When the Supreme Court decided the Heller case last year striking down the District of Columbia’s handgun ban, it recognized that the Second Amendment confers an individual right to bear arms. However, because the case arose out of Washington, which is a federal district under our Constitution, the Court did not address whether the Second Amendment restricts the states (and local governments) from infringing this right.
While the Bill of Rights originally applied only against the federal government, the Supreme Court has long applied or “incorporated” the fundamental rights (i.e., those deeply rooted in our nation’s history and tradition) and applied them to the states. Given the history of gun rights and ownership in this country, and the consideration the framers paid this right in passing the Fourteenth Amendment, the applicability of the Second Amendment would seem to be an easy question after Heller.
Two federal courts of appeals have issued decisions since the Heller case on this issue. The most liberal appeals court in the country, the Ninth Circuit, explicitly recognized in April that the “Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”
The court came to this conclusion in part because it acknowledged that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” In fact, it is a right that the colonists “fought for and the right that allowed them to fight.”
In the Second Circuit on the other hand, Judge Sotomayor was part of a three-judge panel that in January refused to apply the Second Amendment to a New York state weapons law. In fact, the opinion in Maloney v. Cuomo states that the Fourteenth Amendment does not apply because the New York ban does “not interfere with fundamental rights.” In other words, Sotomayor does not believe that the “right of the people to keep and bear Arms” is a fundamental right. It is another bad decision that not only demonstrates her denial of our Second Amendment rights, but just how radical, liberal, and dangerous a justice she would be on the Supreme Court.