Sotomayor’s Activist Cases: The 11-Word Dismissal of the Second Amendment

Robert Alt /

To correspond with Judge Sotomayor’s confirmation hearings next week, I am launching a new daily feature: highlighting a key activist case and, separately, a notable quote for each day. In light of the renewed interest in Sotomayor’s Second Amendment jurisprudence, it is appropriate to begin with Maloney v. Cuomo.

James Maloney was arrested at his New York home and charged with possession of a weapon—in this case, a chuka stick—in violation of New York law. He challenged the weapons prohibition as violating his rights under the Second and Fourteenth Amendments. A three-judge panel on which Judge Sotomayor sat disposed of his claims with brevity—with great brevity. First, after acknowledging that the Supreme Court’s decision in DC v. Heller affirmed that, yes, the Second Amendment does indeed guarantee an individual right, the panel found that the Second Amendment nonetheless did not apply to the states—a decision which would permit complete weapons bans in a majority of the country. Why, you may ask? Because of the Supreme Court’s 1886 decision in Presser v. Illinois. At this point, liberal Sotomayor defenders who have spent their lives judging cases only by whether they liked the results begin crowing about how this decision is a paradigm of judicial restraint. Which would be fine if it were true, but it’s not. (more…)