The Volokh Conspiracy -

[David Kopel, May 26, 2009 at 12:47pm] Trackbacks

Sonia Sotomayor versus the Second Amendment:

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.]

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 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.

Related Posts (on one page):

Errors in CNSNews.Com Story About Judge Sotomayor and the Second Amendment:
More on Sotomayor and the Second Amendment:
Sonia Sotomayor versus the Second Amendment:

Comments

[Eugene Volokh, June 3, 2009 at 12:54am] Trackbacks

Errors in CNSNews.Com Story About Judge Sotomayor and the Second Amendment:

The story is at CNSNews.com, and it begins:

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.

Now it might have been more informative to say that she was one of the three judges on the panel; but let's set that aside, and focus instead on the following:

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.

I don't think that's quite fair. The "and therefore" phrase sounds pretty clearly like part of the assertion about what "the Heller decision held." But that's not what Heller held at all: Heller specifically said that it was holding nothing about the application of the Second Amendment (via the Fourteenth Amendment) to state and local governments. (Footnote 23 of Heller: "With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case ....") Let's go on:

"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."

But aggain that's not right: Heller explicitly said (in the same footnote 23 I mentioned above) that "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Presser, in the Court's view, did have some bearing on something beyond a state's ability to outlaw private militia groups — in fact, it had bearing on the very question of whether the right to bear arms applied to the states. Moving on:

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.

Actually, the Supreme Court has expressly held that the Seventh Amendment right to civil jury trial doesn't apply to the states, and that neither does the Grand Jury Clause of the Fifth Amendment. Unless I'm mistaken, the Excessive Bail and Excessive Fines Clauses of the Eighth Amendment haven't been incorporated, either, though their not being incorporated isn't as well-settled as it is for the Seventh Amendment or the Grand Jury Clause. Moving on again:

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."

Here the story omits precisely that constitutional clause (the Due Process Clause) that the Court has indeed used to incorporate most of the Bill of Rights against the states. Moving on again:

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 Nordyke v. King that the Second Amendment did, in fact, apply to the states via the Fourteenth Amendment, heavily citing the Supreme Court in Heller.

Surely the Ninth Circuit is not reliably liberal; it has plenty of conservative judges, who get their way often enough. (The CNSNews story came out before the conservative panel on the Seventh Circuit ruled against incorporation.)

One can certainly anticipate that Judge Sotomayor is likely to be no friend of the individual right to bear arms, as applied to the federal government or to state and local governments; that seems likely given the political wing from which she comes. (This isn't certain, as liberal Judge Pregerson's and conservative Judge Posner's views make clear, but it's the likely bet.) One can certainly criticize the Maloney opinion, as well as the Seventh Circuit opinion, which I in some measure criticized earlier today. And in particular one can certainly argue that the incorporation of the Second Amendment via the Due Process Clause isn't foreclosed to lower courts, because past Supreme Court decisions rejecting incorporation focused on the Privileges or Immunities Clause.

But that's a pretty subtle argument, and if made would show at most that the Maloney opinion was pretty subtly wrong. The CNSNews story avoids the subtlety, and seems to assert that the Maloney opinion was patently and blatantly wrong. But in doing so, it seems to me, the story itself errs, several times and in pretty big ways.