• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Sotomayor’s Activist Cases: The 11-Word Dismissal of the Second Amendment

    To correspond with Judge Sotomayor’s confirmation hearings next week, I am launching a new daily feature: highlighting a key activist case and, separately, a notable quote for each day. In light of the renewed interest in Sotomayor’s Second Amendment jurisprudence, it is appropriate to begin with Maloney v. Cuomo.

    James Maloney was arrested at his New York home and charged with possession of a weapon—in this case, a chuka stick—in violation of New York law. He challenged the weapons prohibition as violating his rights under the Second and Fourteenth Amendments. A three-judge panel on which Judge Sotomayor sat disposed of his claims with brevity—with great brevity. First, after acknowledging that the Supreme Court’s decision in DC v. Heller affirmed that, yes, the Second Amendment does indeed guarantee an individual right, the panel found that the Second Amendment nonetheless did not apply to the states—a decision which would permit complete weapons bans in a majority of the country. Why, you may ask? Because of the Supreme Court’s 1886 decision in Presser v. Illinois. At this point, liberal Sotomayor defenders who have spent their lives judging cases only by whether they liked the results begin crowing about how this decision is a paradigm of judicial restraint. Which would be fine if it were true, but it’s not.

    First, the Presser case and the Cruikshank case that preceded it relied on theories of direct application of the Second Amendment to the states or incorporation through the Privileges and Immunities Clause of the Fourteenth Amendment. If these were the only theories for applying the Bill of Rights to the states, then, based upon Supreme Court interpretation, none of the Bill of Rights would apply. Indeed, Cruikshank also said that the First Amendment doesn’t apply against the states. Since then, the Supreme Court has applied most of the Bill of Rights to the states—including the First Amendment—and it has done so through the Due Process Clause of the Fourteenth Amendment. While there is plenty of academic room for dispute about this constitutional path, it is nonetheless a path well-traveled. As the Supreme Court explained in a footnote in Heller, the decisions in Cruikshank and Presser “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” Indeed, the Court didn’t even consider the Due Process argument in those cases. It is therefore a stretch to say that Presser is controlling precedent for a Due Process claim that it doesn’t even pretend to address.

    But the real activism comes in the Sotomayor panel’s handling of the Fourteenth Amendment claim. On the question of whether a statute restricting possession of a weapon implicates a fundamental right, the panel offers only a conclusion, and no reasoning. In 11 words (and that is counting “a” as a word), the court tersely states: “Where, as here, a statute neither interferes with a fundamental right . . . .” By contrast, the Ninth Circuit Court of Appeals in Nordyke v. King spent approximately seven pages considering whether the right to bear arms was a fundamental right rooted in our nation’s history.

    This cursory treatment of the fundamental rights question gives Sotomayor the distinction of having voted with the only court of appeals decision to so denigrate Second Amendment rights after Heller. The Ninth Circuit in Nordyke v. King found that the right to bear arms is a fundamental right deeply rooted in this nation’s history and tradition, and the Seventh Circuit in its recent NRA case did not speak to the question of whether the Second Amendment implicates a fundamental right.

    The lack of any support for the fundamental rights conclusion regrettably tracks her similarly glib decision in Ricci v. DeStefano, the New Haven firefighters case recently reversed by the Court. In Ricci, five justices overturned her opinion, and, as Ed Whelan has demonstrated, even the four justices in dissent seemed to question the appropriateness of her approach to the case. But worse than merely getting the case wrong, in Ricci, as in Maloney, her grossly inadequate treatment of claims makes clear that she was seeking to impose her own policy preferences under the pretext of restraint.

    Legal academics have great fun discussing the doctrine of incorporation—the process by which selective rights in the Bill of Rights are made applicable to the states. But Judge Sotomayor’s opinion reveals little about her views on this doctrine, while suggesting a hostility to, and willingness to be dismissive of, Second Amendment rights.

    Posted in Legal [slideshow_deploy]

    34 Responses to Sotomayor’s Activist Cases: The 11-Word Dismissal of the Second Amendment

    1. Spiritof76 says:

      What we have is the making of a third-world country. In economics, we are accelerating towards it with oppressive taxation, rewarding idleness and political favoritism trumping rule of law. The public education is dismal. The judiciary can more aptly be described as a kangaroo-court system. Sotomayer has least amount of respect for our Constitution. Her pronouncements off the court can be termed racist, if it had been uttered by a white person.

      Sotomayor will be seated because of the Congressional make up.

      While it makes us feel that we are examining her record critically(which we should do if for nothing else but information)we can not stop her being a Supreme Court judge.

    2. Steve M, Michigan says:

      Question. If Sotomayor believes the 2nd amendment can be uprooted by an individual state's decision, does she also believe that a state can be rid of womens suffrage or could they legally reinstate slavery? How about a state closing down all media?

    3. James Cooke, Rockwal says:

      It is becoming time, I fear, for pitchforks and torches.

    4. Ron Thompson says:

      we can't stop her selection especially when you have folks like L.Graham on the commttee that is swayed by popularity instead of the right thing. It doesn't help that the republicans have promised not to filibuster the nomination. The question is why are we even having the hearings when the democrats want her in there for the distruction of the Constitution, and the republican's are worried about popularity. Maybe if the Reps looked a the latest poll numbers they would be more comfortable with fighting the nominee. Even Hispanic see this is not a good deal!

    5. jim smith says:

      Sotomayor, regrettably, will be confirmed. The democrat votes are there plus Nobama has both houses of Congress over a barrel, largely supervised by Rahm and his gang of Chicago-style leg breakers and other assorted goons. Add to that the unprecedented amount of money Nobama has from his campaign, which is most likely paying all the ethically challenged czars. Politics is money and power gotten from buying votes with the money. Sotomayor will become the younger version of Ms. Ginsburg, only with more, wise latina hair.

    6. GLENN BUNCE GRAND J says:


    7. Genie, Maine says:

      No one should serve as a federal judge unless they believe in the Constitution of the United States as the single authority for all federal law.

      During the Heller hearing, another Supreme Court justices have questioned whether the Second Amendment should be considered.

      The Constitution contains an inherent method of change. Amending the Constitution is difficult so that it is not done whimsically.

      Our Constitution has provided a unique relationship between the citizen and his government. Above all it is based on individual freedom. Now, as at our founding, nothing should be held more important. The Constitution protects individual freedom…it does not give us rights, but it protects our rights.

      When officials vow to 'uphold the Constitution' they should mean exactly that. If men and women demonstrate before they accept an office that they do could not 'uphold the Constitution,' they should be deemed unfit to serve.

    8. Jim J., Texas says:

      Does Sotomayor personally own any guns and does any of her family possess firearms ? I would assume some of her family members possess some sort of firearm, especially Puerto Rico,

      Dominion Republic area.

    9. David, Cincinnati, O says:

      It is wonderful to contemplate the opinions which will penumbrally emanate from the glory of our soon to be seated emPATHETIC Supreme who is wiser than Constitution bound old white men.

    10. Tim AZ says:

      I say again these rights are granteded by God. The Constitution simply acknowledges the origins of these rights. No human has the authority to tamper with these rights. But an individual human may choose not to exercise their God given rights any time they choose. FROM MY COLD DEAD HANDS!

    11. Dennis A. Social Cir says:

      The courts are making laws, not interpertung them. The constitution is a thing of the past.

    12. Pat, Vancouver WA says:

      I see the US courts, in the future, becoming the kangaroo courts of the Third Reich. With as much that has happened over the years and the past 6 months, I think this is very possible.

    13. Pingback: Sotomayor is “Dismissive” Of The Second Amendment : Black Bear Blog

    14. Angel, Ohio says:

      This is a lifetime appointment not a term limit assignment. I hope the Senate asks the right questions to expose her inability to follow the constitution.

    15. Garry, Phoenix says:

      The more I see and hear the more I give credence to the proposition of a separate country for both the conservatives and the liberals…. Solomon would surely agree. It is too bad CA and OR are located so far left of center or we could just draw the line down the middle. But then again they will soon be part of Mexifornia so that leaves the "flyover states" for the conservatives.

    16. Ted, CA says:

      "You can fool some of the people some of the time, Etc"

      Are congressmen people?

      You could have fooled me!

    17. Mulberrybank, Detroi says:

      If you-guys cannot work with Judge Sotomayor, you sure will not like the next ones in line. Go take your blood-pressure medicine, it pretty-much is all the same. One elitist vs another elitist. We will never be like Norway with a giant trust-fund for ALL. Both/All sides just keep sucking our $ based on their scary versions of an imaginary-future.

      ..So we keep building war-weapons even the Defense Department does not want.. THIS is all the American-mind can fathom?

      Best Wishes and Good Luck!

    18. 13 Stars, Texas says:

      When Pres. Eisenhower was asked about mistakes he made during his presidency, his answer was, "Warren Burger." Bush #41 must answer for David Souter. Both were surprisingly left of center.

      I believe that a great deal of attention should be paid to what Sotomayor has said outside of the courtroom. Once appointed for life, she will have no one to answer to but God Himself, and given her answer about the rights of unborn children (she told Sen. DeMint she had never thought about it), she may not be thinking about that either.

      Her understanding of the Bill of Rights is meager. She does not appear to understand that they are God-given rights, affirmed in English Common Law, and re-affirmed in the Constitution. It is a Bill of RIGHTS, not privileges granted by the government. Perhaps she has not studied American History.

      It is our Constitution that set us apart from every other nation on earth, and it should NEVER be subject to review in the "light" of international law.

    19. Pingback: Sotomayor’s Activist Cases: The 11-Word Dismissal of the Second Amendment | Democrat = Socialist

    20. Ryan The Devil Dog, says:

      Contact your State Senators. Senators Begich and Murkowski get an E-mail a day from me. Save them to your files and then save the responses, if you get one. When you inform them of going public with their lack of enthusiasm they start to reply pretty quick. Sarah Palin is still fighting folks, Don't believe the Quit rhetoric

    21. John, Colorado says:

      I don't advocate the secession of any states from the union.

      However, I do adovocate the expulsion of a few blue states.

    22. Steve M, Michigan says:

      So… If Sotomayor says that the 2nd amendment is not bound by states rights, she also agrees that we can round up all the illegals in Texas and repeal the 13th amendment. Somebody tell me I'm wrong about HER opinion that says that is OK.

    23. Jeff,Alabama says:

      If people do not wake up soon our freedoms will be and are becoming a memory.People like Sotomayor seem to lack something called common sense and that applies to most of our politicians these day's.What was once just good normal moral behavior is now and soon will be against the law with nominations such as Sotomayor.

    24. iyooe, petoskey mich says:

      It seems to me as though we no longer have a court that fulfills the constitutional requirement for checks and balances. We now have an executive branch and two legislative branches. If the judges prefers to make laws instead of interpreting the constitutionality of a situation, then why not run for the senate?

    25. Mike Mancuso, San Jo says:

      I don't think Sotomayor's confirmation is a foregone conclusion. Up close and personal, it is clear that she does not follow the constitution or even common sense. It seems that only conservatives care, so they should adopt and sharpen the methods of the democrats and not leave any stone unturned. We want to know if she jaywalks, has smoked marijuana or steps on bugs. I may be wrong, but I don't see where she scores many points for being female or Latina. She has, uh, no carisma.

    26. Joe, Raleigh, NC says:

      If the Honorable Senators are not awake yet, consider this the wake-up call. Many Dems are not for gun bans, and Democrat Sens. who vote for Sotomayor should have very tough sledding next time around, and ALL Republicans who vote for her confirmation should consider this as their last term.

      If we apply Sotomayor's logic, any state will be able to ban the 2nd Amendment, then the 1st Amendment- heck, let's knock off the whole Bill of Rights.

      Of course, Alec Baldwin's body guards and Babs body guards will legally have guns, and the yellow tape, notebook, and flashlight patrols will protect the rest of us.

      Unlike Sotomayor, the Founding Fathers put some thought into the founding documents, and the fact that they place the right to bear arms, (duh, all military bear arms), and articulated the people's right separately, then established the 2nd Amendment, immediately after and adjacent to, the 1st Amendment signifies their concerns, intent, and resolve – they, in fact, did not surrender their firearms after the war to set an example. We are sufferring fools too gladly these days.

    27. Roger S., MA. says:

      It appears to have been forgotten that the 2cnd amendment to the constitution was ratified by the proper process, thereby becoming law applicable to all citizens. Clearly, this meant a right of the people which through the very act of ratification was to be guaranteed beyond possible infringement, meaning not to be limited in time, scope, or place.

      It is apparently forgotten that the Constitution was intended as an instrument of the people for the people, not of the states for the states. It was meant to be a uniform code of rights as well as a uniform code of governing procedures; meant to replace the patchwork of laws constituting the various governments of the United States up until that time; obviously, meant to set a minimum universal standard. The states' representatives convened to work out and ratify this new body of laws at the peoples' pleasure, not the other way around.

      Were states to be permitted to revoke any of these rights as a matter of unique discretion, this would logically leave ALL rights enumerated in constitutional amendments to the discretion and pleasure of state legislatures. Obviously, this is an absurd outcome which fragments the intended minimum standard of rights applicable in all states. This leads to the further absurd outcome that all of an American citizen's rights, also his so-called "natural rights" could become subject to change at a moment's notice, or whenever he crossed a state boundary.

      Clearly, the intent of the Bill Of Rights as well as subsequent constitutional amendments was to define a minimum standard applicable throughout US territory. To follow Sotomayor's reasoning, a person's amendment rights are valid only in federal court and the District of Columbia? If that is to be considered "settled law", well, then we might as well throw out all of them pesky little amendments and rights. Oh, have I "Lochnerized" now? Is Oliver Wendell Holmes turning over in his grave yet? I hope so. Time to disinter him and drive a stake through his heart!

    28. Let's Do It!!!, says:

      I'm not a knucklehead red neck, just tired of the same old and the ever evolving new BS. We don't work for the government, they are supposed to work for us! When did this get forgotten? I think Texas should exercise it's right as a former republic and pull out… Don't worry guys, we'll approve the immigration of all people with common sense that can provide for themselves…

    29. Andrew McCreight, Te says:

      Lindsay Graham got it right this morning. This hearing is about ideaology.The Conservative view versus the Liberal view.

      Lindsay Graham sounded like he had already made up his mind to affirm Sotomayors nomination.

      He stated that Obama had won the election and that should be respected in regards to the nomination.

      I agree with Graham to a point. But I have to make the following observation: The Liberals in congress do not respect this position and have demonstrated such in the past.

      The reason the Republicans are losing elections and influence in this country is that they will not take hard stances.

      They will not take on the liberals based upon how the Democrats attack on Conservative nominees and issues.If Repubs continue to wimp out in times of hard decision making, they will always be out of power.

    30. Neal Lang, Boca Rato says:

      "It is becoming time, I fear, for pitchforks and torches."

      "Pitchforks and torches" never furthered the cause of liberty in this country, but "the People's" owned firearms most certainly have.

    31. Neal Lang, Boca Rato says:

      "When Pres. Eisenhower was asked about mistakes he made during his presidency, his answer was, 'Warren Burger.' Bush #41 must answer for David Souter. Both were surprisingly left of center."

      Actually, Dick Nixon nominated Burger to the Supremes – Ike nomited Chief Justice Earl Warren. Even Ronnie Reagan has "some 'spaining to do" with his nomination of Kennedy when he couldn't get Robert Bork passed the Democrat "Star Chamber" (aka – Senate Judiciary Hearings.)

    32. John J Wynn,Red Bank says:

      I believe that "Liberty and Tyranny"and "Men In Black" books written by Mark R.Levin says it all ladies and gentlemen also "Live Free or Die" by Mark Steyn -IMPRIMIS:April 2009 say it all as well. From my heart to your heart:Let Freedom Ring no matter the cost.You all be well

    33. Pingback: Liberally Conservative » Blog Archive » Some Judicial Facts On Sonia Sotomayor

    34. Joanna Campbell, VA says:

      Two things, in particular, are deeply troubling. The first is that about 80% of the cases she tried, were appealed and have reached the Supreme Court have been overturned. What are the implications of this for the kinds of cases that may reach the Supreme Court Bench? It seems to me that the nature of cases that reach the Supreme Court may shift. On the one hand, it may be, cases that ought to be settled at a lower court will be appealed to the Supreme Court in order to leverage Sotomajor's positions. On the other hand, it may be, cases that ought to and do reach the Supreme Court will not be given an impartial hearing. It is lose-lose in either case. How we've allowed this to happen gives me cause for pause and mobilizes my attendtion to do my best to see to it that this does not occur again.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.