[Volokh] David Kopel: Sonia Sotomayor versus the Second Amendment

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Posted by David Kopel:
Sonia Sotomayor versus the Second Amendment
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243356423


   [1]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 [2]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. [3]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 [4]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, [5]United States v. Cruikshank.
   Presser did not discuss whether the Due Process clause of the 14th
   Amendment makes the Second Amendment enforceable against the states.
   Indeed, Presser could not have discussed the question, since the
   doctrine of incorporation via the Due Process clause was not invented
   until later. The Sotomayor per curiam opinion ignores Due Process
   incorporation, even though any serious analysis of whether the
   Fourteenth Amendment makes the Second Amendment enforceable against
   the states would have to address the issue. However, Maloney's [6]pro
   se brief in the case never raised selective Due Process incorporation,
   but only addressed the Fourteenth Amendment in the context of
   unenumerated fundamental rights (Meyer v. Nebraska, Griswold v.
   Connecticut, etc.).
   The Sotomayor per curiam opinion addressed the Fourteenth Amendment by
   quoting a previous Second Circuit decision: "Legislative acts that do
   not interfere with fundamental rights or single out suspect
   classifications carry with them a strong presumption of
   constitutionality and must be upheld if 'rationally related to a
   legitimate state interest.'" The opinion then went on to find a
   rational basis, since nunchaku had sometimes been used by criminals.
   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."
   The Maloney opinion is, on this issue, entirely consistent with Judge
   Sotomayor's opinion in a 2004 case: "the right to possess a gun is
   clearly not a fundamental right." United States v. Sanchez-Villar, 99
   Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges
   Sack, Sotomayor & Kaplan), judgement vacated, Sanchez-Villar v. United
   States, 544 U.S. 1029 (2005)(for further consideration in light of the
   2005 Booker decision on sentencing).
   Judge Sotomayor's record suggests hostility, rather than empathy, for
   the tens of millions of Americans who exercise their right to keep and
   bear arms.

References

   1. http://homepages.nyu.edu/~jmm257/000-decision.pdf
   2. http://www.stephenhalbrook.com/law_review_articles/presser.PDF
   3. http://armsandthelaw.com/archives/2005/05/bach_v_pataki_2.php
   4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1172255
   5. http://en.wikipedia.org/wiki/United_States_v._Cruikshank
   6. http://homepages.nyu.edu/~jmm257/BRIEF.pdf