May 26, 2009

Sotomayor Nomination Brings Heller "Incorporation" Into Doubt

WASHINGTON, D.C. – Second Circuit Court Judge Sonia Sotomayor has been nominated to replace retiring Justice David Souter on the U.S. Supreme Court, but she has a thin, but worrisome, resume on 2nd Amendment issues.

Judge Sotomayor, a New York native, ruled on a Second Circuit Appeals Court panel that the Second Amendment is not a fundamental right and does not apply to the states in the case of Maloney v. Cuomo.

In Maloney v. Cuomo, 554 F.3d 56 (2009), a court panel that included Sotomayor considered a claim by a New York attorney that a state law prohibiting possession of a nunchaku, a device consisting of two sticks joined by a rope or chain, violated his Second Amendment right to bear arms.

Sonia Sotomayor

Supreme Court nominee Sonia Sotomayor

The district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, Sotomayor and the rest of the panel affirmed the district court's decision.

This ruling is in direct conflict with a Ninth Circuit Court ruling in the Nordyke v. King case in California that the Second Amendment is incorporated through the due process clause of the Fourteenth Amendment.

Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, the Sotomayor panel explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.”

Incorporation may be taken up by the high court during its next session beginning in October.

If the Supreme Court doesn't incorporate Heller's findings to the states, then individual states would still be free to ban firearms or classes of firearms.