Sotomayer and the 2nd ammendment

[Statistical]

The only case involving the Sotomayer and the 2nd amendment I have been able to find in a brief Google search is Maloney v. Cuomo.

Now the case involved a ban on nunchucks which I personally don't care about.
However the court could have simply said a ban on nunchucks is not a violation of the 2nd and been done with it.

The court went a step further and said “The Second Amendment applies only to limitations the federal government seeks to impose on this right.”

Now this decision has been contradicted by the ninth circuit which found that the 2nd IS incorporated against the states and a limitation ONLY on the federal govt undermines the intention of the amendment. In other words a protection from feds but not the state is no protection at all. If the fed govt prohibited slavery but allowed the states to pass laws allowing slavery it wouldn't be much protection.

This has now created a split precedent decision where the 2nd amendment applies only to parts of the US, does not apply to others parts and is legal "gray area" in other parts. Obviously this can't stand and SCOTUS will eventually hear a case on this. They have to if only to ensure consistent precedent.

Sotomayer ruled that the 2nd does not apply to the states and may be in a position to rehear the arguments when they reach SCOTUS.
Any thoughts?

[slackmaster]

1. Two simple words in Latin

Stare decisis.

[Statistical]

4. Not sure which way you are going here.

Are you saying that due to principle of Stare decisis the court was obligated to rule the 2nd is not incorporated (or more correctly that there is not sufficient evidence that is has been incorporated).

If so then I agree. I think the split precedent issue is a legal landmine. However the courts made no reference to Stare decisis nor any reference to the fact that the court would not hear augments on 2nd amendment basis due to lack of precedent (which they could have). Instead the court ruled absolutely that the 2nd does not in any way apply to the states.

On the other hand if you are indicating that Heller is safe due to Stare decisis then I agree. I think Heller is established and despite pie in the sky hopes by anti-rights groups it will be a limitation on the feds going forward.

The question is does the 2nd limit the states. If a state for example can ban all firearms period and that flies under the 2nd as being a limit only on the feds then I find that to be no protection.

Do you think she is likely to reverse her decision once on Supreme Court?

[slackmaster]

6. I'm saying that Heller is safe

Do you think she is likely to reverse her decision once on Supreme Court?

I know what she SHOULD do, but have no idea what she would or will do.

[Statistical]

9. I agree Heller is safe.

However what about incorporation of the 2nd against the states.

“The Second Amendment applies only to limitations the federal government seeks to impose on this right.”
Maloney v. Cuomo (2009)

"We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies against the states and local governments."
Nordyke v. King (2009)

Both can not be right.

SCOTUS is obligated to resolve split precedent. It WILL happen it is only a matter of time.

[X_Digger]

11. Sets the precedent to go to the SCOTUS

Depending on whether or not the en banc review in the 9th actually does anything, the SCOTUS will hear a case and set a precedent, maybe even give us a level of scrutiny for judging the constitutionality of existing and future gun regulation.

[Jackson1999]

13. Question about incorporation

Why does SCOTUS need a second case to decide if a right is incorporated? In Heller, for example, why didn't they just say "Oh yeah, this applies to everyone."?

[Statistical]

14. It is generally frowned upon for courts to rule beyond the scope of the question.

The specific question in Heller is under the 2nd is the city of DC required to allow Heller to register his firearm.

The court ruled yes and determined that DC prohibition on handguns and requirement that longarms be locked/unloaded/disasembled violated the 2nd.

Alan Gura INTENTIONALLY chose DC to avoid incorporation. So that if the courts rule incorporation doesn't exist he could still get a "clean case" to confirm check on federal level.

Now that Heller = 2nd protects individual right on federal level the next step is to expand that clear/clean decision to the states.

[paulsby]

35. correct. they may often address those issues

in dicta, but not in the decision itself.

it was not part of the heller question of course, so they could not address it.

[msongs]

2. nunchucks are not "arms" nt

[Statistical]

5. reading is fun.

That isn't the merit of the case.

If the court had ruled that nuchucks are not arms then we wouldn't be talking about it.

The court DID NOT rule that. They ruled that the plantiff had no standing because the 2nd does NOT apply to the states.

The arm in question had no bearing on the decision. I agree nunchucks as arms is a stupid concept. I would rather the plantiff sue under a restriction on a commonly held arm like 9mm pistol but that really isn't the point.

The court stated and I quote:
“The Second Amendment applies only to limitations the federal government seeks to impose on this right.”

[sodom]

25. nunchucks are "arms"

arms are tools or implements of war, weapons. do you understand the phrase coat of arms or even call to arms...the word alarum...to arms. jesus, i hope you were home schooled and not a product of our public education system.

its a historical reality that the word "arms" is not limited in scope to just firearms.
nunchucks are weapons, nunchucks are in fact "arms."
a ban on nunchucks is in fact a violation of your 2nd amendment rights.

beyond lacking just a basic grasp of the english language and history i learned in fucking elementary school. saying that constitutional amendments only apply to limitations set by the federal government and not the state...that the state is free to place limitations and deny you your constitutional rights, well its treacherous, it would be my personal opinion that anyone who holds this opinion is a traitor. this woman is frightening to say the least.

[Statistical]

33. The courts have ruled in the past to limit the term arms.

A nuclear weapon or poisonous gas are weapons of war but the courts have specifically excluded them as arms.

In Miller the plantiff had a sawed off shotgun and the SCOTUS ruled that the weapon had no military purpose therefore was not an arm and the 2nd didn't apply.

So all arms are weapons but not all weapons are arms.

[sodom]

44. given that sawed off shotguns were used in ww1, ww2, and vietnam

being that sawed off and short barrel shotguns have been used in war from as far back as ww1 leading up to the present time, if the court really declared that sawed off shotguns have no military purpose, the ruling is obviously flawed. sawed off shotguns have and are being used by military and police as entry or breach weapons, and are also have and are being used for close quarters combat.

the courts since the foundation of our country have sought out to deny and limit our personal freedoms our rights, just because they make a ruling that seeks to limit our rights does not mean they actually have the authority to do so...they may have the power but not the authority. an unconstitutional court ruling does not invalidate the constitution.

and not all arms are weapons, armor would be considered arms. that is why i mentioned coat of arms in my initial post, it is in reference to the coat a knight would wear over his armor that bared his seal. arms are tools of war.

so. not all arms are weapons, but all weapons are arms. ...including nuclear weapons and poisonous gas.

[Statistical]

45. That may be your flawed personal interpertation but it doesn't make it true.

How does one keep & bear poison gas?
How exactly would you "present arms" with a nuclear warhead?

Trying reading "the founder's second amendment" or some other historical reference.

Just because there are multiple definitions for a word doesn't mean it can be looked at in a vacuum.

The colonists were mainly British and enjoyed rights under British common law. Their understanding of their rights came from that and when King George restricted rights there was outrage both in the colonies but even in England. The BofR was in response to that outrage that something that was "assumed" inalienable could be taken by a tyrant.

The dictionary at the time had the following as a definition of arms:
Anything which a man takes in his hand in anger, to strike or assault another with; an aggressive weapon. --Cowell. Blackstone.

Members of the militia were required to provide their own "arms" however canons, warships, and cavalry were supplied by regular units.

There are plenty of historical accounts by the states of what was arms were acceptable and required by the militia and all would be what we consider "personal arms" today. Lots of funding bills for canons & defensive barricades survive today yet they aren't even called "arms".

Many newspaper stories survive in which they report the troops seizing arms but reading the articles it is clear the "arms" are arms used by individual soldiers. There are no stories in which a paper referred to the sinking of a warship for example as the loss of a naval arm. Destruction on canons are not called the burning of arms.

So we have lots of historical context in which to determine with relative certainty what the Founding Father meaning was when they said "Keep and Bear Arms".

So please tell me from what historical context do you determine that every offensive or defensive item is an "arms"?

[sodom]

48. Quoting the definition from english law doesnt support your case.

naval arm...you never heard of a naval armada? lol.

again quoting a legal definition from a system of government that we rebelled against because they were too oppressive and restricted of our rights, does nothing to support your position.

especially since all the dictionaries i could find from that period, which i have listed below, follow my assertion that the word arms is more broad in meaning. the only definition that follows your example was a legal dictionary for law students in great britian.

The Universal Etymological English Dictionary By Nathan Bailey 1731
ARMS all manner of Weapons

A dictionary of the English language By Samuel Johnson 1773
ARMS. s. without the singular number.
1.Weapons of offence, or armour of defence. Pope.
2.A ftate of hoftility. Shakespeare.
3.War in general. Dryden.
4.Action; the act of tsking arms. Milton.
5.The enfigns armorial of a family.

The New Spelling Dictionary By John Entick 1780
Arms, f, pl. of a family, weapons at war

The royal standard English dictionary By William Perry 1788
Arms, f. pl.efcutcheons; weapons of war

A complete and universal English dictionary By James Barclay 1792
ARMS, f. all kinds of weapons, whether offenfive or defenfive. Figuratively, a ftate of hoftility between two nations; war.
In Heraldry, the badges of diftinction, efcutcheons, or other marks of honour, given by fovereigns, and borne on banners, fhields, or coats.

The new and complete dictionary of the English language: By John Ash 1795
ARMS (s. piu. from the Lat. arma) Weapons of offence, armour of defence, a ftate of war, the act of takings arms, the enfigns armorial of a family, an efcutcheon.

A dictionary of the English language By Samuel Johnson, Thomas Tegg 1812
ARMS, s. without the sing. number.
1.Weapons of offence, or armour of defence. Pope.
2.A state of hostility. Shakespeare.
3.War in general. Dryden.
4.Action ; the act of taking arms. Milton.
5.The ensigns of armorial of a family.

[Statistical]

49. You might want to read some.... Seriously

again quoting a legal definition from a system of government that we rebelled against because they were too oppressive and restricted of our rights, does nothing to support your position.

1) Really. Public school systems have gotten that bad?
2) You are aware that most of the founding fathers considered themselves British.
3) Nice to skip over the entire greater concept which is that it can't be taken out of the historical context. Letters, newspaper articles, journals, legislative minutes, purchases ect all together give us a window into the meaning of the period.

Words change in meaning over time.

You are also aware that the reason they were so OUTRAGED is because of existing rights from BRITISH COMMON LAW which they and their fathers had lived with. Where do you think the concept of the Bill of Rights came from or more generally why were they suddenly made about these "rights"?

They were upset because the understood compact between freeman and govt had been broken. Their rights as they understood them were run roughshod by a Tyrant king. It wasn't just them either. The war was unpopular in England because many were not convinced at the legitimacy of the fight. They agreed that their fellow BRITISH COLONISTS rights were being trampled by George.

They reason for the bill of rights was not to codify some new rights they invented (within a generation in the new world). It was to formally write down their EXISTING rights as they understood them as a warning for future leaders of our govt.

"we understand these to be our existing rights. honestly we would prefer no govt after the experiences of the last decade but we understand it to be a (barely) necessary evil. So here is our warning. if you ever try to take one of these away we will spill your blood also".

The idea that you can divorce British Common Law from the BofR doesn't even make sense. The BofR merely was a written version of EXISTING RIGHTS under British Common Law. It wasn't even all rights it was the rights trampled by George. Prior to tyrant King George it was rights understood to be inalienable however the experiences prior to the Declaration of Independence showed the colonialists that they needed a stronger warning/protection.

The colonists didn't wake up one morning and say HEY WE HAVE A RIGHT TO HAVE GUNS AND STUFF. They wrote the BofR because their EXISTING RIGHTS had been trampled.

Anyways please find a legal scholar anywhere that embraces your concept that "arms" as codified by the 2nd amendment mean all offensive and defensive systems up to and including poison gas and nuclear weapons.

I mean if your argument holds water then it should be easy right? There should be dozens or hundreds of scholars that have looked at the historical context and reached the same conclusion.

Or you might want to learn something and I strongly recommend "The Founder's Second Amendment"

[GodlessBiker]

3. This is a good thing. It means states can impose restrictions that the feds cannot.

[Statistical]

7. The 2nd doesn't prevent restrictions.

There are plenty of restrictions on federal level right now.

If the 2nd isn't incorporated against the states then the states can impose an OUTRIGHT BAN not just restrictions.

The 2nd is meaningless if the feds can't but the states simply outlaw firearms all together.
It will be little comfort that the law came from the states and not the feds.

[ProgressiveProfessor]

8. Apply that to abortion and see how you like it

[spin]

22. Therefore, the states can choose to NOT impose restrictions...

and support the Second Amendment.

The state of Montana has decided to pick a fight with the Federal Government. The Montana State Legislature recently passed legislation, which was signed into law by the Democratic Govenor Brian Schweitzer, which exempts citizens of Montana from federal background check requirements if a gun was made in Montana, sold to a resident of Montana, and intended to remain within Montana.

The idea behind this is that if the gun remains within the state then the commerce clause of the U.S. constitution does not apply and the Federal Government would not be allowed to regulate the sale or distribution of these firearms. This is an interesting concept, and is sure to generate a fight. This one could get really ugly, really fast.
http://law.rightpundits.com/?p=402

[Marksbrother]

10. What is YOUR position on the 2nd amendment?

I couldn't figure it out from your post. For one thing, at times you use "court" but then seemingly within the context of
whatever point you were making, you switch to the plural "courts", and in the confusion of trying to figure out whether
you are trying to make a point about the court on which Sotomayer sits or whether you are referring to "courts" in general, or
state courts or federal courts or something else, I don't have a clue about what your position is.

Would you be so kind as to state it, in plain English, free of modifers etc.

[Statistical]

12. Plain english version.

Courts was a type I fixed it. Court applies to the court that decided the case of which Sotomayer was a jurist.

Here is the simple version. A tale of two cases:

“The Second Amendment applies only to limitations the federal government seeks to impose on this right.”
Maloney v. Cuomo (2009)

"We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies against the states and local governments."
Nordyke v. King (2009)

In Maloney v. Cuomo Sotomayer agreed with the decision that the 2nd does NOT apply to the states.
In Nordyke v. King the ninth circuit states the 2nd DOES apply to the states.

Obviously both can not be right.

SCOTUS will hear an appeal and decide one way or the other.

Anyone think Sotomayer is likely to change her decision from Maloney v. Cuomo.
Sotomayer may be in a position to potential overrule her own precedent.
If not it could be 5-4 limiting the 2nd to federal check only.

In my opinion if the 2nd allows states to completely ban firearms (as long as it is not the feds doing the banning) then it is no protection at all.

[Marksbrother]

15. Thanks. Now, how about YOUR opinion of the 2nd A.

If it helps, I'll go first and state that I'm a strong supporter and in fact I believe I set a state record here for signing up the most new NRA LIFE members, back some years ago.

[patriotvoice]

16. Statistical is pro-RKBA.

See other posts in this forum for evidence.

Incidentally, I'm not sure how much traction you'll find with DUers for your NRA registration record: I wouldn't say there's lots of NRA love here. But maybe I'm projecting.

Welcome to DU!

[Statistical]

17. I thought I explained it ....

"In my opinion if the 2nd allows states to completely ban firearms (as long as it is not the feds doing the banning) then it is no protection at all."

To be more clear.

More specifically:
I believe that a pre-existing right exist to keep and bear in defense or self, home & state.
I believe the 2nd amendment codifies that existing right and protects it from infringement by govt.
I believe the 2nd amendment applies both to the federal govt directly and to the states via incorporation.
I believe that the selective incorporation doctrine via the due process clause is wrong and historically unfounded and that virtually all of the BofR are already incorporated via the Privledges and Immunities clause.

Simply put:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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 wording of the 2nd is much more absolute than the first. Congress is specifically named in the first yet the courts have ruled the 1st also applies to the states. The 2nd says nothing about Congress it says this right shall not be infringed. You would have to suspend all logic to believe the 1st applies to the states but the second doesn't. The wording is intentional

[AtheistCrusader]

19. Most of the states have their own constitutional version of the 2nd Amendment

Washington: SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

Oregon: Section 27. Right to bear arms; military subordinate to civil power. The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power.

Idaho: Section 11. Right to keep and bear arms. The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

(That last bit about taxation is apparently in violation of the Pittman-Robertson act.)

Montana: Section 12. Right to bear arms. The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.

As far as I know, only California, Minnesota, Iowa, New Jersey and New York lack such explicit protection in their State Constitution. Whether they incorporate the 2nd makes little difference to people not living in these 5 states.

[Statistical]

20. There are 44 states with a mention of RKBA in their constitution.

However 5 of those would be considered "weak reference" with little protection.

So we can safely say citizens in 39 states are safe from civil rights violations if the 2nd isn't incorporated.
I will see if I can dig up the paper referencing that.

However isn't that kinda silly.
Would we be content if people could only keep other people as property in 11 states?
If women were not allowed to vote in 11 states?
If 11 states mandated a state religion?
If you had no right to jury trial in 11 states?

I think not. The 2nd is a fundamental and central civil liberty.
It should be protected against government infringement on all levels of govt.

I do concede the point that IF the 2nd isn't incorporated "all is not lost". W
e can always limit ourselves to the 39 states where such rights are protected but that kinda makes "equal protection under the law" ring a little hollow.

Hopefully it will not come to that.

As a side note even if you 100% completely do not believe the 2nd amendment protects anything just as a logic legal debate not based on the merit of the amendment....
How can the same person determine that the first amendment is incorporated against the states buts the second is not. What "logic" allows that to happen?

[aikoaiko]

18. Well the incorporation stance of the 2nd in Maloney v. Cuomo is an unhappy one.

But lets hope that if she is elevated to SCOTUS she will see the bigger picture.

I don't have time to search for these decisions and read them right now, but was there more context or explanation from the 9th and 2nd on the issue of incorporation? Do we know if Sotomayer wrote the decision of the 2nd?

[LAGC]

21. She may have to recuse herself...

...from any SCOTUS ruling on the matter, due to this.

It will be interesting though to see if pro-Second Amendment Democrats back her nomination or not, if she doesn't believe the Second Amendment applies to the states...

[Statistical]

27. I would be happy if they simple asked her that question point blank

"Do you believe the 2nd amendment is incorporated against the states via due process clause of 14th amendment?"

It is possible she ruled the way she did out of process considerations. Maybe she felt it wasn't the place of circuit court to determine that (i.e. keep status quo allow appeal to SCOTUS)?

I just would like her to explain her position on this issue.

[RamboLiberal]

31. Reading this case I too would like to hear her answer

Also hope this case goes to the SCOTUS. Certainly be interesting.

[paulsby]

36. the general principle is that a state may recognize broader or more rights

but cannot restrict any right recognized under the federal constitution.

my state (WA) for instance , recognizes an explicit right to privacy. thus, state agents (like me) are more limited in search and seizure than a federal agent.

i used to work in a state that had much more restrictive miranda standards than the federal standard, etc.

in WA, CCW and open carry have been recognized as a constitutional right under the state constitution.

[Statistical]

37. Except for in the case in question she ruled that the 2nd doesn't apply to the state of NY

Thus NY residents have a more restricted not expanded set of rights.

[paulsby]

38. right

but wasn't that prior to the recent deicsion incoporating heller?

[Statistical]

39. Yes. but...

The ninth circuit ruled to incorporate Heller.
The second circuit ruled to not incorporate.

The second circuit is a peer of the ninth circuit.
They are equals below the SCOTUS.

So the timing wasn't really relevent. At the time the ninth ruled to incorporate nobody had done it before.

[paulsby]

40. i didn't know that.

interesting.

btw, a lot of interesting blog commentary on her, and even her stance on 2nd amendment stuff over at volokh.com

[old mark]

23. I believe that ruling would be struck down if it were reviewed by the SC.

There s no point in having a Federal Constitution if individual rights ir recognizes can be infringed by the individual states, and yes, many states have specific provisions for gun ownership in their constitutions, many even more forecful and obvious than the 2nd ammendment.

It is EXACTLY THE SAME as if states could regulate free speech or voting rights for women or minorities. The 2nd ammendment is NOT a second class right;the right to defend your life is as important as the right to speak your mind. Why do people not comprehend that?

mark

[Euromutt]

24. I would certainly hope so

There no point in having a Federal Constitution if individual rights recognizes can be infringed by the individual states, <...>

Which is exactly why the XIV Amendment was adopted. If you ask Clarence Thomas, for example, it is his opinion that the First Amendment, as written, only applies to the federal government ("Congress shall pass no law..."), and the several states can trample all over freedom of religion, speech, the press, assembly and petition. But even if that interpretation were correct, the XIV Amendment and jurisprudence put paid to that.

And the Second Amendment doesn't even contain language specific to the federal government; it says "the right of the people to keep and bear arms shall not be infringed." It doesn't say "shall not be infringed by Congress" or "by the federal government" or words to that effect.

[Statistical]

28. Exactly.

The language of the second is far more direct.

"Shall not be infringed". No subject for the limitation on he scope of "not infringing" thus implying shall not be infringed by anyone.

The 4th has even more restrictive languages on the scope of govts limitation:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,


The 4th doesn't protect us from ALL searches but rather just unreasonable ones.
The 1st doesn't protect us from restrictive laws but rather laws passed by Congress.
Likewise the protection of Grand Jury before a trial is limited to "capital, or otherwise infamous crime"
The 2nd says shall not be infringed.

If she believes that the 1st, 4th, and 5th amendment are incorporation against the state I would like to hear the logic that somehow excludes the 2nd amendment from the same incorporation.

I mean regardless of your position on RKBA it doesn't even pass simple logic:
1st, 4th, 5th = incorporated (restrictions apply to feds & states)
2nd = not incorporated (restrictions only apply to feds)

I mean please other than "guns are bad" someone give me a rational logic and legally sound argument on why the 1st, 4th, 5th apply to the states but the 2nd doesn't?

[Indy Lurker]

26. I'ts too early to tell.

Back in 1886 or so the supreme court ruled in Presser vs Illinois that the 2nd ammendmnet is NOT incorporated.

it relied on a supreme court decision from 1875 United States v. Cruikshank, 92 U.S. 542 (1875)

which said not only is the 2nd amendment not incorporated, but also the first amendment.


Since then the Supreme court has reversed itself on the first amendment. and went on to incorporate most of the bill of rights.

The supreme court has never gotten back to reviewing if the 2nd amendment should be incorporated.

As such, Sotomayer ruling is consistent with past SC decisions, which is what appellate courts are supposed to do. Frankly I'm surprised the 9th ruled the way it did.

[Statistical]

29. The ninth's ruling is consistant with Presser & Cruikshank

There are 3 legal theories on incorporation:
1) Direct Incorporation - the BofR as standalone document applies to the states
2) Incorporation via Privileges and Immunities Clause
3) Incorporation via Due Process Clause of 14th amendment.

#1 has been discounted by judicial system and historical scholars. There is no foundation that the founders intent was to have BofR be a check on anything other than the federal govt. The fed was the tyrant far away and their simple was not a fear of local govt run by their peers at the time.

Presser and Cruikshank dealt with Privileges and Immunities clause.

Personally I think incorporation via the P&I clause makes more sense.

Since the court is reluctant to say "yup we fucked up back then" they often look for a loophole to keep current ruling in line with past rulings.

Since Presser many non 2nd cases have ruled in favor of incorporation via #3...due process clause.

This is the route that Ninth took in their ruling. Personally I think it is all a bunch of legal tap dancing to avoid making it look like the court can make wrong decisions but if they want to go that route fine.

So it is interesting that the 2nd circuit didn't rule the same way.

[Indy Lurker]

34. the 7th heard oral arguments yesterday

the 7th heard oral arguments yesterday on the Chicago gun ban.

The justices more or less said the 9th was wrong to reverse Presser & Cruikshank, as there was SC precidence.

They more or less said it was up to supreme court to reverse itself.


Oral arguments were 34 minutes, and can be heard here:

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-4241_001.mp3

The judges were pretty snarky btw.

[X_Digger]

41. Snarky on both sides..

I love how at the end, Gura schooled them on post-reconstruction history. Gun control has its roots in racism. Google 'Force Acts or Enforcement Acts' for some interesting reading.

[Pullo]

42. The 7th Circuit didn't want to touch this with a 10 foot pole

They want SCOTUS to decide this, that much is clear.

The three judge panel was pretty harsh toward both the defense's and plaintiffs' arguments, but they were emphatic it wasn't up to them to incorporate the 2nd. It seemed awfully convenient from their prospective that there's already an existing conflict between the circuits on this point.(assuming Nordyke holds)

[Statistical]

43. Sad.

I guess no-one from the 7th will ever be on SCOTUS.

I mean there is no direct SCOTUS precedent to prevent incorporation of 2nd via due process clause.

It is their duty to rule based on the merit of the case and not pass the buck.
If they rule will it be challenged to SCOTUS? Of course. One side or the other.

Still to not rule at all and pass the buck.... to mean that means they neither have the desire nor ability to handle more responsibility and/or authority.

I disagree with Sotomayor on the 2nd circuits opinion but at least they had an opinion.

[RamboLiberal]

30. Didn't see someone already posted on this

I was going to post this as a post but decided better to add as a reply.

Weird part is the case wasn't about possession of a firearm but a nunchuku. Being a fan of martial arts in the 70's and of Bruce Lee and then later going on to spend 27 years studying a martial art, I remember the wild overreaction by some states and cities to the nunchuku and some other martial arts weapons. Just thought I'd throw it out here for discussion. For the record I have no problem so far with the Sotomayor pick.

Second Amendment: Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year. In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms. The district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, the panel affirmed. Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it 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.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Maloney’s lawyers intend to file a petition for certiorari in late June.

http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/

Maloney, 48, is a former Merchant Marine officer and paramedic. A graduate of Fordham Law School, he was admitted in 1996 and has a solo home-based practice in the areas of admiralty law, constitutional law, medical malpractice and personal injury.

He said in an interview that he has been involved with the martial arts since 1975 and was introduced to the nunchaku by teenage friends in New Jersey. He said he incorporated the sticks in a style he developed called "Shafran Ha-Lavan," Hebrew for "white rabbit." He told the court that he had never used the nunchaku to harm a human being or animal. Rather, he said he used the device to hone his dexterity and coordination. He has refused to comment on whether he still uses nunchaku in his exercises.

Maloney was arrested in August 2000 after a telephone lineman working on a pole near his home reported to police that Maloney had pointed a rifle or shotgun at him. Maloney has denied that allegation, saying he merely observed the worker though a telescope.

Maloney surrendered after a 12-hour standoff with authorities. The police seized two unregistered handguns in a safe and two chuka sticks. He was charged with weapons possession and second-degree criminal menacing.

http://www.law.com/jsp/article.jsp?id=1170151356996

[Statistical]

32. The issue is that

The court could have simply said:

"A nunchuck is not a valid arms under the definition of the second ammendment."

Now I don't personally agree with that but they could have resolve the issue that way.
Generally courts should attempt to resolve an issue as narrowly as possible.

Heller for example didn't deal with excessive regulation, use of machineguns, 1982 ban, incorporation, limits of registration costs, etc.

The question was very narrow
"Did DC prohibition on Mr. Heller registering his firearm violate the 2nd ammendment of the United State Constitution"

The answer is Yes.
DC argument is that the 2nd is a "collective right" and Heller argument is that it is an individual right.

The court provided detailed explanation on how/why the 2nd is an individual right because it was at the core of the argument between both sides.

In Heller the court didn't go beyond the scope necessary to resolve the issue at hand.

This case could have been resolved with a simple:
"A nunchuck is not a valid arms under the definition of the second ammendment."

Ironically the court DID make this statement which then resolve the issue but then went further and ruled the 2nd didn't apply to the states. Why? The court expanded the scope of the issue when it wasn't required in order to specifically create a precedent that the 2nd doesn't apply to the states.

Why did Judge Sotomayor feel it was that necessary? If she didn't and believe the statement "A nunchuck is not a valid arms under the definition of the second ammendment." was sufficent she could have wrote a concurring opinion but didn't.

I think it is a valid issue for the Senate to explore. Maybe she/they did that because just saying "A nunchuck is not a valid arms under the definition of the second ammendment." wouldn't give the plaintiff a valid appeal to SCOTUS. If SCOTUS agreed that a nunchuck is not a valid "arms" then there would be no reason to hear the case. So there might be a reason but I want to hear the reason.

[Taitertots]

46. I always wonder the disconnect that happens

When someone believes the constitution is incorporated to the states in almost every aspect except the second amendment.

What other parts are not incorporated?

[Indy Lurker]

47. A couple come to mind.

Amendment V

Right to indictment by a grand jury -- Most states have their own version of this.



Amendment VII

Right to jury trial in civil cases

This is what allows Chicago to have traffic tickets issued by Chicago Police Officers with no possibility of jail time handled by the City's Law Department, frequently by law students.


Amendment VIII

Protections against "excessive" bail and "excessive" fines