Posted by Orin Kerr:
More on Sotomayor and the Second Amendment:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243360242
Although I would guess that Sonia Sotomayor is not a big fan of Second
Amendment protections, I think my co-blogger Dave Kopel is reading too
much into [1]Maloney v. Cuomo. Kopel writes that the judges in that
case
seriously misconstrue the Second Amendment itself, when they write:
"The Supreme Court recently held that this confers an individual
right on citizens to keep and bear arms." To the contrary, as the
Supreme Court explained at length in District of Columbia v.
Heller, the Second Amendment does not "confer" any right; the right
to arms pre-exists the Constitution. The Second Amendment protects
but does not create that pre-existing right.
I'm puzzled by the idea that merely using the word "confer" is
somehow a "serious" misreading of [2]DC v. Heller, given that it is
the exact word that the Heller decision twice uses to state what the
Second Amendment does. From Scalia's majority opinion, 128 S.Ct. 2783
at 2799:
There seems to us no doubt, on the basis of both text and history,
that the Second Amendment conferred an individual right to keep and
bear arms.
And at page 2814:
This holding is not only consistent with, but positively suggests,
that the Second Amendment confers an individual right to keep and
bear arms (though only arms that �have some reasonable relationship
to the preservation or efficiency of a well regulated militia�).
The additional fact that Maloney v. Cuomo is a per curiam decision,
and thus may not have been written by Sotomayor at all, suggests to me
that David is reading too much into the decision for insight into
Sotomayor's views on the Second Amendment.
References
1. http://homepages.nyu.edu/~jmm257/000-decision.pdf
2. http://www.law.cornell.edu/supct/html/07-290.ZO.html
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