Sotomayor and the Second Amendment | Robert A. Levy | Cato Institute: Commentary

Sotomayor and the Second Amendment | Robert A. Levy | Cato Institute: Commentary: "Technically, the Maloney panel could not overrule a previous panel of the same court. In effect, Sotomayor's panel said, 'Maybe Presser is still good law, or maybe Presser has been superseded by the Supreme Court's later incorporation cases. We three judges cannot make that decision – first, because another panel of this court has already followed Presser and, second, because the Supreme Court and not an appellate court must say when earlier Supreme Court cases are superseded.'"

"Which panel got it right? Most likely, it won't matter – because the Supreme Court will review one or more of the three Second Amendment cases; and precedent will not bind the high Court. We should have an answer shortly. Either way, the decision of the Second Circuit panel, including Judge Sotomayor, was well within the bounds of responsible judging. Perhaps the Second and Seventh Circuits were correct. Perhaps the Ninth Circuit panel had the better of the argument. It's a close call –not the kind of call on which confirmations ought to turn (or even focus).

Finally, some gun rights advocates criticize Sotomayor's Maloney opinion for stating that the right to nunchakus in the home is not a "fundamental right." But that statement had nothing to do with the Second Amendment. Instead, it concerned a different claim by the plaintiff under a doctrine known as substantive due process, which pertains to unenumerated constitutional rights, not those expressly listed in the Bill of Rights. Unless an unenumerated right is "fundamental," the courts will be highly deferential to legislative restrictions. Only if the right is "necessary to [our] regime of ordered liberty" or "deeply rooted in this Nation's history and tradition" will a right be deemed fundamental. The Sotomayor panel decided that the statute in question, regarding the unenumerated right to a nunchaku, not the enumerated right to keep and bear arms, did not meet those criteria."