As I detailed in a previous post, Judge Sotomayor co-authored two opinions which denied that the possession of a firearm is a fundamental right. The first case can defended as based on what was, at the time, still-valid dicta. The second case is indefensible.

The first case was United States v. Sanchez-Villar (2004). For the proposition that that there is no fundamental right to possess a gun, Judge Sotomayor and the other two judges quoted United States v. Toner, 728 F.2d 115 (2d Cir., 1984). Let's look at it.

Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.

On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court's analysis of the issue is as follows:

Murphy was convicted under Count Four of violating 18 U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for an illegal alien to receive, possess or transport "in commerce or affecting commerce ... any firearm." Because receiving, possessing or transporting firearms in interstate commerce is not in and of itself a crime, United States v. Bass, 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is not in and of itself a crime, Murphy argues that his Fifth Amendment right to equal protection of the law is violated by section 1202(a)(5). He concedes, however, that the statute passes constitutional muster if it rests on a rational basis, a concession which is clearly correct since the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon), and since illegal aliens are not a suspect class.

The Toner court then provided reasons why there is a rational basis for treating illegal aliens differently, in regards to arms possession.

It is questionable whether Toner's language about fundamental rights created a controlling precedent; the issue was not even contested before the court, as appellant Murphy had conceded that no fundamental right was involved. However, Toner provided, at the least, some usable dicta, which Judge Sotomayor and the other two judges in her panel quoted in their Summary Order in Sanchez-Villar in 2004.

In 2008, the Supreme Court authoritatively ruled that the Second Circuit's 1984 reading of Miller was entirely wrong. In District of Columbia v. Heller, the majority opinion chastised lower court court judges who had "overread Miller" and criticized Justice Stevens for wanting to defer to "their erroneous reliance" on interpretations similar to the one proffered by the Second Circuit in Toner. The Heller decision stated that "Miller did not hold that and cannot possibly be read to have held" that only arms possession by the militia is protected by the Second Amendment. Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: "it was that the type of weapon at issue was not eligible for Second Amendment protection." Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Post-Heller, Toner's assertion that there is no fundamental right to possess a firearm was invalid. The assertion in Toner was based on solely on an interpretation of Miller, and the Supreme Court has unambiguously stated that the interpretation was wrong.

In 2009, Judge Sotomayor was part of a three-judge panel which decided a challenge to New York state's prohibition of nunchaku, Maloney v. Cuomo. So when Maloney asserted that he had a fundamental right to arms, there was no controlling circuit precedent. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the right to arms issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney's particular arm (nunchaku) is not.

Instead, the panel simply stated a general rule about the Fourteenth Amendment: "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 quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government's severe restrictions on cigar smoking. (Beatie itself was quoting the Supreme Court's Cleburne v. Cleburne Living Center.)

The Maloney court's approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two-part test: 1. Does the legislative act interfere with a fundamental right or single out a suspect classification? 2. If not, is there a rational basis for the law?

The cigar aficionado Beatie had conceded point 1, but had argued that there was no rational basis for the anti-cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Maloney, in contrast, had argued energetically and extensively that New York state's ban on nunchuku violated his fundamental rights.

Yet Judges Sotomayor, Pooler, and Katzman simply presumed--with no legal reasoning--that the right to arms is not a fundamental right.

The opinion in Maloney v. Cuomo is not a good example of intellectual rigor. When a judge treats a constitutional right as non-fundamental--yet cites no legal authority, and does not even acknowledge that the issue has been raised on appeal--it raises the possibility that the judge may be hostile to that right.