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June 17, 2009

Sotomayor's 'Fundamental' Flaws

By Jan LaRue
Supporters of Supreme Court nominee Sonia Sotomayor claim that her Second Amendment rulings are examples of "judicial restraint." The problem is that she's restraining the Second Amendment.

Judge Sotomayor has ruled twice that the right to keep and bear arms is not a "fundamental right." The second time was after the U.S. Supreme Court said that it is.

In 2004, Sotomayor, as a member of a three-judge Second Circuit panel, issued a short summary order in U.S. v. Sanchez-Villar, which rightly affirmed an illegal alien's conviction for possession of cocaine with the intent to distribute and possession of a firearm in violation of a federal statute. The court rejected his Second Amendment claim under a previous Second Circuit ruling, U.S. v. Toner, stating "the right to possess a gun is clearly not a fundamental right."

Members of the Senate Judiciary Committee should ask Sotomayor to explain:

  • The reason her panel failed to express any rationale for rejecting an illegal alien's Second Amendment claim as the Toner court did:
Illegal aliens are aliens who have already violated a law of this country. They are subject to deportation. ... Moreover, illegal aliens are those who, as the district court said, "[are] likely to maintain no permanent address in this country, elude detection through an assumed identity, and--already living outside the law--resort to illegal activities to maintain a livelihood."
  • Why her panel didn't distinguish illegal aliens from law-abiding U.S. citizens and legal residents in relation to the Second Amendment?
  • Does Sotomayor believe that the right to "keep and bear arms" is an individual right, or a collective right dependent upon "the preservation or efficiency of a well regulated militia"?

On Jan. 28, 2009, Sotomayor was a member of another three-judge Second Circuit panel, which considered a Second Amendment challenge to New York's ban on "the in home possession" of a nunchaku, a weapon made of two sticks connected by a rope. In Maloney v. Cuomo, defendant James M. Maloney, an attorney, was charged with six violations including a felony, for nothing more than private possession of a nunchaku. He pleaded guilty to one misdemeanor count of "disorderly conduct," agreed to destruction of his nunchaku, and reserved his right to appeal. On appeal, he argued, among other things, that the state law violated his Second Amendment right, his liberty interest and privileges and immunities under the 14th Amendment.

Six months after the Supreme Court's ruling in District of Columbia v. Heller, Sotomayor joined an unsigned six-page opinion in Cuomo, that Second Amendment rights are not "fundamental": "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 Supreme Court has granted Maloney an extension of time to file his petition seeking review.

Did Sotomayor intentionally ignore where the Heller Court called the right to privately own arms "fundamental"?

By the time of the founding, the right to have arms had become fundamental for English subjects. ... Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," ... cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.

Second Amendment expert Prof. David Kopel criticized the Maloney panel for its analytical deficiency:

The Maloney court's approach was evasive and disingenuous. ... 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.

Secondly, during oral argument in Maloney, which occurred five months after the Supreme Court's ruling in Heller, Sotomayor questioned whether a nunchaku qualifies as "arms" under the Second Amendment. Here is her exchange with Maloney on that issue:

JUDGE SOTOMAYOR: Isn't your biggest problem that even if there's an incoporat[ed] right, the right to bear arms, nunchaku sticks are not what the Founding Fathers were considering arms?


ATTORNEY MALONEY: Well, actually, the Supreme Court is very clear on that--

JUDGE SOTOMAYOR: Except in the way they're used . . .
...

ATTORNEY MALONEY: ... But I want to address the arms question more broadly first because the Supreme Court was quite clear in saying: "The 18th-Century meaning is no different from the meaning today." I'm reading here from 2792 of 128 S. Ct. 2783. ... "The 18th-Century meaning is no different from the meaning today." Then they quote an 18th-Century meaning. Arms are "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."

Justice Antonin Scalia writing for the majority in Heller, leaves no doubt that a nunchaku would meet the definition of "arms":

Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." ...

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity....

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the 2nd Amendment. We do not interpret constitutional rights that way....

Did Sotomayor show indifference rather than deference to the Supreme Court when she questioned whether nunchakus are "what the Founding Fathers were considering arms"?

If Sotomayor rejects Second Amendment rights as "fundamental" constitutional rights, how likely is it that as a member of the Supreme Court she would hold that the Second Amendment is applicable to states and municipalities through the 14th Amendment?

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned Women for Women; former Legal Studies Director at Family Research Council; and former Senior Counsel for the National Law Center for Children and Families.
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