Sotomayor's 'Fundamental' Flaws
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.
- 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"?
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.
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.
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."
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....