democrat in future elections by roughly the same margin as the black vote bloc is now. Appointing an unqualified Hispanic judge to the SCOTUS simply because she's a Hispanic is a long step in that direction.
>.Assembly isn’t a fundamental right.
Tell it to smokers.
Hehehehe.
That’s some loophole they’ve discovered there!
Notice how the 2nd Circuit restates the US Supreme Court case, Presser.
Our holding is compelled by the Supreme Court's opinion in Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886). In 1879, Herman Presser led four hundred armed members of a society called the Lehr und Wehr Verein through the streets of Chicago. Id. at 253-55, 6 S.Ct. 580. Illinois's Military Code required that any "parade with arms" be licensed by the Governor. Id. Presser lacked a license, and was charged and convicted under the Code. Id. Presser argued to the Supreme Court that Illinois had exercised a power "forbidden to the States by the Constitution of the United States." Id. at 260, 6 S.Ct. 580. He relied on both the Second and Fourteenth Amendments. See id. at 257, 260-61, 6 S.Ct. 580.The Supreme Court rejected Presser's argument. Justice Woods explained, "[A] conclusive answer to the contention that [the Second Amendment] prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States." Id. at 265, 6 S.Ct. 580. The Court quoted Chief Justice Waite's opinion in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). "[T]he right of the people to keep and bear arms s not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that is shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.'" Presser, 116 U.S. at 265, 6 S.Ct. 580 (quoting Cruikshank, 92 U.S. at 553).^23 The Court affirmed Presser's conviction. Id. at 269.
Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. The courts are uniform in this interpretation. See, e.g., Thomas, 730 F.2d at 42 (1st Cir.); Peoples Rights Org., 152 F.3d at 538-39 n. 18 (6th Cir.); Quilici, 695 F.2d at 269 (7th Cir.); Fresno Rifle & Pistol Club, 965 F.2d at 730-31 (9th Cir.). Just as Presser had no federal constitutional right "to keep and bear arms" with which to challenge Illinois's license requirement, Bach has none to assert against New York's regulatory scheme. Under Presser, the right to keep and bear arms is not a limitation on the power of States.
So, we have the 1st, 2nd, 6th, 7th, and until the 9th Circuit's Nordyke decision, them too, finding no inhibition against a state relating to the right of the people to keep and bear arms.
Now read Presser, and see how the educated black-robed Federal Circuit Court judges measure up in the field of simple honesty and integrity.
We think it clear that the sections [of municipal law] under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.'See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.
See the difference? I bet you do!
A brief discussion of Cruikshank is helpful, but not necessary to see the rank dishonesty employed by the 2nd Circuit. The portion of Cruikshank quoted by the Presser Court refers to "leaving the people to look for their protection against any violation by their fellow-citizens." That's because the issue in Cruickshank was NOT a law against keeping and bearing arms. The issue was an indictment including a count alleging a conspiracy by non-government actors, to deprive a citizen of the right to keep and bear arms. The US Supreme Court, in Cruickshank, said that a private actor can't violate the 2nd amendment; and that if one person's right to keep and bear arms is interfered with by a private actor, then the person must look to the local/state police power to get the interloper off his back.
I think that's fair enough, and as the issue in Cruickshank isn't a law that could be applied in any way to limit a citizen's right to keep and bear arms, the Court didn't need to probe the state's power in that regard.
Set Cruickshank aside, and take note of what the United States Supreme Court did in Presser, which has the context of a state/municipal law. In Presser, The United States Supreme Court upheld a regulation that required obtaining a permit in order to conduct a private, armed parade in a public place. The Presser Court justified upholding the law, saying, "The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."
I think that's fair enough too.
But look at what the 2nd Circuit says: "Under Presser, the right to keep and bear arms is not a limitation on the power of States." That's clearly erroneous. Under Presser, the right to parade with arms without a license is a power permitted to the states.
The United States Supreme Court in Presser finds the right of the people to keep and bear arms to be so powerful, that it cannot be taken away, even if there was no 2nd amendment! "[T]he states cannot, even laying the constitutional provision in question [2nd amendment] out of view, prohibit the people from keeping and bearing arms." Huzzah! Just so! The right of the people to keep and bear arms in inherent in being a free people. States can't take it away, and neither can the feds. So says the United States Supreme Court in Presser.
All of these judges should be impeached and removed for rank dishonesty. This isn't some esoteric interpretive point of law. It is simple. Junior-high educated readers with no legal training will easily comprehend what the United States Supreme Court said in Presser, and can compare it with what the 2nd Circuit claims Presser stands for.
If the present Congress won't impeach and remove the judges for their perfidy, then the present Congress needs to be removed from office, post haste.
Feel free to copy this, no attribution needed. I've linked to the cases so one can see that I've not made misleading omissions, like the 2nd Circuit did. I'm not going to repeat post it here or elsewhere. Send it to your Congressman. Ask why, if a court can be this disingenuous, you should have any respect AT ALL for their decisions. It's obvious that the Courts lack basic integrity. The rule of law if a joke.
One would hope but I'm not going to bet any money on it.
Send it to Krauthammer - he says the 2nd Circuit interpreted Presser correctly. He hasn’t read Presser.
Rights are not genetically passed from one generation to the next, not even fundamental rights.
Fact of the matter is, the people have stood by while their rights have been systematically trimmed here and there. That's doesn't mean that the gun-grabbing power-hungry entity doing the stripping is acting in harmony with the interests of a body of self-governing and free individuals.
It will be alright, not only has BO picked a poor candidate he has already insulted the rest of the entire supreme court by claiming that she is more qualified than any of them to serve. Now I don’t know for sure cause I ain’t a fat latina woman, but I think that Bo has also insulted alot of african american women and ther are a number of good AA judges out there. But he also insulted Asian women, White women etc. I hope the pubs take some time to point this out during the hearings.
She wants to keep the people from being armed — just like Hitler and Stalin.
If conservatives are not against the nominee by now they are not conservatives. Bet Hatch supports her. Like Arlen he is conservative until it really counts.
Add that to an extensive list of other very legitimate reasons she shouldn’t even sit on the bench for a local traffic court...
She is the poster child for activist judges. She blatantly is racist. She openly admitted (and just now is trying to retract it)that policy is made at the appeals court level...
Bush appointees for various courts got stonewalled by the Democrats for FAR less points of contention - including judges who were supported by Democrats in their home state and jurisdiction of the courts they were on when nominated to higher courts...
And here we have a flaming liberal judge and the press is trying to play nice with her - and there is little serious chance of stopping her confirmation... Remember, the RATs have 60 seats...
When the president of an anti-gun group goes out his way to defend a Supreme Court nominee - What does that tell you?
thanks, bfl
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