Sotomayor Ruled That States Do Not Have to Obey Second Amendment

[BCI Instructor]

Sotomayor Ruled That States Do Not Have to Obey Second Amendment
(CNSNews.com) - 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.

An interesting read ... especially if she makes it onto the Supreme Court and this ruling were to be challenged, which is likely in light of the fact that two Federal Circuit Court decisions are in conflict here ...

source: http://www.cnsnews.com/public/conten...x?RsrcID=48718

Sotomayor Ruled That States Do Not Have to Obey Second Amendment
Thursday, May 28, 2009
By Matt Cover




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 Nor**** 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 Nor**** 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.”

So much for the multiple statements as to her dedication to "the rule of law", especially in light of her supporting her argument via a case that the current sitting SCOTUS intrepreted differently less than 1 year ago ...

Whether she makes it onto SCOTUS or not, here's my prayer for incorporation of the Second Amendment ...

[blaster668]

If she makes it onto the High Court, and this case also makes it to the SCOTUS, wouldn't she have to abstain from voting on the issue? If that's the case, at least the incorporation issue would be more likely to go in our favor.

[adymond]

If she makes it onto the High Court, and this case also makes it to the SCOTUS, wouldn't she have to abstain from voting on the issue? If that's the case, at least the incorporation issue would be more likely to go in our favor.

Good Lord I think you may have just found the silver lining.

[mojo]

So she did say that the FED could not restrict our gun ownership, right? Does that mean that she would vote to overturn the NFA?

wishful thinking ... I know

[blaster668]

Good Lord I think you may have just found the silver lining.

Yes, although a rather small one

[mpi]

she won't recuse herself, mark my words!

[pyld]

she won't recuse herself, mark my words!

Well, or they (antis) will figure out a way to get the case from the 9th Circus or the one that will come from the 7th (the Chicago gun case) in front of SCOTUS to determine the applicability of the 14th Amendment to Heller.

In which case, I agree that she won't recuse herself, and then things get interesting.

It will (as it did with Heller) come down to Kennedy. Her vote will simply sub in for Souter's vote.

Or, let's say that they do bring up the 2nd Circuit case cited above and she does recuse herself--it still comes down to Kennedy, because if the vote goes 4-4, the Circuit court is upheld.

[wa3ra]

Well, let's look at her track record; the common estimate is that 60% of her rulings have been overturned by the higher court, and some 70% by the whole second circuit

However, only about half of her rulings were sent up the food chain. This means, roughly, that as many as 85% of her rulings, subject to additional scrutiny, have been overturned.

How is this woman even considered to be qualified for the SCOTUS?

[knight0334]

I think Presser, and the subsequent Sotomayor ruling is a crock of BS. This requiring US Constitutionally protected rights to be incorporated is a treasonous twist by people who really need to subject to the long drop.

The 2A specifically reserves the right to "the people", not to "the states and the people", thus protecting it from any infringement of any government. If the framers believed the right to keep and bear arms could be subject to state or local infringement, they would have included "the state" as they did in the 10th Amendment to the 2nd Amendment.

I swear to God, when I someday get elected President, or when I take over from revolution - the rope and lumber industries stocks will go through the roof just to hang all the traitors.

[RoyJackson]

This whole "incorporation" issue is utter bullshit. How the hell can a learned justice (not just Sotomayor) determine only some rights apply? The Constitution is not a "pick and choose" document...it applies to the states in it's entirety, or none of it applies (to the states).
Can someone explain that to me?

This is what happens when we let lawyers and politicians make decisions...