Battles of the 2nd Amendment

Judge Sotomayor of the 2nd Circuit has been nominated to replace Justice Souter on the Supreme Court bench. The nomination has invited a flurry of opinions from everyone with two cents. Sotomayor's nomination has been controversial to say the least, but, as everyone knows at this point, despite all the questions surrounding her record, her victim-minority sensibilities and her competence as an intellectually-qualified jurist, the probability that she'll fly through the Senatorial kabooki theater (aka confirmation process) is very high. But recently, the Supreme Court's reversal of the infamous white firefighter case (Ricci) certainly adds to Sotomayor's baggage that may weigh her down during the hearings. Sotomayor was one of three 2nd Circuit judges that held against the firefighters. Without going into the details of the case, it's enough to say that the Supreme Court rightly held (and reversed Sotomayor) that a disparate impact along racial lines was not an acceptable basis upon which to deny the white firefighters (and one hispanic) their promotions, which they earned by passing a promotional examination. It was a momentous victory for meritocracy, fairness, and racial equality.

But perhaps this is not the most interesting happenstance surrounding Judge Sotomayor. Another one of Judge Sotomayor's 2nd circuit case, Maloney v. Cuomo, will be reviewed by the Supreme Court in the next term. In that case, a New York resident/citizen was arrested and fined for owning a set of nunchakus (or, "chukka sticks") in violation of New York law prohibiting the ownership of arms. Under current New York law, nunchakus are considered arms and thus fits the state's 2nd amendment prohibitions. Moreover, under the 1873 Slaughter-house cases and the Cruikshank case, the 2nd amendment is not incorporated into the states and local governments and therefore, New York's prohibition of owning arms includes the prohibition to own nunchakus.

Here's the problem. DC v. Heller, the seminal Supreme Court's 2nd amendment decision, unambiguously pronounced last year that the right to bear arms is an individual fundamental right, on the same level as free speech for instance. This necessarily means that all states and local governments must comply and respect the right, unless the state's restriction can survive strict scrutiny, which historically-speaking is near impossible. The 2nd circuit panel in Maloney, which included Judge Sotomayor, concluded that 1) the 2nd amendment does not apply to the state or local governments (according to Slaughterhouse and Cruikshank) and 2) that the right to bear arms is not fundamental and therefore the states only have to come up with a rational basis for the restriction to bear arms, as opposed to surmounting the strict scrutiny standard which automatically presumes the state restriction is unconstitutional. The court of course ruled that the state did in fact have a rational basis for the restriction and upheld the New York law. Essentially, Judge Sotomayor and her panel colleagues completely ignored Heller's clear pronouncement that the right to bear arms is a fundamental constitutional right deserving of the strict scrutiny standard and mooting the question of whether the 2nd amendment is incorporated into the states.

Interestingly, there are two circuit cases currently pending that directly concern both issues in Maloney. A case in the 5th circuit, Bledsoe v. U.S., concerns the issue of whether the right to bear arms is indeed fundamental, a challenge thats likely to fall on deaf ears due to the clarity of Heller. There's another case in the 7th circuit, NRA v. Chicago, where the NRA is directly challenging the Slaughter-house cases and Cruikshank's pronouncement that the 2nd amendment, or more generally the Bill of Rights, are not incorporated into state and local governments. Its reasonable to assume that the Supreme Court decided to review Maloney in order to dispose of both of these critical 2nd amendment issues, which in turn would dispose of Bledsoe, NRA, and Maloney, all at the same time. (The ruling could also overrule Slaugherhouse and Cruikshank, a very welcome proposition in my opinon).

Here's my prediction for Maloney: it's hard to imagine that the Supreme Court will reverse itself so quickly after Heller. Thus, I think the Court will affirm Heller and rule that the right is indeed fundamental. The State of New York will have to show that its restriction on owning nunchakus has a "compelling state interest" (as opposed to simply a rational basis) and that the restriction is narrowly tailored. I highly doubt that New York will be able to surmount this high standard of review since there's an automatic presumption that the restriction is unconstitutional. Additionally, nunchakus are usually used to practice martial arts (how many assaults/murders have you heard of where nunchakus were used?) and the self-defense justifications for owning and bearing arms generally are compelling reasons that run against the State's compelling interest in curbing arms ownership by its citizens. So if the State fails to meet its burden, which I predict it will, the Court will then rule that the State law abridging the 2nd amendment is unconstitutional, reversing Sotomayor's ruling in Maloney. Moreover, given the incrementalist approach of the current Supreme Court, it's not unreasonable to predict that the Court may "prudentially" punt on the constitutional issue of whether Slaughterhouse and Cruikshank were rightly decided.

At any rate, it's an exciting, and in some ways precarious, time for the 2nd amendment. Its founding integrity is far from certain.

American Confucius