In Maloney v. Cuomo, Sotomayor joined a three-judge panel concluding that the Second Amendment right to bear arms does not apply to the states through the Fourteenth Amendment. She also argued that the right to bear arms is not a “fundamental right.”

In a very brief opinion, she cites Presser v. Illinois as the basis for its claim that “it is settled law … that the Second Amendment applies only to limitations the federal government seeks to impose on [the right to bear arms].” Her panel overlooks the fact that Presser was decided before the courts began incorporating the Bill of Rights through the Fourteenth Amendment, which the Supreme Court in District of Columbia v. Heller describes as “the sort of Fourteenth Amendment inquiry required by our later cases.”

Sotomayor’s panel also stated in a short 11-word conclusion that statutes restricting possession of weapons do not implicate a fundamental right. No court has suggested this lack of a fundamental right since the Supreme Court affirmed an individual Second Amendment right in Heller. Sotomayor is clearly using a political agenda to guide her, even though she claims she is only following precedent.

Second Amendment scholar Nelson Lund examines Sotomayor’s flimsy position. This does not even address the historical writings of the founders and their intent with the 2^nd Amendment. But even putting that kind of irrefutable evidence aside, Sotomayor is wrong in her decision as Lund at RealClearPolitics writes:

It is not true, however, that Judge Sotomayor was faithfully following precedent. The Supreme Court has never said that the Due Process Clause does not “incorporate” the right to keep and bear arms. That Court has never said that the nineteenth century Privileges or Immunities Clause cases foreclose due process analysis. Nor has it ever said that the lower courts are supposed to “wait” for the Supreme Court to rule on due process incorporation. The Supreme Court’s twentieth century incorporation cases are the most relevant precedents, and Judge Sotomayor completely ignored them.

Two months ago, the Ninth Circuit performed a careful analysis of those precedents, and concluded that the right to keep and bear arms is indeed incorporated. Nor was this the first court to realize that lower courts are required to analyze and apply those precedents. A number of circuit courts have done so with respect to other individual rights, and none of them has ever been criticized by the Supreme Court.

One illuminating example, from Judge Sotomayor’s own Second Circuit, is a double jeopardy opinion written by then-Judge Thurgood Marshall. The Supreme Court later cited his opinion favorably, but Judge Sotomayor apparently decided that she didn’t even need to consider the precedent he set, let alone the relevant Supreme Court cases.

President Obama has said that he wants judges whose “deepest values” will help them decide the 5 percent cases that are truly difficult. Judge Sotomayor’s deepest values apparently caused her to ignore the precedents that would have vindicated the right of Americans to have the tools they need to protect themselves from violent criminals. Can anyone expect that to change if she is confirmed to the Supreme Court?

Sotomayor ignores the most powerful precedents while casually brushing aside the seriousness of the issue. Her dismissive treatment of a 2^nd Amendment case shows her to be driven by partisan politics rather than respect for constitutionally protected rights.