"Guns kill people. They fly around harming children. That's why we need to ban them"
Posted on 05/28/2009 6:19:54 PM PDT by 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.”
Egads! She infringed upon my 2nd amendment rights by just existing.
I should have bought stock in firearm manufacturers before Obama was elected. (sigh. hindsight...)
I thought the 10th and 14th amendments did that.
I vote that the 16th ammendment doesn't apply in my state! How would THAT be Lord Zer0? Hey! I like judge SoSo's judicial philosophy.
Unless Republicans keep shedding light on these facts, Obama will be well on his way to packing the supreme court with marxists. But I don’t think an informed public would support this bitch if they knew what here agenda was.
The US constitution is a limit on federal power. The first draft of the first amendment was rejected because it was thought to be in conflict with the then established state churches, which the founders did not want to interfere with. Since Lincoln expanded the power of the central/federal government and displaced states rights, the equal protections clause has been abused, much like the commerce clause, to expand the reach of the federal government.
It is doubtful that Sohomeyer is a federalist. She is most likely trying to be clever and signal that when it comes to limiting the second amendment, it may be advantageous for the federal government to respect states rights.
"Guns kill people. They fly around harming children. That's why we need to ban them"
Nonsense. The division line is between 14A administrative status and the natural person of the pre-14A Constitution. And while "incorporation" is necessary for the former, the States are uniformly restricted by the pre-14A application of the Ninth & Tenth Amendments.
If they don’t have to obey the 2nd htey don’t have to obey ANY of them.
Let’s see them take the vote away from minorities and women. “We don’t have to obey those amendments either.” Now THAT would be fun to watch.
Obama has hung with Communists--Ayers, Frank Marshall Davis, and others; however, his form of govt. is more Fascist than Socialist or Communist at this point--Fascism allows for some private ownership but dictates policy--Socialism, Communism, and Fascism are all statist and support dictators.. He likens himself to FDR, Lincoln and others, but in truth he is more like Adolph than anyone we ever had.
Hitler was a community organizer who started a community based orgn.(brown shirts) who began by turning out the vote for him when he took advantage of the post WWI chaos. They later continued by knocking on doors, breaking windows, painting anti Jew slogans on buildings and signs, and generally frightening the populace. Later, they helped cart people away.
Sotomayor is not a towering brain, per many who have worked with her. So Bush 1 apointed her, but did not pick her. At the time, NY had a Repub and a Dem senator and the Dem Senator proposed her name. She had a good degree and was a minority woman. Her years on the bench have not been distinguished, and over half the opinions she wrote herself have been overturned by a higher court.
Repubs need to make the fight ideological and philosophical, not personal, although her snide statements about white men tells me she is racist.
Obama voted against John Roberts, who is a towering intellect. The Dems just could not get him to answer the eway they wanted.
vaudine
Obama & Co. thought they had the GOP in a corner on this nomination. Combine this with her racist comments and the Ricci v. Destefano decision. This might blow up in their faces. 27 Senate rats voted for concealed carry rights in national parks.
Forget the stock. Just get the hardware.
If state compliance with the 2nd Amendment is optional...then so is compliance with the 13th...
Stupid is as stupid does. I read that back in the 1800’s it was settled that the 10 amdts. DO apply to the states. Get yer head outa yer axx, lady.
"It is settled law, however, that the Second Amendment applies ... to limitations the federal government seeks to impose on this right. It is a limitation ... upon the power of Congress and the national government ... ."
Push this point hard enough, and her supporters should abandon her in droves.
Check! :-)
This is what the GOP is going to get every single time it panders to minorities. The Bush family set the standard for pandering to minorities and it has been disastrous for European-Americans. Pandering gives the gloss of respectablity to such racist anti-European groups as LaRacist/LaRaza. Pandering rewards incompetent ingrates like Colin Powell who are then compelled to prove their “street-cred” by trashing the very people who promoted them. The clueless elitists who run the GOP have no idea how pathetic their efforts appear to minorities. Instead of groveling for a few lousy votes, the GOP would have been better off keeping their integrity and being a party of principle that people could respect. Instead, the GOP chose to be pathetic groveling whiners.
The others pinged: check out the boldfaced paragraph in the original post. I posted this article from CNS even though most of the information had already appeared, because it pointed out the problem, and made me aware that Sotomayor's January decision might be the exact reason the Zero appointed her: He must want her on the Court precisely in case this comes up.
Her racism and sexism are getting all the attention, but this seems to me to be more important.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.