Question #6: Second Amendment Rights
In Maloney v. Cuomo, you joined a three-judge panel concluding that the Second Amendment right to bear arms does not apply to the states through the Fourteenth Amendment. You also argued that the right to bear arms is not a "fundamental right."
In your incredibly short opinion, your panel cites Presser v. Illinois as the basis for its claim that "it is settled law ... that the Second Amendment applies only to limitations the federal government seeks to impose on [the right to bear arms]." Your panel neglects to mention, however, that Presser was decided before the courts began incorporating the Bill of Rights through the due process clause of the Fourteenth Amendment, which the Supreme Court in District of Columbia v. Heller describes as "the sort of Fourteenth Amendment inquiry required by our later cases."
More disturbingly, your panel summarily stated in a scant 11-word conclusion that statutes restricting possession of weapons do not implicate a fundamental right--something that no court has done since the Supreme Court affirmed an individual Second Amendment right in Heller.
Why did you fail to even consider the sort of inquiry that the Supreme Court said is required by the Fourteenth Amendment in your decision stripping Second Amendment protection from citizens in the Second Circuit? Do you believe that statutes restricting possession of weapons do not even implicate fundamental rights? How does that view comport with the text of the Second Amendment?
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