The Second Amendment

Judge Sotomayor faithfully follows the law in cases concerning the Second Amendment. In her few cases in this area, she has joined unanimous opinions that carefully followed Supreme Court precedent.

Last year, the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the Second Amendment protects an individual right to keep and bear arms. The Heller case addressed the issue of federal restrictions on this right, expressly leaving open the question of whether the Second Amendment is incorporated against the states. Judge Sotomayor has participated in two Second Amendment cases—one decided prior to Heller and one decided after Heller. In both cases, Judge Sotomayor and the other judges on those panels acted as Supreme Court precedent required.

In Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), the case decided after Heller, the Second Circuit addressed a state law restriction. A unanimous panel – including Judge Sotomayor – acknowledged that Heller established an individual right to keep and bear arms. The panel also recognized – just as Justice Scalia did for a majority of the Supreme Court – that Heller did not change long-settled Supreme Court precedent that the Second Amendment applied only to federal restrictions on the right to keep and bear arms. The Second Circuit therefore followed Supreme Court precedent to uphold the state law. Two renowned conservative jurists, Judges Posner and Easterbrook of the Seventh Circuit Court of Appeals, subsequently decided a similar case in the same way as the Second Circuit panel had in Maloney – they also refused to extend the Heller decision to the states. In National Rifle Association v. City of Chicago, 2009 WL 1515443 (7th Cir. 2009), Judge Easterbrook’s opinion states that the court “agree[s] with Maloney,” because Heller addressed only the question of the Second Amendment’s application to federal regulations.

In United States v. Sanchez-Villar, 2004 WL 962938 (2d Cir. 2004), a Second Circuit case that predates Heller, Judge Sotomayor joined a unanimous opinion rejecting a Second Amendment challenge brought by a defendant who was convicted of being an illegal alien in possession of a firearm. The decision was clearly controlled by pre- Heller Supreme Court precedent.

Judge Sotomayor’s record on the Second Amendment is one that reflects careful consideration of the precise issues before her and respect for Supreme Court precedent. As in all other areas, she practices judicial restraint and follows the law.