In Maloney v. Cuomo, Judge Sotomayor ruled that the peaceful ownership of arms by citizens is not a fundamental right. Her ruling was supported by no legal analysis. Rather, it was a pure declaration. New York State is the only state in the union which completely prohibits the peaceful possession of nunchaku. After President Nixon’s opening to China in the early 1970s, many Americans became interested in learning to practice the traditional martial arts of China and East Asia. At the same time, “kung fu” movies enjoyed a brief period of popularity, and some xenophobes began trying to suppress the martial arts. Unfortunately, legislators in New York State succumbed to the xenophobia, and outlawed nunchaku.1
By definition, any “martial art” involves training in some form of combat. The martial art may be “empty‐handed”, such as akido, judo, or kung‐fu. Or it may use an arm, such as kyudo (Japanese archery) or nunchaku.2
In a colloquy with Senator Hatch on July 14, Judge Sotomayor said that there was a rational basis for the ban because nunchaku could injure or kill someone.3 The same point could just as accurately be made about bows and arrows, swords, or guns. All of them are weapons, and all of them can be used for sporting purposes, or for legitimate self‐defense.
Judge Sotomayor’s approach would allow states to ban archery equipment with no more basis than the declaring the obvious: that bows are weapons. Even if there were no issue of fundamental rights in this case, Justice Sotomayor’s application of the rational basis test was shallow and insufficiently reasoned, and it was contrary to Supreme Court precedent showing that the rational basis test is supposed to involve a genuine inquiry, not a mere repetition of a few statements made by prejudiced people who imposed the law.4
The plaintiff in Maloney had argued that (even putting aside the Second Amendment) the New York prohibition violated his rights under the Fourteenth Amendment.5 As Judge Sotomayor correctly recognized, resolution of this claim required deciding whether Mr. Maloney had been deprived of a fundamental right.
Whatever the situation regarding Circuit or Supreme Court precedent on the Second Amendment, there was no controlling precedent on whether Mr. Maloney’s activity involved an unenumerated right protected by the Fourteenth Amendment. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the fundamental rights issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney’s particular arm (nunchaku) is not.
Instead, the panel simply stated a general rule about the Fourteenth Amendment: “Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if ‘rationally related to a legitimate state interest.’ ”
The quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government’s severe restrictions on cigar smoking. Beatie itself was quoting the Supreme Court’s Cleburne v. Cleburne Living Center.
The Maloney court’s approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two‐part test:
- Does the legislative act interfere with a fundamental right or single out a suspect classification?
- If not, is there a rational basis for the law?
The cigar aficionado Mr. Beatie had conceded point 1, but had argued that there was no rational basis for the anti‐cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Mr. Maloney, in contrast, had argued energetically and extensively that New York state’s ban on nunchuku violated his fundamental rights.
Yet Judges Sotomayor, Pooler, and Katzman simply presumed–with no legal reasoning–that his use of arms in the home is not a fundamental right.6
The 2009 Maloney case was not the first time Judge Sotomayor had written about arms and fundamental rights. In the 2004 case of United States v. Sanchez‐Villar, she used some dicta from an older case in order to claim that “the right to possess a gun is clearly not a fundamental right.“7 That older case was United States v. Toner.8
Post‐Heller, the Toner dicta about arms was obviously invalid, since it was based on a misinterpretation of the Supreme Court’s 1939 case United States v. Miller. So when the Maloney case came to the Second Circuit, Judge Sotomayor could not, and did not, cite Toner. As a result, there was no case law from the Second Circuit or from the Supreme Court to support the proposition that peaceful possession of arms is not a fundamental right as an unemerated Fourteenth Amendment right..
Testifying before this Committee on July 14, Judge Sotomayor provided further examples of her troubling attitude to the right to arms. She told Senator Hatch that the Heller decision had authorized gun control laws which could pass the “rational basis” test.9 To the contrary, the Heller decision had explicitly rejected the weak standard of review which Justice Breyer had argued for in his dissent.10
Yet bereft of support from precedent or dicta, Judge Sotomayor simply presumed–on the basis of no legal analysis–that arms possession is not a fundamental right under the Fourteenth Amendment. Both Judge Sotomayor11 and some of her advocates have pointed to the Seventh Circuit’s decision in NRA v. Chicago as retrospectively validating her actions in Maloney. The argument is unpersuasive. Both the Maloney and the NRA courts cited 19th century precedents which had said that the Fourteenth Amendment’s “privileges or immunities” clause did not make the Second Amendment enforceable against the states. However, as the Heller decision itself had pointed out, those cases “did not engage the sort of 14th Amendment inquiry required by our later cases.” In particular, the later cases require an analysis under a separate provision of the Fourteenth Amendment, the “due process” clause.
Notably, the Seventh Circuit addressed this very issue, and provided a detailed argument for why the existence of modern incorporation under the due process clause would not change the result in the case at bar.12 In contrast, Judge Sotomayor’s per curiam opinion in Maloney did not even acknowledge the existence of the issue.
Various talking heads have made the argument that since Maloney and NRA reached the same result, and since two of the judges in NRA v. Chicago were Republican appointees who are often called “conservatives”, then the Maloney opinion must be alright.
This argument is valid only if one presumes that conservatives and/or Republican appointees always meet the standard of strong protectiveness for constitutional rights which should be required for any Supreme Court nominee.
In the case of the NRA v. Chicago judges, that standard was plainly not met. The Seventh Circuit judges actually made the policy argument that the Second Amendment should not be incorporated because incorporation would prevent states from outlawing self‐defense by people who are attacked in their own homes.13
A wise judge demonstrates and builds respect for the rule of law by writing opinions which carefully examine the relevant legal issues, and which provide careful written explanations for the judge’s decisions on those issues. Judge Sotomayor’s record on arms rights cases has been the opposite. Her glib and dismissive attitude towards the right is manifest in her decisions, and has been further demonstrated by her testimony before this Committee. In Sonia Sotomayor’s America, the peaceful citizens who possess firearms, bows, or martial arts instruments have no rights which a state is bound to respect, and those citizens are not even worthy of a serious explanation as to why.
2See David B. Kopel, Self‐defense in Asian Religions, 2Liberty Law Review 79 (2007).
SOTOMAYOR: “… it can cause not only serious, but fatal damage. So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court — because the Second Amendment has not been incorporated against the state — was, did the state have a rational basis for prohibiting the possession of this kind of instrument?”
4See, e.g., Cleburne v. Cleburne Living Center, 472 U.S. 432 (1985)(rejecting the claim that the mentally retarded a protected class for Equal Protection purposes, while finding that that a city’s ban on a group home for the mentally retarded was irrational because it was based on prejudice and irrational fears).
5 The brief pointed in various cases in which the Supreme Court had protected unenumerated rights, such as Meyer v. Nebraska (right to educate one’s children), Griswold v. Connecticut (right of married couples to use birth control).
6 Judges Pooler and Katxman were appointed by Republicans. The fact does not excuse Judge Sotomayor’s actions in the case. Judges who have been appointed by Republicans or Democrats alike may be hostile to constitutional rights, particularly if the right is one which is disfavored by the elite classes in the state where the judge comes from. Certainly if Judges Pooler or Katzman were ever to be considered for confirmation to another position of responsibility, their conduct in Maloney should be subject to the same kind of examination has Judge Sotomayor’s has been.
7United States v. Sanchez‐Villar, 99 Fed.Appx. 256, 2004 WL 962938 (2d. Cir. 2004)(Summary Order of Judges Sack, Sotomayor & Kaplan), judgment vacated, Sanchez‐Villar v. United States, 544 U.S. 1029 (2005)(for further consideration in light of the 2005 Booker decision on sentencing).
8United States v. Toner, 728 F.2d 115 (2d Cir., 1984).
Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.
On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court’s analysis of the issue is as follows: