Posted by David Kopel:
Sotomayor vs. the Second Amendment, Part II:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243930775
As I detailed in [1]a previous post, Judge Sotomayor co-authored two
opinions which denied that the possession of a firearm is a
fundamental right. The first case can defended as based on what was,
at the time, still-valid dicta. The second case is indefensible.
The first case was United States v. Sanchez-Villar (2004). For the
proposition that that there is no fundamental right to possess a gun,
Judge Sotomayor and the other two judges quoted United States v.
Toner, 728 F.2d 115 (2d Cir., 1984). Let's look at it.
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:
Murphy was convicted under Count Four of violating 18 U.S.C.App. ยง
1202(a)(5) (1976), which makes it a felony for an illegal alien to
receive, possess or transport "in commerce or affecting commerce
... any firearm." Because receiving, possessing or transporting
firearms in interstate commerce is not in and of itself 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 not in and of itself a crime,
Murphy argues that his Fifth Amendment right to equal protection of
the law is violated by section 1202(a)(5). He concedes, however,
that the statute passes constitutional muster if it rests on a
rational basis, a concession which is clearly correct since the
right to possess a gun is clearly not a fundamental right, cf.
United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206
(1939) (in the absence of evidence showing that firearm has "some
reasonable relationship to the preservation or efficiency of a well
regulated militia," Second Amendment does not guarantee right to
keep and bear such a weapon), and since illegal aliens are not a
suspect class.
The Toner court then provided reasons why there is a rational basis
for treating illegal aliens differently, in regards to arms
possession.
It is questionable whether Toner's language about fundamental rights
created a controlling precedent; the issue was not even contested
before the court, as appellant Murphy had conceded that no fundamental
right was involved. However, Toner provided, at the least, some usable
dicta, which Judge Sotomayor and the other two judges in her panel
quoted in their Summary Order in Sanchez-Villar in 2004.
In 2008, the Supreme Court authoritatively ruled that the Second
Circuit's 1984 reading of Miller was entirely wrong. In [2]District of
Columbia v. Heller, the majority opinion chastised lower court court
judges who had "overread Miller" and criticized Justice Stevens for
wanting to defer to "their erroneous reliance" on interpretations
similar to the one proferred by the Second Circuit in Toner. The
Heller decision stated that "Miller did not hold that and cannot
possibly be read to have held" that only arms possession by the
militia is protected by the Second Amendment. Quoting the exact
sentence of Miller which had been quoted in Toner, the Heller decision
explained that this sentence demonstrated Miller's correct meaning:
"it was that the type of weapon at issue was not eligible for Second
Amendment protection." Thus, "We therefore read Miller to say only
that the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns."
Post-Heller, Toner's assertion that there is no fundamental right to
possess a firearm was invalid. The assertion in Toner was based on
solely on an interpretation of Miller, and the Supreme Court has
unambiguously stated that the interpretation was wrong.
In 2009, Judge Sotomayor was part of a three-judge panel which decided
a challenge to New York state's prohibition of nunchaku, Maloney v.
Cuomo. So when Maloney asserted that he had a fundamental right to
arms, there was no controlling circuit precedent. 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 right to arms 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: 1. Does the legislative act
interfere with a fundamental right or single out a suspect
classification? 2. If not, is there a rational basis for the law?
The cigar afficionado 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. 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 the right to arms is not a fundamental right.
The opinion in Maloney v. Cuomo is not a good example of intellectual
rigor. When a judge treats a constitutional right as
non-fundamental--yet cites no legal authority, and does not even
acknowledge that the issue has been raised on appeal--it raises the
possibility that the judge may be hostile to that right.
References
1. http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243356423
2. http://www.law.cornell.edu/supct/html/07-290.ZO.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
