Bench Memos

Sotomayor’s Activist Cases: Sotomayor’s 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.

Robert Alt is the president and chief executive officer of The Buckeye Institute.

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