Senate Democrats

Sotomayor: Nominee Has Followed Supreme Court Precedent On Second Amendment

Correcting The Record: Judge Sotomayor Has Consistently Followed Supreme Court Precedent When Interpreting the Second Amendment

RHETORIC:  Some Republicans have suggested that Judge Sotomayor would limit individuals’ Second Amendment right to own guns and that she has failed to answer questions on this issue.

Judge Sotomayor made clear today that she has faithfully applied the Heller case and would approach future cases applying the Second Amendment to the states with an open mind.

JUDGE SOTOMAYOR:  Today, Judge Sotomayor stated that she has followed precedent on Second Amendment cases, as she was obligated to do on the Second Circuit, but when asked if she would be open to the assertion that Second Amendment creates an individual right applicable to the states as well as to the federal government, she said:  “I have an open mind on that question. . . . I would not prejudge any question that came before me if I was a justice on the Supreme Court.”

In her 17 years on the bench, Judge Sotomayor has faithfully followed Supreme Court precedent and shown judicial restraint when interpreting the Second Amendment.

REALITY:  In 2008, Judge Sotomayor joined a unanimous panel in Maloney v. Cuomo that recognized an individual has a constitutional right to keep and bear arms consistent with the Supreme Court’s new precedent in Heller.  The same panel also recognized that Justice Scalia’s opinion in Heller expressly left in place long-settled Supreme Court precedent making clear that the Second Amendment applied only to federal — not state — restrictions on the right to keep and bear arms.

REALITY:  In declining to strike down the state law in Maloney, Judge Sotomayor emphasized that this result was dictated by precedent.  The opinion makes clear that “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”

REALITY:  Judge Sotomayor’s decision in Maloney has been supported by some of the most renowned conservative jurists in the country.  Judges Posner and Easterbrook, both Seventh Circuit Judges and respected conservatives, agreed with Judge Sotomayor, citing to Maloney and similarly refusing to extend the Heller decisions to the states in National Rifle Association v. City of Chicago.

  In the 2004 case of United States v. Sanchez-Villar, Judge Sotomayor joined a unanimous panel in rejecting a Second Amendment challenge from a defendant convicted of an illegal firearms offense.  This case predated the Heller decision and was clearly controlled by pre-Heller Supreme Court precedent.