Sotomayor believes that states can regulate and ban weapons

[AlexanderProgressive]

Good thing.

A panel of the 2nd U.S. Circuit Court of Appeals ruled last year, in an unsigned opinion, that a New York state law banning the possession of nunchuks (also known as a nunchaku or chuka stick) was not unconstitutional under the Second Amendment. Sonia Sotomayor was one of the three judges on the panel. While we can't say that she has written that the Second Amendment doesn't apply to the states, since we don't know which of the judges wrote the opinion last January in Maloney v. Cuomo, we can say that she agreed with that statement:

Maloney v. Cuomo: 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”) ...{/div]

Factcheck.org

[spanone]

1. so?

[AlexanderProgressive]

3. So...that's a good thing in my view

As I stated above.

This is good news for those like me, in favor of gun-control who may not have been aware of this fact.
Many conservatives believe the second amendment applies at all levels.

[paulsby]

7. many civil rights advocates

regardless of whether they are conservatives, liberals, or libertarians believe it applies to the states.

and the courts are generally moving in that direction.

[ProgressiveProfessor]

21. Actually its a horrible thing...subtitute abortion for guns and see if you still like the logic

[cabluedem]

35. Exactly. Federal laws like a new assault weapons ban need to apply to all states. nt

[ProgressiveProfessor]

40. So would Heller, and the NYC, Wash DC and Chicago guns bans would be history

Heller may kill the California AWB as well which would be a good thing.

If we want a woman's right to choose to be uniform and protected at a Federal level, then her right to own an AR-15 will be too.

[cabluedem]

44. People here in CA like the assault weapons ban so it will still be entact. nt

[Statistical]

46. Not if SCOTUS incorporates the 2nd amendment via the 14th

So called "assault weapons" meet criteria for protected class
1) in common usage. semi-auto sporting rifles are most commonly rifles sold today
2) legitimate use. target practice, hunting, sport shooting, even home defense
3) not "dangerous or unusual. all weapons are dangerous we are looking for excessively dangerous like flamethrower, grenade launcher, heavy machinegun.

despite the media hype ALL rifles are used in <6% of homicides.

so if SCOTUS incorporates the 2nd via Heller & the 14th I guarantee a lawsuit to overturn the ban within months.

Given there are now not 1, or 2, but 3 cases in circuit court SCOTUS will have to act by next session.

[ProgressiveProfessor]

49. Actually a lot of us do not, and damn Gray Davis, the lying SOB of a State AG for much of it

[Tigress DEM]

48. I think we are "oversimplifying" the logic. STATES would have rights more to fine tune...

It seems to me that STATES would have rights more in line with fine tuning legislation to meet their own constituent's needs. Rather than go "against" the spirit of the rights implied by the 2nd, states would be allowed to work within the basic framework and make laws that provide for common sense. Businesses being allowed to ban guns on their premises, for instance.

With abortion it would be similar. Laws requiring limitations on late term abortions in that state for example or exceptions to minor's notifying their parent's under certain situations. The states have always been given leeway within the framework of the laws to make laws work for their states.

People just don't agree on these big issues in a "one size fits all" fashion, so the states have always had some leeway to rule with the consent of the governed in way in line with their constituent's demands within the context of the general Constitutional framework.

I don't know if it's really a "good" or "bad" thing, it's simply part of the checks and balances set in place. It can be used to try and violate the spirit of the law or to make the law work for the governed in a more specific manner than Federal law dictates.

California being able (NOT under the *ush administration) to make tighter carbon emissions standards based on the proportional effects those emissions in such a crowded and vehicle dependent state is another example of the state's rights.

[ProgressiveProfessor]

50. Would you support that for woman's right to choose?

If you don't and support a uniform Federal standard with unfettered access to abortion, the same logic says that the same woman should be able to own any firearm covered by Heller even in such hellholes of anti gun bigotry like Washington DC, Chicago, NYC, and California.

[Tigress DEM]

51. That ISN'T my point. States rights shouldn't VIOLATE Federal law.

However, there are areas where States can work within the framework of Federal law and that is a way that WE THE PEOPLE can influence the laws that govern us.

The BIGGER problem with THESE kind of hot topic issues is the ability of powerful lobbies to take AWAY the rights of the PEOPLE to influence the laws.

Emminent Domain, for instance, is being mis-used to give land that legally belongs to people who are keeping their property in good repair and violating NO LAWS to companies that want to make a profit from that land and are willing to buy the votes they need.

AND THINK about how it would feel to live in the REVERSE of the "UNIFORM FEDERAL STANDARD" as it COULD have happened if there was one more term of rethuglican rule.

WHAT IF the "federal standard" was changed to "NO ABORTION. EVER. PERIOD."?

Wouldn't you want to be able at the state level to declare independence from that standard and make at least exceptions for case where the mother's life is in danger, and under conditions of rape/incest and exempt "the morning after pill" from inclusion as a form of abortion in order to provide rights at the state level denied by legislation that seems "wrong" from your (our) point of view?


The LAW is inheriently flexible. HOW FLEXIBLE is up to US and right now, we have to work our tails off just to get ANY justice.

[ProgressiveProfessor]

52. As my prior post showed, you need to be careful for what you ask for

[BlooInBloo]

2. Let the self-proclaimed "states' rights"-ers smoke that.

:rofl:

[pnutbutr]

53. yeah

lets just throw the 2nd amendment right out the window. It's just in the bill of rights as a right granted to the people, not to be infringed.

[dkf]

4. The second amendment doesn't apply to states?

Really?

Am I reading that right?

[AlexanderProgressive]

5. That's the way I see it too

By reading the opinion.

[geckosfeet]

8. I don't read it that way. I am not aware of any army or militia that arms itself with nunchucks.

[dkf]

9. We're not referring to the nunchuck ruling but to the other one.

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”) ...{/div]

[geckosfeet]

16. So what. I agree with that to some extent. State laws concerning firearms vary widely.

But we do know that the federal government (SCOTUS) will step in when the 2nd amendment is being violated.

[Statistical]

47. That is the WHOLE POINT.

If the 2nd doesn't apply to the states (via incorporation) then SCOTUS had no authority to restrict the states.

On one hand you say it is fine that the 2nd doesn't apply to the states and on the other you say SCOTUS will step in. The two are mutually exclusive.

If the 2nd doesn't apply to the states then CA for example could ban all firearms in all forms for all uses by all civilians. Just as long as the ban isn't federal it is ok.

[geckosfeet]

55. Not mutually exclusive. Constitution applies to all of us. State laws apply to state residents.

How that works out in the real world is up to legal wranglers to figure out. But the premise is fairly simple - it's a hierarchy of law.

[Statistical]

56. Except that pesky thing called the 14th amendment

why was that passed again oh yeah because the states were passing states laws to strip blacks of their constitutional rights.

Why would anyone consider it better that a state takes away a pre-existing right than when the feds do?

Would you find no problem if the states passed laws restricting free speech, ability to protest?
Would you be fine if the state of CA enacted a state religion and all other religions are illegal?
What if local police could enter your house without a warrant?
What if you could be held without bail, or not able to face your accuser, or be subject to cruel punishment would it be "no problem" that is was the state locking you away and not the feds?

The constitution doesn't grant rights it protects rights. If the rights existed prior to the Constitution than any restrictions on them should apply equally to the states.

The constitution is worthless if your rights can be trampled "only" by the state government.

[geckosfeet]

59. All states have their own versions of laws around the topics you mention.

When the states laws violate constitutional rights, the feds step in.

Happens all the time.

[Statistical]

62. It is like circles with you.

When the states violate the constitution and the FEDS STEP IN.....

it is BECAUSE that amendment of the BofR HAS BEEN INCORPORATED by the 14th amendment.

If an amendment is NOT INCORPORATED the Feds have 0 jurisdication in the matter.

The ONLY reason why the fed steps in or the federal judges rule in civil rights violations IS BECAUSE THAT RIGHT HAS BEEN INCORPORATED.

For you to say two thing:
It doesn't matter if the second isn't incorporated
&
The feds will step in if the states violate the 2nd

is stupid. If it isn't incorporated then the feds can't step in.
If you want the feds to be able to "step in" then it needs to be incorporated.

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

If the 1st, 3rd, 4th, 5th (parts) & 8th (parts) had NOT been incorporated then the feds couldn't do ANYTHING when the states violated those rights.

It is incorporation that allows the feds (both legislatively & judicially) to prevent abuses by the states.

You can be for incorporation or against incorporation, it is a complex issue but you can't be both.

It would be like saying "I am pro-choice, except when that choice results in an abortion".

[jody]

66. Excellent points. The 7th is not incorporation so binding arbitration is included in such things as

car sales, health care, and employment contracts.

[geckosfeet]

70. See the reference link in this post.

If this does not clear up the quite simple point I am making, then have a nice day.

DC vs Heller

[jody]

12. SCOTUS said in Heller, "the Second Amendment extends, prima facie, to all instruments that

constitute bearable arms, even those that were not in existence at the time of the founding."

[AlexanderProgressive]

14. But was that comment aimed at the State level, Federal level. or both?

My guess is that the comment did not address that argument.

[jody]

17. SCOTUS made that statement in the context of the 1st, 2nd, 4th Amendments and the 1st & 4th have

been incorporated in the 14th.

SCOTUS has yet to rule on the 2nd but a future court might, hence the interest in any nominee re incorporation of the 2nd.

[sandnsea]

6. Montana would like that

They are building their own gun manufacturing companies based on this very argument. Works both ways.

[jody]

10. Makes sense and states can regulate and ban same-sex marriage and all rights, i.e. the idea that any

right is inalienable/unalienable or pre-existing and is "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence" is a myth.

Government is not obligated to protect any right for a minority against the tyranny of a simple majority.

Wonderful and when corporatists can buy a majority of Dem & Rep votes to pass laws protecting corporations and abolish laws protecting We the People, then a corporate state will exist.

We the people are dead, long live the corporation.

[anonymous171]

11. So she would be against the Federal AWB?

Sounds good to me.

[taterguy]

13. You're supposed to wait til you hit 13,349 posts before starting an inflammatory thread

It's in the rule book

Look it up!

[AlexanderProgressive]

15. Huh? I am praising Sotomayor, and linking to a non-partisan website of experts

How in the world can my post be inflammatory? Was I supposed to not tell anyone about Sotomayor's view on gun control?

And my guess is that inflammatory threads are not permitted regardless of the number of posts a member might have.

Just because some members might have different opinions about her view does not mean we DU'ers should post only stories about which we all (or most of us) agree.

[Davis_X_Machina]

18. Opinion was pre-Hiller...

...and the extent that the 2nd is incoporated into the 14th is still uncertain.

So what's the big deal here? She was following settled law at the time the opinion was issued.

[AlexanderProgressive]

19. I am praising her decision

I don't know why some have assumed that I was criticizing her. In the first sentence of the thread I made it clear.

My intent is to inform people on this brand new Fact-check.org article.

[jody]

20. Wrong, the MALONEY case was decided: January 28, 2009 and Heller 26 June 2008.

SCOTUS said in Heller the 1st, 2nd, 4th are pre-existing rights.

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”16

Since the 1st and 4th have been incorporated in the 14th, the odds are that SCOTUS will also incorporate the 2nd in the 14th.

[AlexanderProgressive]

22. Will the SCOTUS decision you predict make an exception for mentally ill people

Even though an exception for mentally ill people is not made in the Constitution?

I agree with Obama's thought that the mentally ill should not be allowed to carry guns.

[jody]

23. SCOTUS said in Heller, the following:

2. Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire¬arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

I fail to see how your question in any way pertains to incorporation. :shrug:

[AlexanderProgressive]

25. John Paul Stevens said the SC in Heller "overturned longstanding precedent"

So I believe that Sotomayor and the other fellow judges had the right to cling to the precedent Stevens cited, as opposed to the Heller opinion.

[jody]

27. Sotomayor did not follow a precedent because SCOTUS has not said whether the 2nd like the 1st & 4th

is incorporated in the 14th.

Wikipedia which is no means the final authority on any issue says "On April 20, 2009, under Nordyke v. King the Court of Appeals for the Ninth Circuit held that the Second Amendment was incorporated.<20> This is a binding authority over Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Washington, and the U.S. territories of Guam and the Northern Mariana Islands, but is only a persuasive authority over the remainder of the United States."

[pnutbutr]

54. the 2nd IMO has nothing to do with the 14th

It should be capable of standing on it's own as a right granted to the people, not to be infringed. There is no reason in hell why anything in the bill of rights needs to be tied to the 14th to validate it legality.

[Statistical]

58. The bill of rights needs to be tied to the 14 simply because ....

the BofR is a check of federal aggression. The supporting historical documents were clear on this fact. The founding fathers were not concerned about local govt of their peers but rather a tyrannical federal govt.

If the state govt infringes your pre-existing rights then they are tyrannical but the BofR doesn't prevent that.
The whole reason for the 14th was to put a check on state govt who were infringing of the rights of blacks.

[jody]

29. Stevens and Breyer in their dissents recognized that states acknowledged RKBA was an inalienable

right but they kept too the narrow question posed in Heller, "Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

The dissenting justices argued the 2nd does not protect an "individual right" but they ignored the corollary question, if not the 2nd, then is RKBA protected as an unenumerated right by the 9th Amendment?

The dissenting justices recognized PA (1776) and VT (1777) constitutions and their unambiguous acknowledgment of the inalienable/unalienable right to keep and bear arms for self-defense and that traps them into accepting protection by the 9th as unenumerated right if they argue that the 2nd protects a collective right, i.e. militia.

[dkf]

24. Very interesting.

Thanks for the civics lesson.

[BzaDem]

26. This is because there is direct precedent that says that the 2nd amendment doesn't apply to states.

This precedent was old (pre-Heller), but nothing in Heller overruled that precedent. The opinion that Sotomayor signed specifically said that the Supreme Court might very well change its mind, but that only the Supreme Court can overrule Supreme Court precedent (not a circuit court of appeals).

[jody]

28. Please read Nordyke v. King the Court of Appeals for the Ninth Circuit held that the Second

Amendment was incorporated. This is a binding authority over Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Washington, and the U.S. territories of Guam and the Northern Mariana Islands.

[BzaDem]

45. The ninth circuit is the most summarily reversed circuit in the nation.

I am not surprised at all.

It is of course possible that a circuit court ignore Supreme Court precedent. A court can rule whatever way the judges on the court want. The ninth circuit actually does so quite frequently (which is why they are summarily reversed so often). That doesn't make the Supreme Court precedent any less valid. In fact, sometimes circuit courts do vote to "overturn" Supreme Court precedent for legitimate reason (they might think that the Supreme Court is about to overturn the precedent anyway on appeal, maybe because of a new case such as Heller). But that doesn't make failure to ignore Supreme Court precedent the "wrong choice."

[TheWraith]

64. Don't spew right-wing bullshit.

The Ninth Circuit is NOT the most reversed court in the country. That would be the Fourth Circuit, and you're talking about the difference between 99.6% of cases standing and 99.8%. The reason that they always claim the Ninth Circuit is most overturned is because it's supposedly so liberal-leaning. In fact, it's got an excellent record for being upheld.

[Statistical]

39. The 2nd circuit was not thinking outside the box.

There are 3 methods the BofR can apply to the states:
1) direct incorporation
2) via due process clause
3) via privileges and immunities clause.

#1 is dead end. No longer legally relevant.

#2 is closed via multiple precedents prior to Heller.

In the 9th circuit the plaintiff argued that the privileges & immunities clause of the 14th clearly incorporates the 2nd amendment or if not the 2nd the underlying pre-existing right.

There is no direct precedent on that.

Court bought the argument and ruled the 2nd is incorporated via P&I not due process clause.

[ProgressiveProfessor]

41. Not sure the 2nd Circuit was thinking...

[Statistical]

43. lol. I clicked expecting a complicated response. sometimes laughing is good. n/t

[alarimer]

30. It does say "well-regulated".

I think she is on the right side in this.

[jody]

31. You do know that SCOTUS dealt with "well-regulated" in Heller, don't you? That puts Sotomayor on the

wrong side as regards the law of the land.

[AlexanderProgressive]

32. I don't understand why the "well-regulated" debate is relevant in this ruling

I see you guys talking about well-regulated and I wonder why it's relevant to the 2nd Circuit ruling at all. Can you explain?

[jody]

33. I was replying to #30. I also don't see the relevance of "well-regulated" to incorporation in the

14th Amendment or your OP. :shrug:

[AlexanderProgressive]

34. But didn't you think it was relevant...

When you said that the "well-regulated" part of the Heller ruling put Sotomayor in the "wrong side" of the law of the Land? What did you mean by wrong side?

[jody]

36. Again, my reply was to "30. It does say 'well-regulated'. I think she is on the right side in this."

My reply was relevant to #30 but #30 was irrelevant to your OP.

SCOTUS discussed "well-regulated" in Heller and Sotomayor clearly ignored that opinion.

[Statistical]

37. Is your colon well regulated?

If I said my colon was well regulated, I eat a lot of fiber.

Does it mean that Congress passed regulations on it?

Or does it mean "well functioning","operating as expected"?

A mountain of historical documents clearly show that at the time of the Constitution well regulated had nothing to do with regulation. Contrary its meaning was "well trained, well equipped".

A well trained & capable militia being necessary for a free state, the right of the people to keep and bear arms shall not be infringed.

Very clearly settled in Heller. You might want to read it.

[TheWraith]

65. In constitutional context, "well regulated" means "fully functioning and working." nt

[Statistical]

38. So we have a three way split.

2nd circuit = 2nd does not apply to the states
9th circuit = 2nd DOES apply to the states
7th circuit = we are too afraid to commit one way or the other

The case before the 7th hasn't been decided but based on oral arguments it is obvious the court is not going to rule one way or the other...

So right now:
the 2nd amendment applies to state govt for about 14% of the countries population
the 2nd amendment does not apply to state govt for about 11% of the population.
the 2nd amendment is in a state of limbo for about another 11% of the population.
the 2nd amendment has an undetermined status for the remaining population.

Obviously this can't stand.

SCOTUS will have to hear incorporation arguments to make unified precedent across the country.

My hope is Alan Gura gets his case heard first (before 7th circuit). The guy knows RKBA and Constitutional law. In oral arguments he makes the lawyer for city of Chicago look like a first year student.

I am thinking it will go 5-4 again. Sotomayor even if she is confirmed by then will replaced Souter making it still 5-4. I figure by this time next year we will have a clear precedent and bans like the Chicago gun ban will be found unconstitutional.

[old mark]

42. The Pennsylvania Constitution prohibits regulating firearms. nt

[dorkulon]

57. SHHHH!!

:yoiks:

[HarukaTheTrophyWife]

60. Let us just reflect on the absurdity of banning these

[benEzra]

61. Didn't Presser say that all the Bill of Rights didn't limit state power?

We don't hold to that legal philosophy anymore. Or would you be OK with the 1stA, 4thA, or Roe v. Wade not limiting the powers of states?

[TheWraith]

63. No, it is NOT A GOOD THING.

If it's okay for states to ignore one part of the Constitutionally protected rights, then by that logic they can also make their own laws with regard to, say, abortion. Or gay marriage. Or laws banning homosexuality. In fact, this view is extremely contrary to the existing interpretations of constitutional authority over the states, as well as current case law.

[Mythsaje]

67. Uhhh... What?

First off, nunchaku are a weapon that requires a great deal of skill to be dangerous to others--a tyro is as likely to bash his own head in than someone else's. As weapons go, they're fairly useless, though it's fun to invent cool tricks with them. And I'm caught in the amber of irony that in most places I know where you're not allowed to possess them, there's are several shops selling them. I've had mine for twelve years or more and I don't give a shit if they're banned or not. To me they're a piece of exercise equipment and just another kind of toy. If I want/need a close-quarters weapon, I'll take a stick any day. I've been attacked by nunchucks before and I took them right away from the numbskull trying to bash my brains in. I also threw them aside and kicked the snot out of the guy.

That said, the ruling on the second amendment, on the face of it, is retarded. If the Constitution prevents the federal government from banning guns, then allowing states to do so on the notion that the second amendment doesn't apply to them (however--many states do have a similar amendment in their own state constitutions) simply sets the stage for a thriving black market business in firearms. I'm not sure that's anyone's idea of a solution.

[Name removed]

68. Deleted message

Message removed by moderator. Click here to review the message board rules.

[X_Digger]

69. Non-starter..

Until the SCOTUS takes up the issue, Sotomayor did the right thing based on precedent and the argument presented. No matter how many times I read the decision, I can't see any anti-RKBA malice in it.

Now, her background (inner city, public housing, prosecutor) makes me think she'll probably personally be against the second amendment. She seems to have done a good job of setting aside her personal opinions- that's perfectly appropriate for any judge at less than a SCOTUS level, but we'll have to see how she does on the court.

At worst, she replaces one anti-RKBA judge with another. At best, she could come down on the side of RKBA.

[benEzra]

71. Uh, wait a minute. Did I read this correctly? *Nunchaku* are BANNED in NY??

Holy fricking cow. Aside from all constitutional questions, that law is "teh stoopid", if that's indeed correct. I suspect a bit of xenophobic fearmongering lies at the root of that law...