Sotomayor Ruled That States Do Not Have to Obey Second Amendment

CNS News ^ | May 28, 2009 | Matt Cover

[firebrand]

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.”

[South40]

Sotomayor Ruled That States Do Not Have to Obey Second Amendment

And Zer0 agrees.

[firebrand]

ping

[Cousin Eddie]

What’s good for the goose...

By that line of reasoning, then states are perfectly free to restrict abortion, since the Constitution apparently grants a right to privacy, but that only prohibits the federal government from infringing on that right.

Try that one on for size, Sonya!

[dennisw]

Sotomayor is a misfit kook and misfit 0bama would love to inflict her upon America. Sotomayor is a weirdo and gay

[pnh102]

Racist female dog.

[garyhope]

Well,...there go ammo and gun prices again.

Thanks Sonia.

Is she really gay or just ugly?

[Uri’el-2012]

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

The second amendment does not confer a right;

the right to keep and bear arms comes from G-d
and it is affirmed in the second amendment to the Constitution.

[nathanbedford]

The language of the First Amendment explicitly prohibits Congress from interfering with certain liberties:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The language of The second amendment on its face is not limited to a restriction of Congress but states a general prohibition against an assumed "right of the people":

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It is certainly curious how pettifoggery can twist us so far way from the plain meaning of the Constitution until the courts have managed utterly to reverse the language. The First Amendment, a prohibition against Congress, obviously would require the 14th amendment to extend the prohibition to the states. But the second amendment is a general prohibition, not limited to Congress, and therefore less in need of a fourteenth amendment to apply it to the states. Why were not the founders intelligent enough to understand that they were not limiting the restriction of the Second Amendment to Congress? Against whom could the founders possibly have expected the prohibition to apply if the class were not limited to Congress? Obviously in this context of the Constitution the only other plausible candidate would be the states. To except the states from a list of candidates is implausible.

So screwing around with the language for 200 years gives a liberal activist judge like Sonia Sotomayor the running room she needs to massage the Constitution until she gets the predetermined result she wants.

[yefragetuwrabrumuy]

Be very careful in jumping in on this one. Using Uncle Remus’ ideas, “This one *is* a tar baby *in* a brier patch”.

Even on the surface it is a morass, a combination of rights and laws that involved everything from Reconstruction and the Ku Klux Klan, to the Black Panthers, vigilante organizations of several kinds, half a dozen constitutional amendments. The anarchists after WWI, civil rights in WWII, foreign nationals, non-gun weaponry, explosives and automatic weapons laws, etc., etc.

This is a nightmare. About the only issue that would be more difficult to legally hash out would be Indian law—and nobody is brave enough to even try to do that.

Literally, this could end up being so complicated, that the SCOTUS could not resolve it in six months. To do it right would take about two years, require extensive opinions by every justice, and rationalize over 230 years of American law.

[longun45]

OH! Now the bill of rights does not apply to the states? The 5th amendment does not apply to the states? The first amendment doesn’t apply to the states?

Is this a new policy? Do the federal laws apply to the states? If not I love it, then we can throw out the federal government as trespassers.

[hunter112]

I was waiting for a reason to be able to pressure Rat Senators from either red or purple states, and this might just be it.

[mamelukesabre]

Do we agree that the US constitution is a document that places limits on federal government, not on US citizens’ rights?

If so, then maybe this broad actually has a point. Does the US constitution place limits on state governments? Or just on federal government?

My head is spinning.

If the broad is right, then who has the authority to take a person’s guns away or enforce current gun restrictions? Certainly NOT the ATF...correct? It would seem to me that the ATF is a criminal organization. If an individual state decides to ban “militias”, then all the citizens of that state would be screwed, would they not?

How can she possibly be right?

If she is right, then the federal government has been consistently in violation of the constitution for well over a century on many many different topics.

[Cboldt]

"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."

Selective quoting of Presser. Very carefully selective quoting. Mash here for the rest of the Presser case.

The selective quote that I take from the Presser case? " ... the states cannot, even laying the constitutional provision in question [2nd amendment] out of view, prohibit the people from keeping and bearing arms ..."

[Right Wing Assault]

Hmm. What other amendments don’t we have to follow?

[Right Wing Assault]

Oops. I see they covered that in the article.

[gorilla_warrior]

The US Supreme Court is now the biggest danger to the Constitution, and the court should really be disbanded. I hope that when the new nation of Free America is founded, they will not include a Supreme Court at either the federal or state level.

[Cboldt]

-- If she is right, then the federal government has been consistently in violation of the constitution for well over a century on many many different topics. --

Yup. Not that she's right on her read of Presser, she's not. When it comes to the 2nd amendment, every government, state, fed, local, is working against the right of the people to keep and bear arms. They are in cahoots.

The 1935 Miller case is another one that has been misconstrued -- most recently by 9 of 9 justices of the United States Supreme Court in the Heller case. Yep, even Scalia, Roberts and Thomas are in on the unconstitutional gun grabbing game.

[Lorianne]

The best line of attack on Sotomayer is the 2nd Amendment. From what I have read, she basically thinks guns are a Fed only issue thus the states are free to impose whatever regulations they want including outright bans.

Like most liberals (and some conservatives) she advocates the silly idea that states rights apply to some Amendments, but other amendments should be federally imposed.

The gotcha for Sotomayor is that after Heller we all have rights to own guns ...in D.C.

Heller has not been incorporated. An incorporation lawsuit is in the works and heading to the SCOTUS. Republicans can pressure red state Dems on this issue because she supports local and state bans. Interesting enough Montana is challenging Fed gun laws using the same point but attacking the commerce clause. If the states can make their own gun laws then Fed regulations are moot ... IL can ban all guns and MT can sell machine guns with no restrictions. (Which would irk gun-ban Libs to no end).

So she puts Dems who support her in a no-win situation on this issue.

Republicans should make the most of it. Sotomayer will probably get confirmed, but not without a heap of Dems getting hammered for it in the next election for supporting a gun-banning jurist or a machine gun-allowing jurist (depending how you look at it). Chances are the incorporation case will come up and be decided before the next election for many of the new senators.

[bill1952]

Then it is time to arrest the staff of the NYT and the WaPo - for starters - for treason, slander, and lying to perpetrate a fraud against the country.

Lets work on drafting such a law via referendum in Florida and put it on the ballot.

After all the protections of the U.S. Constitution cannot be assumed to extend to the press so as to negate State law, correct?