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Sotomayor: States Can Deny 2nd Amdmt

From Ms. Sotomayor’s decision in Maloney v. Cuomo (a pdf file):

U.S. Appeals Court Judge Sonia Sotomayor is pictured as U.S. ...

Maloney v. Cuomo



August Term, 2008
(Argued: December 15, 2008 Decided: January 28, 2009)
Docket No. 07-0581-cv

Plaintiff-appellant James Maloney was arrested at his home on August 24, 2000, and charged with possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1)…  This charge was dismissed on January 28, 2003, and Appellant pleaded guilty to one count of disorderly conduct… Appellant filed the… complaint… seeking a declaration that N.Y. Penal Law §§ 265.00 through 265.02 are unconstitutional insofar as they punish possession of nunhakus in one’s home…  He argues, inter alia, that New York’s statutory ban on the possession of nunchakus violates (1) the Second Amendment because it infringes on his right to keep and bear arms, and (2) the Fourteenth Amendment because it lacks a rational basis. Neither of these arguments has any merit…

The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, 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 directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.

So by this same reasoning the states can deny citizens freedom of speech. It’s only the federal government that is prevented from doing so.

It’s funny, but somehow we had gotten the impression that the federal law, and especially the Constitution, took precedence over state and local laws.

But according to the legal lights of Ms. Sotomayor we were mistaken.

As were the Supreme Court Justices who decided the case she says “compels” her decision, Presser v. Illinois:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. Presser v. Illinois, 116 U.S. 252, 265

But it seems they actually ruled just the opposite.

This article was posted by Steve on Thursday, May 28th, 2009. Comments are currently closed.

40 Responses to “Sotomayor: States Can Deny 2nd Amdmt”

  1. proreason says:

    There’s a firestorm on the horizon.

    • Consilience says:

      Indeed, there is a storm a brewing…at the rate we’re going, I’ll be surprised if we make it to 2010 for elections…

  2. MinnesotaRush says:

    There’s gotta be a race amongst these libs to see who can be the most absurd and outrageous.

  3. heykev says:

    WOW, there’s something that should disqualify anyone from becoming a Supreme Court Judge.


  4. BannedbytheTaliban says:

    Also under this logic, the District of Columbia IS the federal government and not entitled to representation in congress, as is being currently considered.

    She should be asked about this issue in the conformation hearings to see if she contradicts herself to push her/Obama’s agenda. I would also ask her to recite the 10th amendment.

    • Right of the People says:

      I doubt if she knows what the 10 amendment is or for that matter what any of them are. She sure doesn’t seem to know what the Constitution is.

    • Banned, did you use the word “conformation” on purpose? Brilliant!

  5. jackrv says:

    My state, Oregon, has a better “right to keep and bear arms” section than the Federal 2nd Amendment.

    I would take it over the 2nd. If the Federal Constitution overrode the states, then what purpose is it for the states to have a constitution?

    I was taught that the 2nd only applies to what the Feds do and that unless the states have a similar provision, the states can deny / restrict the ownership.

    Jack Van Nostrand

    • Consilience says:

      The federal Constitution’s Bill of Rights extends to all citizens of the US and restriction on federal activity w/respect to those Rights. That said, some states have incredibly tight and restrictive gun laws (CA an NY come to mind). I’m a state’s rights/state sovereignty believer, however as long as the Several States remain a part of the Constitution the basic Right to keep and bear arms cannot be denied (however it may be, and unfortunately is, highly regulated at the state level).

    • proreason says:

      “If the Federal Constitution overrode the states, then what purpose is it for the states to have a constitution?”

      What? Of course the Federal Constitution overrides the states wherever the Federal Government has a defined power. If it didn’t, there would be no country, just a confederation of states that could go in whatever direction they so chose. Jack, that’s EXACTLY THE REASON THE ARTICLES OF CONFERATION ARE NO LONGER THE LAW OF THE LAND. They didn’t and couldn’t work. The founding fathers recognized that and wrote the Constitution. Sheeez.

      I don’t think you will stand by that statement if you give it a moment’s thought.

      “I was taught that the 2nd only applies to what the Feds do and that unless the states have a similar provision, the states can deny / restrict the ownership.”

      You were taught that by liberals who only pay attention to the Constitution when it suits their agenda. Reread my response to the first point. There simply is no USA if the state willy nilly can override federal powers and/or the Bill of Rights. It’s really a ludicrous concept that only a looney liberal would think about.

    • Petronius says:

      The Bill of Rights restricts the power of the Federal government to infringe the liberties of the people and the powers reserved by the States. In its original form it did not apply against the States, only the Federal government.

      The Constitution was amended in the aftermath of the Civil War to insert this provision: “No State shall make or enforce any law which shall … deprive any person of life, liberty or property without due process of law….” (14th Amendment, sec. 1.) The Supreme Court has applied this due process clause, on a case by case basis, to extend some of the liberties in the Bill of Rights to protection against State action.

      There have been very few cases decided under the 2d Amendment. Apparently none of the cases decided under the 2d Amendment have invoked the due process clause to limit State action. Heller apparently did not present this question because the District of Columbia is a Federal city, not a State. In the New York case, Maloney argued that the New York statute violated the 14th Amendment because it lacked rational basis. Sotomayor rejected Maloney’s 14th Amendment argument, and, once having done so, she neatly removed the 2d Amendment from play.

      A reporter on FOX confirms that the Supremes did not reach this issue in Heller. He also states that 2d Circuit decisions (New York) have held that 2d Amendment does not apply against States. But a 9th Circuit decision has held that it does apply. The question is also raised in a case pending in the 7th Circuit. The Supremes may have opportunity to resolve this conflict.

  6. Petronius says:

    Steve: “So by this same reasoning the states can deny citizens freedom of speech.”

    Liberals are enthusiastic admirers of “international norms” and, in particular, of the European laws against “hate speech.” No doubt Sonia Sotomayor relishes the opportunity to engage on this vital Constitutional issue. Personally I am simply batty on the subject of immigration, especially Muslim immigration, so perhaps the days of dear old Petronius are numbered. Perhaps, after my hearing before the Truth and Reconciliation Commission, they may transport me to a mental hospital … for my own good, of course. Yes, they shall document my file, all the classic symptoms of senile dementia. A quiet room would be nice. Yes, a quiet room where I cannot disturb the other inmates with my illusions and my foolish talk. I hope there is a garden. Perhaps someday––if I am good––I may be allowed to plant an olive tree.

  7. tizzodrizzod says:

    When doves cry:

    Sonia Sotomayor, Hispanic Outlook in Higher Education, Nov. 4, 2002:

    *”At that time in my life, as I was meeting all these new and very different people, taking reading classes, and relearning writing skills, Princeton was an alien land for me. I felt isolated from all I had ever known, and very unsure about how I would survive.
    *“The differences from the larger society and the problems I faced as a Latina woman didn’t disappear when I left Princeton. I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of any of the worlds I inhabit.”

    Michelle Obama’s Senior Thesis:

    “My experiences at Princeton have made me far more aware of my ‘blackness’ than ever before,” the future Mrs. Obama wrote in her thesis introduction. “I have found that at Princeton, no matter how liberal and open-minded some of my white professors and classmates try to be toward me, I sometimes feel like a visitor on campus; as if I really don’t belong. Regardless of the circumstances underwhich I interact with whites at Princeton, it often seems as if, to them, I will always be black first and a student second.”

    • Liberals Demise says:

      I suspect that they had a sale on the , “Just what it means to be me because…………..” thesis papers. Ah, please notice the words of woe and insert black where you see “latina.”

      What a set of privileged whiners!!!

    • Right of the People says:

      Washington DC was like a alien land to me. It made me aware of my white maleness and how weird things are there.

    • jobeth says:

      So what we seem to have here are two whining admitted misfits who want the world to change so they can finally feel good about themselves…..typical

      “taking reading classes, and relearning writing skills, Princeton was an alien land for me” ??? How in the H*** did she get in Princeton?! Oh yeah…I almost forgot.

      “I have found that at Princeton, no matter how liberal and open-minded some of my white professors and classmates try to be toward me, I sometimes feel like a visitor on campus”

      “…no matter how liberal and open-minded” So whites can’t ever meet her needs to be accepted? Sounds to me like SHE has the problem…not the white professors.

    • GL0120 says:

      What a whining, low-life, useless, waste of carbon matter.
      Of course there were many places where she didn’t fit in, she’s so frigging stupid even the dumbest of the dumb (with one notable exception) avoid her!

    • VMAN says:

      The reason that Michelle and Sonia felt the way they did is because liberals treat minorities like retarded children. Maybe if they had gone to a conservative school they would have had a more positive experience and come out feeling good about themselves and America. I have seen this first hand. Liberals typically treat minorities like children and conservatives treat all people equally.

    • Rusty Shackleford says:

      From M-obama’s upcoming book, “My life in the white house….the first 100 days”

      “It seemed to me that when I first walked in, the place was like an old-folks’ home. There was the smell of something cooking that I couldn’t identify and not a single BB King CD to be found. Clearly, this was white-man territory and I couldn’t wait to get my hands on it to set it to rights. After all, there was no hanging velor, no vibe, no…no STYLE to the place and I decided right then and there that it needed more things painted gold.”

    • Anonymoose says:

      OK, both of them went to the same school that was–according to most people, very open and liberal, and complained about how much of outsider they’ve felt then and ever since.

      So…….is the problem they can’t handle people different from themselves?

    • pdsand says:

      Agreed, it is very off-putting how much these Democrats lately all have in common the fact that either they didn’t grow up in America, or didn’t grow up loving America, and didn’t feel like they particularly fit in in America. It really makes me question their patriotism and their qualifications for administering this country.
      Barack didn’t grow up in America
      Michelle for the first time is proud of this country because Obama was nominated for President
      Geithner didn’t grow up in America
      Sotomayor doesn’t feel like she fit in

      I know there must be more, but that’s just off the top of my head. At least back in the old days some Democrats were WWII vets and true red-blooded Americans and you could tell that they genuinely loved this country and wanted to change it to improve it in their own eyes. These guys hate America and want to change it out of spite.

  8. Landshark says:

    The word of the day is “incorporation”.

    You’d think a Judge would know this stuff.

  9. JohnMG says:

    I think it only proper to note that many of the original 13 colonies insisted on the Second Amendment’s inclusion as a condition of ratification. No Second Amendment–no signature. Period! The amendment itself states plainly that the right of the people to keep and bear arms shall not be infringed. States may regulate, but may not deny, this right.

    Alas, this idiot, if confirmed, will twist the wording through her convoluted logic to mean anything she says it does–with the Moron’s blessing.

  10. pdsand says:

    I can understand the substantive due process clause when it deals with restrictions in the constitution that say things like ‘the congress shall make no law’ or things of that nature. However, the second amendment is specifically worded to say that the people have the right to keep and bear arms, and that it shall not be infringed… by any authority. “Incorporation” of the 14th amendment substantive due process by the courts is not required. The only requirement is to read the words that are on the paper. As usual, however, the liberals have turned everything around 180 degrees.
    This is just like the prop 8 ruling, when it comes to a conservative principle of law, they fight tooth and nail and begrudgingly give up nit-picking points when confronted with the law as written on paper. If this were a liberal ruling by the court though, the liberals would insist on the broadest possible application by the widest possible interpretation.

    • Liberals Demise says:

      Too bad they don’t crack down on criminals with the same enthusiasm!

    • pdsand says:

      Yeah, when California lets everyone out of jail to deal with their budget problem, you’d think they were violating the rest of our substantive due process rights to live in a safe country. I’d like that to get incorporated.

    • Landshark says:


      Your analysis is correct, of course. I was just arguing that since States and cities can’t put up naitivity scenes due to incorporation, how can a liberal argue the 2nd is the only amendment NOT incorporated?

  11. canary says:

    Sotomayor’s Civil Practice Was With a Small, but Specialized, Firm

    Incicive Media U.S. Properties,
    Karen Sloan
    Law.Com 05-28-2009

    Long before President Obama thrust Sonia Sotomayor into the spotlight by nominating her for the U.S. Supreme Court, she was a corporate attorney with an interesting specialty: designer handbags. Fake designer handbags, to be exact…

    Sotomayor worked at the firm between 1984 to 1992,…..

    .. He recalled tagging along when Sotomayor accompanied a police raid on a suspected counterfeiting operation in a Harlem storefront during the late 1980s…

    “I was crouched in the van, waiting for things to clear up, and Sonia goes running out with the investigators,” Skulnik said. “She got a thrill out of the cops and robbers stuff. It’s not something you expect to see from a corporate attorney.”

    She also dealt with mundane legal matters such as grain export contract disputes.

    Pavia & Harcourt practices corporate; banking; media and entertainment; estate planning and administration; and immigration law.

    He told the Washington Post earlier this month that he had been “instantly impressed” with Sotomayor during the hiring process. Sotomayor’s fluency in Spanish was a plus.

    Pavia & Harcourt made a commitment to train her quickly on civil litigation, an area in which she had no experience., he said.


    • proreason says:

      “She got a thrill out of the cops and robbers stuff”

      I like that.

      Maybe she can recognize a crime. That would be something different than the ACLU lunatic she is replacing.

      Also, she has no paper trail on abortion. There’s a remote possibility she could be pro-life. Some nutters on the left are worried about it. Her upbringing was Catholic, but Hahvad probably scrubbed that out of her.

    • JohnMG says:

      …..”Also, she has no paper trail on abortion. There’s a remote possibility she could be pro-life……”

      You can bet if the Moron nominated her he’s already made sure of her positions on THAT particular topic. Yet the fact that she has no paper trail on abortion serves his purpose well. As in everything else, Obama can always say “I had no idea what her views were” regardless which way the fish flops, and manage to cover his duplicitous ass.

    • proreason says:

      John, he probably did ask, but I still think there is some remote hope on on the abortion topic.

      Will a pro-abortionist ever vote Republican? Not a chance.
      Are Hispanics a Democrat lock? No.

      Therefore, Hispanic’s are the bigger prize.

      I can imagine Mr Revenge throwing feminazis under a bus to get some more Hispanic votes….but only if he’s also convinced she is racist enough. The feminazis will be pissed, but they will still vote for scum like him.

      It all depends on whether there is another female Hispanic who is just as racist as he is and just as pro-abortion as he is. If there wasn’t one available, he would over look Sonya’s failure to actively advocate killing babies.

  12. wardmama4 says:

    I sent my notes to my Senators about this Affirmative Action Disgrace [Vote Hell No] and did not even mention the 2nd Amendment garbage – lest my D Senator use that against me, since he thinks that gun owners should come up with a solution to gun violence or be completely restricted in their ownership. Only a liberal could think this stupidly and hold a position of power – bet if the truth be known, he is like the creepy liar Webb and owns a few of his own!

  13. davemason says:

    “…so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

    Excuse me, but what convoluted brain did this statement come from? Performing our duty to the general government???? How about the ability to protect ourselves from the miscreants that liberal judges like Sotomayor release instead of imprisoning!

  14. 12 Gauge Rage says:

    It’s always the Second Amendment that liberal politicians go after. Can Anyone here list even one restriction placed on the First Amendment? One can argue that the gun grabbing is all about power, which to an extent is true, but at the core of it all is should the ordinary citizen have to rely upon local law enforcement for their well being? Or should they be allowed to arm themselves and make that call of self defense on their own? How long is it going to take for these gun grabbing idiots to realize that not everyone is willing to hold hands and sing Kumbayah, when they can get more of what they want by terrorizing their fellow man.

    • Liberals Make Great Speedbumps says:

      12 Gauge,

      I’d say the way they shutdown the Tea Party on 04/15 in front of the Treasury building, even after a valid permit was obtained, qualifies. But somehow, I doubt if the permit was issued to Code Pink that would have happened.

  15. bronzeprofessor says:

    I wish the 2nd amendment were given the same sanctity as the first amendment. Pornographic DVDs were not invented in the 1780s, yet somehow they fall under “free speech” and they rarely even feature speech at all! But the argument from anti-gun folks is that somehow the 2nd amendment has to be endlessly contextualized and confined to the kind of weapons used by militias when the Bill of Rights was authored. How sad. :(

    I feel like something’s wrong with me. I’m a Puerto Rican from the Bronx who also went to Yale, like Sotomayor, but I feel zero excitement. I feel insulted, instead, by the idea that somehow her biography is “impressive” or “compelling”? I lived in a ghetto and lost a parent when I was young, too, and went to Yale against great odds — but I never expect people to give me extra credit for that. Maybe it’s because I’m a conservative Christian Republican, so I know nobody is ever giong to make a big deal out of my accomplishments. How sad!

    Well, I think the smart thing for the Republicans is to raise issues and see what happens.

    • Steve says:

      “I lived in a ghetto and lost a parent when I was young, too, and went to Yale against great odds — but I never expect people to give me extra credit for that. Maybe it’s because I’m a conservative Christian Republican, so I know nobody is ever going to make a big deal out of my accomplishments. How sad!”

      Alas, your accomplishments would be held against you if you were to be nominated for a position in a Republican administration. Cf. Miguel Estrada…

    • bronzeprofessor says:

      Steve, yes, you’re right. The other person I wish more people would bring up now, is Linda Chavez She was Latina and a woman. She had great credentials and a bipartisan personal history. But the democrats went after her viciously and sank her nomination to Labor Sec’y — many of the same democrats who have few objections to Obama’s roster of tax cheats and compulsive spenders.

  16. 12 Gauge Rage says:

    Your achievements are commendable. But for me, the Second Amendment being limited to the confines of when it was written is an invalid argument. Some opponents have suggested that the Second only applies to when there were militias and no standing army. And therefore a person of today should only have a muzzle loading flintlock at home. I can just as easily argue back that the media should not enjoy the freedoms of the First through radio, t.v., internet, and podcasts since they weren’t around either when the Bill of Rights was penned. And that their means of distribution should only be through newspapers or town criers in the public square.

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