Thursday, May 28, 2009


Judge Sonia Sotomayor has been accused early on as judging based on what she wishes the law was, instead of what the law is. Her actions in this particular case seem to support that criticism.

Sotomayor's Gun Control Positions Could Prompt Conservative Backlash

Judge Sonia Sotomayor could walk into a firestorm on Capitol Hill over her stance on gun rights, with conservatives beginning to question some controversial positions she's taken over the past several years on the Second Amendment.

The chief concern is her position in the 2009 Maloney v. Cuomo case, in which the court examined a claim by a New York attorney that a New York law that prohibited possession of nunchucks violated his Second Amendment rights. The Appeals Court affirmed the lower court's decision that the Second Amendment does not apply to the states.

The ruling explained that it was "settled law" that the Second Amendment applies only to limitations the federal government might seek on individual gun rights.

Despite last year's landmark Supreme Court ruling in the District of Columbia v. Heller, in which the court ruled that the Second Amendment protects an individual right to bear arms, the Maloney ruling determined that case "does not invalidate this longstanding principle" that states are not covered by the Second Amendment. (Another appeals court since the Heller case reached the opposite conclusion.)

Although this case involved martial arts weaponry and not firearms, the 2nd Circuit did not make this a distinctive point to debate. Sotomayor's interpretation of Heller is simply wrong; one wonders how Heller states it's individual right, yet the 2nd Circuit appears to state that the right only applies at the federal level.

Her reasoning in Maloney also cited Presser v. Illinois, to reinforce her opinion that the 2A is not a right applied to the states. Citing Presser is taking a vary narrow view of the precedent that it set; it wasn't specifically a 2A case to begin with. Beyond that, even the 9th Circuit - normally not a court loved by gun owners - has chosen to uphold Heller.

You can read the full decision here - it's a PDF, 6 pages longs.


John Spinuzzi said...

We must ask: How can the other amendments (which are PART ofthe constitution) apply to individuals within the states, but not the second amendment? Of course, we must also realize that the courts believe that the Constitution is dead and they are only giving it lip-service for now to avert a major uprising until the government has enough of a stranglehold on the American people that it can be openly announced.

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