Confirmation Hearings for the Appointment of Sonia Sotomayor


The case of Sonia Sotomayor versus The Second Amendmentis not yet found in the record of Supreme Court decisions. Yet ifJudge Sotomayor is confirmed to the Supreme Court, the opinions ofthe newest Justice may soon begin to tell the story of a Justicewith disregard for the exercise of constitutional rights by tens ofmillions of Americans.

In Maloney v. Cuomo, Judge Sotomayor ruled that thepeaceful ownership of arms by citizens is not a fundamental right.Her ruling was supported by no legal analysis. Rather, it was apure declaration. New York State is the only state in the unionwhich completely prohibits the peaceful possession of nunchaku.After President Nixon’s opening to China in the early 1970s, manyAmericans became interested in learning to practice the traditionalmartial arts of China and East Asia. At the same time, “kung fu“movies enjoyed a brief period of popularity, and some xenophobesbegan trying to suppress the martial arts. Unfortunately,legislators in New York State succumbed to the xenophobia, andoutlawed nunchaku.1

By definition, any “martial art” involves training in some formof combat. The martial art may be “empty‐​handed”, such as akido,judo, or kung‐​fu. Or it may use an arm, such as kyudo (Japanesearchery) or nunchaku.2

In a colloquy with Senator Hatch on July 14, Judge Sotomayorsaid that there was a rational basis for the ban because nunchakucould injure or kill someone.3 The same point could just as accurately bemade about bows and arrows, swords, or guns. All of them areweapons, and all of them can be used for sporting purposes, or forlegitimate self‐​defense.

Judge Sotomayor’s approach would allow states to ban archeryequipment with no more basis than the declaring the obvious: thatbows are weapons. Even if there were no issue of fundamental rightsin this case, Justice Sotomayor’s application of the rational basistest was shallow and insufficiently reasoned, and it was contraryto Supreme Court precedent showing that the rational basis test issupposed to involve a genuine inquiry, not a mere repetition of afew statements made by prejudiced people who imposed thelaw.4

The plaintiff in Maloney had argued that (even puttingaside the Second Amendment) the New York prohibition violated hisrights under the Fourteenth Amendment.5 As Judge Sotomayor correctlyrecognized, resolution of this claim required deciding whether Mr.Maloney had been deprived of a fundamental right.

Whatever the situation regarding Circuit or Supreme Courtprecedent on the Second Amendment, there was no controllingprecedent on whether Mr. Maloney’s activity involved anunenumerated right protected by the Fourteenth Amendment.Accordingly, Judge Sotomayor and her fellow Maloneypanelists should have provided a reasoned decision on the issue.Alternatively, the panel might have declined to decide thefundamental rights issue, while issuing an opinion holding that,even if right in general were fundamental, the right to Maloney’sparticular arm (nunchaku) is not.

Instead, the panel simply stated a general rule about theFourteenth Amendment: “Legislative acts that do not interfere withfundamental rights or single out suspect classifications carry withthem a strong presumption of constitutionality and must be upheldif ‘rationally related to a legitimate state interest.’ ”

The quoted language came from Beatie v. City of NewYork, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challengeto the City government’s severe restrictions on cigar smoking.Beatie itself was quoting the Supreme Court’s Cleburnev. Cleburne Living Center.

The Maloney court’s approach was evasive anddisingenuous. Stating the test is not the same as applying thetest. Pursuant to Beatie and Cleburne, there is atwo‐​part test:

  1. Does the legislative act interfere with a fundamental right orsingle out a suspect classification?
  2. If not, is there a rational basis for the law?

The cigar aficionado Mr. Beatie had conceded point 1, but hadargued that there was no rational basis for the anti‐​cigar law; sothe Beatie court analyzed only the second point, anddecided that there was a rational basis. Mr. Maloney, in contrast,had argued energetically and extensively that New York state’s banon nunchuku violated his fundamental rights.

Yet Judges Sotomayor, Pooler, and Katzman simply presumed – withno legal reasoning – that his use of arms in the home is not afundamental right.6

The 2009 Maloney case was not the first time JudgeSotomayor had written about arms and fundamental rights. In the2004 case of United States v. Sanchez‐​Villar, she usedsome dicta from an older case in order to claim that “the right topossess a gun is clearly not a fundamental right.“7 That older case wasUnited States v. Toner.8

Post‐Heller, the Toner dicta about arms wasobviously invalid, since it was based on a misinterpretation of theSupreme Court’s 1939 case United States v. Miller. So whenthe Maloney case came to the Second Circuit, JudgeSotomayor could not, and did not, cite Toner. As a result,there was no case law from the Second Circuit or from the SupremeCourt to support the proposition that peaceful possession of armsis not a fundamental right as an unemerated Fourteenth Amendmentright..

Testifying before this Committee on July 14, Judge Sotomayorprovided further examples of her troubling attitude to the right toarms. She told Senator Hatch that the Heller decision hadauthorized gun control laws which could pass the “rational basis“test.9 Tothe contrary, the Heller decision had explicitly rejectedthe weak standard of review which Justice Breyer had argued for inhis dissent.10

Yet bereft of support from precedent or dicta, Judge Sotomayorsimply presumed – on the basis of no legal analysis – that armspossession is not a fundamental right under the FourteenthAmendment. Both Judge Sotomayor11 and some of her advocates havepointed to the Seventh Circuit’s decision in NRA v.Chicago as retrospectively validating her actions inMaloney. The argument is unpersuasive. Both theMaloney and the NRA courts cited 19th centuryprecedents which had said that the Fourteenth Amendment’s“privileges or immunities” clause did not make the Second Amendmentenforceable against the states. However, as the Hellerdecision itself had pointed out, those cases “did not engage thesort of 14th Amendment inquiry required by our later cases.” Inparticular, the later cases require an analysis under a separateprovision of the Fourteenth Amendment, the “due process“clause.

Notably, the Seventh Circuit addressed this very issue, andprovided a detailed argument for why the existence of modernincorporation under the due process clause would not change theresult in the case at bar.12 In contrast, Judge Sotomayor’s per curiamopinion in Maloney did not even acknowledge the existenceof the issue.

Various talking heads have made the argument that sinceMaloney and NRA reached the same result, andsince two of the judges in NRA v. Chicago were Republicanappointees who are often called “conservatives”, then theMaloney opinion must be alright.

This argument is valid only if one presumes that conservativesand/​or Republican appointees always meet the standard of strongprotectiveness for constitutional rights which should be requiredfor any Supreme Court nominee.

In the case of the NRA v. Chicago judges, that standardwas plainly not met. The Seventh Circuit judges actually made thepolicy argument that the Second Amendment should not beincorporated because incorporation would prevent states fromoutlawing self‐​defense by people who are attacked in their ownhomes.13

A wise judge demonstrates and builds respect for the rule of lawby writing opinions which carefully examine the relevant legalissues, and which provide careful written explanations for thejudge’s decisions on those issues. Judge Sotomayor’s record on armsrights cases has been the opposite. Her glib and dismissiveattitude towards the right is manifest in her decisions, and hasbeen further demonstrated by her testimony before this Com​mit​tee​.In Sonia Sotomayor’s America, the peaceful citizens who possessfirearms, bows, or martial arts instruments have no rights which astate is bound to respect, and those citizens are not even worthyof a serious explanation as to why.

1 Duringthe same 1974 – 75 period, Massachusetts severely restrictednunchaku, but did not prohibit possession in the home, which wasthe type of possession at issue in Maloney. California andArizona restricted possession and use to martial arts exhibitionsor academies. Many other states have restrictions on carryingnunchaku in public places, or in school zones, but these lawssimply treat nunchaku like many other arms, such as knives or bluntweapons.

2See David B. Kopel, Self‐​defense inAsian Religions, 2Liberty Law Review 79 (2007).

3“And — and when the sticks are swung, which is whatyou do with them, if there’s anybody near you, you’re going to beseriously injured, because that swinging mechanism can break arms,it can bust someone’s skull…“
HATCH: “Sure.“
SOTOMAYOR: “… it can cause not only serious, but fatal damage. Soto the extent that a state government would choose to address thisissue of the danger of that instrument by prohibiting itspossession in the way New York did, the question before our court– because the Second Amendment has not been incorporated againstthe state — was, did the state have a rational basis forprohibiting the possession of this kind of instrument?”

4See, e.g., Cleburne v. CleburneLiving Center, 472 U.S. 432 (1985)(rejecting the claim thatthe mentally retarded a protected class for Equal Protectionpurposes, while finding that that a city’s ban on a group home forthe mentally retarded was irrational because it was based onprejudice and irrational fears).

5 Thebrief pointed in various cases in which the Supreme Court hadprotected unenumerated rights, such as Meyer v. Nebraska(right to educate one’s children), Griswold v. Connecticut(right of married couples to use birth control).

6Judges Pooler and Katxman were appointed by Republicans. The factdoes not excuse Judge Sotomayor’s actions in the case. Judges whohave been appointed by Republicans or Democrats alike may behostile to constitutional rights, particularly if the right is onewhich is disfavored by the elite classes in the state where thejudge comes from. Certainly if Judges Pooler or Katzman were everto be considered for confirmation to another position ofresponsibility, their conduct in Maloney should be subjectto the same kind of examination has Judge Sotomayor’s has been.

7United States v. Sanchez‐​Villar, 99Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order ofJudges Sack, Sotomayor & Kaplan), judgment vacated,Sanchez‐​Villar v. United States, 544 U.S. 1029 (2005)(forfurther consideration in light of the 2005 Booker decisionon sentencing).

8United States v. Toner, 728 F.2d115 (2d Cir., 1984).
Vincent Toner and Colm Murphy were convicted of attempting topurchase unregistered machine guns for the purpose of smugglingthem to Northern Ireland, on behalf of misnamed Irish NationalLiberation Army. To their surprise, the purported middleman in thedeal turned out to be an FBI informant.

On appeal, Murphy challenged, inter alia, the federal statuteprohibiting illegal aliens from possessing firearms. He argued thatsince American citizens can possess firearms, the statuteprohibiting illegal aliens from doing so was a denial of equalprotection. The court’s analysis of the issue is as follows:

Murphy was convicted under Count Four of violating 18U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for anillegal alien to receive, possess or transport “in commerce oraffecting commerce … any firearm.” Because receiving, possessingor transporting firearms in interstate commerce is not in and ofitself a crime, United States v. Bass, 404 U.S. at 339 n.4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is notin and of itself a crime, Murphy argues that his Fifth Amendmentright to equal protection of the law is violated by section1202(a)(5). He concedes, however, that the statute passesconstitutional muster if it rests on a rational basis, a concessionwhich is clearly correct since the right to possess a gun isclearly not a fundamental right, cf. United States v.Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (inthe absence of evidence showing that firearm has “some reasonablerelationship to the preservation or efficiency of a well regulatedmilitia,” Second Amendment does not guarantee right to keep andbear such a weapon), and since illegal aliens are not a suspectclass. The Toner court then provided reasons why there isa rational basis for treating illegal aliens differently, inregards to arms possession.

It is questionable whether Toner’s language aboutfundamental rights created a controlling precedent; the issue wasnot even contested before the court, as appellant Murphy hadconceded that no fundamental right was involved. However,Toner provided, at the least, some usable dicta, whichJudge Sotomayor and the other two judges in her panel quoted intheir Summary Order in Sanchez‐​Villar in 2004.

In 2008, the Supreme Court authoritatively ruled that the SecondCircuit’s 1984 reading of Miller was entirely wrong. InDistrict of Columbia v. Heller, the majority opinionchastised lower court judges who had “overread Miller” andcriticized Justice Stevens for wanting to defer to “their erroneousreliance” on interpretations similar to the one proffered by theSecond Circuit in Toner.

The Heller decision stated that “Miller didnot hold that and cannot possibly be read to have held” that onlyarms possession by the militia is protected by the SecondAmendment. Quoting the exact sentence of Miller which hadbeen quoted in Toner, the Heller decision explained thatthis sentence demonstrated Miller’s correct meaning: “itwas that the type of weapon at issue was not eligible forSecond Amendment protection.” Thus, “We therefore readMiller to say only that the Second Amendment does notprotect those weapons not typically possessed by law‐​abidingcitizens for lawful purposes, such as short‐​barreled shotguns.”

Post‐Heller, Toner’s assertion that there isno fundamental right to possess a firearm was invalid. Theassertion in Toner was based on solely on aninterpretation of Miller, and the Supreme Court hasunambiguously stated that the interpretation was wrong.

9 “Buteven Justice Scalia, in the majority opinion in Heller, recognizedthat that was a rational basis regulation for a state under allcircumstances, whether or not there was a Second Amendmentright.”

10 Tobe precise, the Breyer dissent had argued for a “reasonableness“standard. This would be somewhat stronger than mere “rationalbasis.“A foriori, the rejection of “reasonableness” alsorejected “rational basis.”

11 Inresponse to a question from Senator Hatch, July 14, 2009.

12Even so, the Seventh Circuit panel was clearly straining to reachthe result it did. Exemplifying what Justice Brennan had (inanother context) described as “arrogance cloaked as humility,” thepanel claimed that it was merely obeying the rule that lower courtsshould not presume that a still‐​valid Supreme Court precedent isgoing to be overruled. As the key illustration, the panel pointedto the history of the 1997 Supreme Court decision in State OilCo. v. Khan, which overruled the 1968 Supreme Court decision Albrecht v. Herald Co. In Albrecht, the Court hadinterpreted section 1 of the Sherman Antitrust Act, which forbids“Every contract, combination … or conspiracy, in restraintof trade, ” to mean that manufacturers are forbidden to set maximumprices that their retailers can charge. (This is called “verticalprice fixing.”) By 1996, economists had proven‐​and several SupremeCourt cases had seemed to agree‐​that Albrecht’s rationalewas entirely wrong. Yet Albrecht had not been overruled,and so the 7th Circuit obeyed it.

When the Supreme Court in State Oil Co. v. Khanoverruled Albrecht in 1997, the Supreme Court praised the7th Circuit for having adhered to Albrecht, sinceAlbrecht had not yet been overruled, even though almosteveryone had correctly predicted that its days were numbered.

In the handgun ban case, the 7th Circuit panel congratulatesitself for its treatment of Albrecht, and said that asimilar approach is required on the question of whether states mustrespect the Right to Keep and Bear Arms.

The panel’s claim, however, is founded on a rather obviouslogical error. Albrecht’s 1968 judicial rule againstvertical price fixing was an interpretation of one phrase in onefederal statute, and the 1997 State Oil case was areinterpretation of that very same phrase.

However, the plaintiffs in NRA v. Chicago were askingthe court to rule on a constitutional provision that none of the19th century cases had addressed. The 19th century cases haddecided that the Second Amendment does not, by its own force, applyto the states, and that the right to arms is not protected by the“privileges or immunities” clause of the 14th Amendment. However,none of the three cases involved a decision about incorporationunder the “due process” clause.

Contrary to what the 7th Circuit panel implied, the fact thatthe Supreme Court rejects a claim based on one constitutionalclause does not prevent a lower court from ruling in favor of aclaim based on a separate constitutional clause. For example, if alocal government does something concerning religion, and theSupreme Court rules that the government action does not violate theFirst Amendment clause which forbids a government “establishment ofreligion,” then the plaintiff can file another lawsuit allegingthat the very same government action violates the separate clausein the First Amendment that forbids “prohibiting the free exercise“of religion.

13“Suppose a state were to decide that people cornered in their homesmust surrender rather than fight back‐​in other words, that burglarsshould be deterred by the criminal law rather than self help. Thatdecision would imply that no one is entitled to keep a handgun athome for self‐​defense, because self‐​defense would itself be acrime, and Heller concluded that the Second Amendmentprotects only the interests of law‐​abiding citizens …Ourhypothetical is not as far‐​fetched as it sounds.”