Thursday, May 28, 2009

Sotomayor vs. the Second Amendment.

Dave Kopel has a post over at Volokh on Supreme Court nominee Sonia Sotomayor and her ruling in Maloney v. Cuomo:
Maloney v. Cuomo is a 2009 per curiam opinion of the Second Circuit, upholding New York State's complete ban on the possession of nunchaku. New York is the only state in the nation with such an extreme ban.

In the opinion by Judges Pooler, Sotomayor, and Katzmann, the per curiam judges first cite Presser v. Illinois (1886) for the proposition that the Second Amendment directly applies only to the federal government, and not to the states. They also cite a more recent Second Circuit case which relies on Presser, for the same proposition. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005).

In this regard, Judges Sotomayor et al. are plainly correct. However, they seriously misconstrue the Second Amendment itself, when they write: "The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms." To the contrary, as the Supreme Court explained at length in District of Columbia v. Heller, the Second Amendment does not "confer" any right; the right to arms pre-exists the Constitution. The Second Amendment protects but does not create that pre-existing right. As the Heller Court detailed, the fact that the right to arms is pre-constitutional is elaborated in the 1875 Supreme Court case, United States v. Cruikshank.

[UPDATE: Oren's post, above, accurately points out that Heller itself uses the word "confer", so even though the word is inconsistent with Heller's own explication of the right to arms as a pre-existing right, the Maloney opinion can't be faulted for using the same word.]
In other words, the Second Amendment is not "a fundamental right." The Sotomayor panel could have offered a legal explanation for why (in the panel's opinion) nunchaku are not "arms" within the meaning of the Second Amendment, and therefore a mere rational basis test for nunchaku bans is appropriate. But the Sotomayor court did not do so. To the contrary, the Sotomayor per curiam opinion treats any Second Amendment claim as not involving "a fundamental right." ...

More here. If you're really interested, there's lots more commentary on Judge Sotomayor over at Volokh.

At first blush it would appear that Judge Sotomayor will likely not be the least "empathetic" to the plight of gun owners, suffering under myriad and complex gun control laws, and in some places complete bans on exercising their rights. Given her apparent leftist ideology, and the fact that she is a product of the New York City anti-gun culture, this perhaps comes as little surprise.

So much for her saying that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Exactly what "richness" of experience does growing up, working and living in one of the most anti-gun hellholes in the country provide her when it comes to understanding the importance to our Republic of the right to keep and bear arms, a right exercised by an estimated eighty million Americans?

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