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Sotomayor's Decision in the Second Amendment Case

by Professor Will Huhn on July 14, 2009

in Constitutional Law,Wilson Huhn

     Here is a more complete analysis of the Second Circuit's decision earlier this year in Maloney v. Cuomo , the Second Amendment case in which Judge Sotomayor participated.

     A New York State statute makes it a crime to possess nunchucks, and James Maloney was arrested and charged with this crime.  He pled guilty to a lesser offense (disorderly conduct) but he sued in federal court to challenge the constitutionality of the law under the Second Amendment, which provides:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

     The federal district court dismissed Maloney's claim on the ground that the Second Amendment does not apply to the states.  On January 28, 2009, a three-judge panel of the Second Circuit unanimously affirmed in a per curiam opinion.  Judge Sonia Sotomayor was one of the judges on the panel upholding the New York law.

     In what is by now a familiar pattern for Judge Sotomayor's decisions, the reasoning of the appellate court is logical and heavily reliant on precedent, and the writing style is crisp and spare.  The entire decision is six pages long (double spaced), including the title page and recitation of the facts. 

     The Court of Appeals notes that in Presser v. Illinois (1886) the United States Supreme Court ruled that the Second Amendment is applicable against the federal government only and not against the states, and that a panel of the Second Circuit followed that decision as recently as 2005.  In 2008 in District of Columbia v. Heller the Supreme Court ruled that the Second Amendment confers upon people the right to keep a handgun in their homes for personal self-defense, but, the Court of Appeals noted, the Supreme Court expressly reserved the question whether or not the Second Amendment applies to the States.  Here is what the Justice Scalia had written in footnote 23 of his opinion in the Heller case:

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

     Referring to Presser as "settled law," the Court of Appeals declined to overrule it, not because it thought that Presser was rightly decided, but because it lacked the authority to overrule the decision of a higher court.  The key passage in the Court of Appeals' decision in Maloney v. Cuomo is where the Court discusses whether or not it has the authority to overrule precedent from the Supreme Court.  The Court of Appeals decided that it does not have this power – even where it appears that the Supreme Court itself has questioned the continued validity of a prior case.  Until the Supreme Court actually overrules one of its prior decisions, the lower courts (which include the Court of Appeals) are bound by that decision.  Here is what the Court of Appeals said on that point:

we âmust follow Presserâ because â[w]here, as here, a Supreme Court precedent âhas 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.ââ 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).

     In support of its decision to follow Supreme Court precedent, the Court of Appeals quoted Bach (the 2005 decision of the Second Circuit) which itself quoted a decision of the Supreme Court ordering the lower courts to follow its decisions until they are overruled.  The Court of Appeals cited another Supreme Court decision in support of the same point.

     The Court of Appeals' decision in Maloney is characteristic of what we have come to expect from Judge Sotomayor – terse, and heavily reliant on precedent.  It will be difficult to criticize her for either the reasoning or the result in this case.  The Second Circuit simply followed existing law.  Will Sotomayor be as beholden to precedent if she ascends to the Supreme Court?  I doubt it, nor should she be.  It is the job of every justice of the Supreme Court to evaluate whether or not existing interpretations of the Constitution – even "settled law" – are still valid.  That is not the job of judges in the lower courts, at least with respect to the decisions of higher courts.

     Should the Supreme Court overrule Presser and find that the Second Amendment is applicable against the States?  I think so, but that will have to be the subject of another post.


Dave July 14, 2009 at 9:11 am

I think you are all over this one. The decision is horrible, but what choice did they have?

What if the prohibition on slavery didn't apply to the states? Yikes.

This is a good example of why the SCOTUS must review its own work.

InsuredbyUzi July 14, 2009 at 3:07 pm


If it didn't apply to the states, we probably wouldn't have the urban scourge that we have now, in a lot of areas.

Quidpro July 14, 2009 at 7:55 pm

If the First Amendment, which expressly restricts only federal power ("Congress shall make no law…"), can be applied to the states via the 14th Amendment and the "incorporation" theory, then certainly the Second Amendment, which is not textually limited to the federal government can be applied to the states

Professor Will Huhn July 15, 2009 at 5:08 am

I agree with Quidpro. The debates in Congress in 1866 indicate that the sponsors, drafters, and supporters of the 14th Amendment intended to make all of the provisions of the Bill of Rights applicable against the States. This is the position that Justice Hugo Black took in his dissenting opinion in Adamson v. California (1947). I am not persuaded that Black was correct in maintaining that these were the only "privileges and immunities" of United States citizens meant to be protected against action by the states and that there are no other, unenumerated rights – but the evidence is very persuasive that, at a minimum, all of the provisions of the Bill of Rights were meant to be incorporated into the 14th Amendment. In a future post I will lay out this evidence so that you can judge for yourselves.
If this analysis is correct, then the Second Amendment is applicable against the States regardless of how the Second Amendment itself is interpreted.

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