Thursday, July 23, 2009

McIntosh Repeat Errors About Sotomayor's Judicial History

David McIntosh has created of number of errors. I made some coffee and now to get to work.

In today’s Wall Street Journal McIntosh writes “Vote No On Sotomayor.” He attempts to assert facts that support his case but his claims are wrong.Unlike Mr. McIntosh, I am not a lawyer but I can read. To be fair these errors have been made everywhere.

As I said I am not a lawyer so if this wrong or boring I apologize (I hope I am not wrong).

Mr. McIntosh writes:

“Judge Sotomayor is almost certainly a vote in favor of restricting Second Amendment protections and property rights, upholding racial preferences, and providing unlimited abortion on demand.”

From this premise he cites rulings she has made while on the Court of Appeals.

According to McIntosh, as Justice, Sotomayor will certainly “vote in favor of restricting Second Amendment protections.” His first error is the reading of a Second Circuit decision on Maloney v. Cuomo (2009). Here McIntosh quotes the Second Circuit opinion, “the Second Amendment applies only to limitations the federal government seeks to impose on this right.” In Maloney v. Cuomo the court considered a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms.

The problem with McIntosh’s complaint is that it does not support the idea that legal precedent and rule of law. His argument is that in ruling on Maloney, Sotomayor disregarded the Supreme Courts decision in District of Columbia v. Heller. Unfortunately a close reading of Heller shows that the ruling is not explicitly applicable to Maloney. Justice Scalia’s majority opinion in Heller states,

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ 478 F. 3d, at 400, would fail constitutional muster.”

The first problem I find is that a chukka stick is not a handgun therefore not the weapon “most preferred” “to keep and use for protection”. It is also not in the “class or arms” considered in Heller. As written in the Maloney decision Heller “did not present the question of whether the Second Amendment applies to the states.” Knowing this and the importance of rule of law and precedent there seems no way the Second Circuit could have ruled the way McIntosh would have preferred without being the horrible “judicial activists.” Since Heller was not applicable the Second Circuit applied Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms.

McIntosh commits the same error as he cites Ricci v. DeStefano. McIntosh writes “a Second Circuit panel of judges, including Judge Sotomayor, upheld the city’s decision to disregard the results of a promotion examination because too few racial minorities passed.” But in reality, if McIntosh had read the decision he may have avoided his error. The Second Circuit upheld the case because they found:

“The remedy chosen here was decidedly less “race conscious” than the remedies in Kirkland and Bushey, because New Haven did not race-norm the scores, they simply decided to start over, to develop some new assessment mechanism with less disparate impact. Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of any evidence of discriminatory animus towards plaintiffs-under the reasoning of [Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir. 1999)], “nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation.... [T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

Again I’m not a lawyer but I can read. I agree with McIntosh that this sucks for the firefighters that did well on the first test but that is not the standard by which the law functions.

There are other problems with McIntosh’s latest attempt but I won’t don’t want to bore you with why Puerto Rican Legal Defense and Education Fund aren't crazy abortionists.

Note: There has been a correction from the original posting. I attributed the essay Vote No On Sotomayor to Karl Rove. The essay was written by David McIntosh. Apologies.

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