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Sotomayor and Handguns

Q: Has Sotomayor written that states have the power to ban handguns?

A: A three-judge panel that included Sotomayor issued an unsigned decision saying that the Second Amendment does not apply to states, therefore states can regulate and ban weapons.


A panel of the 2nd U.S. Circuit Court of Appeals ruled last year, in an unsigned opinion, that a New York state law banning the possession of nunchuks (also known as a nunchaku or chuka stick) was not unconstitutional under the Second Amendment. Sonia Sotomayor was one of the three judges on the panel. While we can’t say that she has written that the Second Amendment doesn’t apply to the states, since we don’t know which of the judges wrote the opinion last January in Maloney v. Cuomo, we can say that she agreed with that statement:

Maloney v. Cuomo: It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”) …

Whether the Bill of Rights‘ prohibition on infringing "the right of the people to keep and bear Arms" applies just to the federal government, or to state and local governments as well, has been a subject of hot debate, particularly since the Supreme Court’s decision last year in District of Columbia v. Heller. In that case, the conservative majority of the Court said the Second Amendment confers an individual right to have a gun in one’s home for self-defense and struck down the city’s ban on possession of handguns. But the justices didn’t get to the question of whether states and localities are or are not covered by the Second Amendment since D.C. is considered a unit of the federal government.

The 2nd Circuit’s decision is at odds with a decision handed down just last month by another set of appellate judges, the 9th U.S. Circuit Court of Appeals. That court ruled in Nordyke v. King that the Second Amendment does apply to states and localities, by virtue of the 14th Amendment, which the Supreme Court has interpreted as applying most of the provisions of the Bill of Rights to state and local governments. That sort of conflict in the circuits often results in a Supreme Court hearing to clarify the law, although Court expert Lyle Denniston points out that the different timing of the two cases in the pipeline may not lend them to that sort of resolution.

If the Maloney case does come before the Supreme Court, Sotomayor would almost certainly recuse herself from participating. But there are other gun cases percolating through the system, including one in which the National Rifle Association is seeking an explicit ruling in the 7th Circuit that the right to bear arms applies to state and local governments.

Denniston also makes the point that putting Sotomayor on the Court likely won’t change the outcome of Second Amendment cases. Justice David Souter, whom she would replace, dissented in the Heller case, disagreeing that there is a constitutional right to own and use firearms for private purposes. So as far as gun-rights advocates are concerned, Sotomayor’s presence on the bench, combined with Souter’s absence, is likely to be a wash.

–Viveca Novak

Update, June 3: We wrote above that the National Rifle Association was hoping for a ruling from the 7th U.S. Circuit Court of Appeals that the Second Amendment applies to state and local governments. On June 2, however, the 7th Circuit ruled the other way, saying in National Rifle Association v. Chicago that Supreme Court precedent was clearly in opposition to the NRA’s argument. The three judges who issued the unanimous ruling — thereby agreeing with Sotomayor and the rest of her 2nd Circuit panel in Maloney v. Cuomo — included two of the leading lights of conservative jurisprudence, Richard Posner and Frank Easterbrook.

Update, June 5: In response to the ruling by the 7th Circuit in Chicago, the NRA has filed a petition asking the Supreme Court to hear the case to resolve one question:

NRA cert petition: Question presented: Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Whether Sotomayor, if she is confirmed to the court, would hear the case or recuse herself is unclear.


Maloney v. Cuomo, No. 07-0581-cv. 2d Cir., 28 Jan 2009.

District of Columbia v. Heller. No. 07-290. U.S. Supreme Court, 26 Jun 2008.

Nordyke v. King, No. 07-15763. 9th Cir., 20 Apr 2009.

Denniston, Lyle. "Sotomayor and the Second Amendment," Scotusblog. 27 May 2009.

NRA v. Chicago, Complaint for Declaratory Judgment and Injunctive Relief. United States District Court for the Northern District of Illinois, Eastern Division.  27 June 2008.