Fox News's Wallace, Bream misrepresented Heller to suggest Sotomayor engaged in "activism"

››› ››› JEREMY HOLDEN

Chris Wallace and Shannon Bream misrepresented the Supreme Court's decision in District of Columbia v. Heller in order to suggest that Sonia Sotomayor may have -- in Wallace's words -- been "making policy from the bench" in Maloney v. Cuomo.

On May 31, Fox News host Chris Wallace and Supreme Court correspondent Shannon Bream each misrepresented the Supreme Court's decision in District of Columbia v. Heller in order to suggest that Supreme Court nominee Sonia Sotomayor may have -- in Wallace's words -- been "making policy from the bench" in the 2nd Circuit case Maloney v. Cuomo. Wallace and Bream suggested that Sotomayor's position in Maloney was, as Bream put it, "in contrast to the Heller decision we got from the Supreme Court last year saying the Second Amendment gives individual gun rights." In fact, the 2nd Circuit -- in a per curiam opinion joined by Sotomayor and two of her colleagues -- specifically addressed Heller and said it didn't apply to Maloney, which involved the question of whether the Second Amendment applies to state governments. Indeed, as Lyle Denniston noted on SCOTUSblog, in Heller, the Supreme Court "did not settle whether the [Second] Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia."

Discussing the Maloney case on the May 31 edition of Fox Broadcasting Co.'s Fox News Sunday, Wallace claimed, "This year, Judge Sotomayor joined a ruling that it is settled law that the Second Amendment applies to federal restrictions on guns or weapons -- the right to bear arms -- but not on state laws. And she based this on an 1886 Supreme Court ruling, rather than the ruling that the Supreme Court made just last year upholding an individual right to bear arms." He went on to ask Sen. Lindsey Graham (R-SC), "[D]o you see a pattern, or do you see that as an instance of Judge Sotomayor making policy from the bench?" Likewise, during that day's edition of Fox News' America's News HQ, Bream asserted, "We know [Sotomayor] recently ruled from the 2nd Circuit bench that states can legislate gun control. You know, it's in contrast to the Heller decision we got from the Supreme Court last year saying the Second Amendment gives individual gun rights."

But the 2nd Circuit directly addressed the Heller decision in Maloney, stating in a per curiam opinion that Heller "did not present the question of whether the Second Amendment applies to the states" and therefore "does not invalidate th[e] longstanding principle" that it does not:

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008).

It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment "is a limitation only upon the power of congress and the national government, and not upon that of the state"); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we "must follow Presser" because "[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.'" Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment.

From the May 31 edition of Fox Broadcasting Co.'s Fox News Sunday:

WALLACE: Let me bring you another case, which may raise the issue of activism in trying to make policy from the bench. This year, Judge Sotomayor joined a ruling that it is settled law that the Second Amendment applies to federal restrictions on guns or weapons -- the right to bear arms -- but not on state laws. And she based this on an 1886 Supreme Court ruling, rather than the ruling that the Supreme Court made just last year upholding an individual right to bear arms.

Senator Graham, do you see a pattern --

GRAHAM: Yes.

WALLACE: -- or do you see that as an instance of Judge Sotomayor making policy from the bench?

GRAHAM: If the legislative law doesn't sit with her, she finds a way as a judge to get around it, in my opinion. When the Congress or the legislature comes up with a law that she doesn't like or feel comfortable with, she's looking for a way to get around that law rather than living within the confines of the way that law is written. That's activism at its core, and that case you just mentioned expresses that.

From the May 31 edition of Fox News' America's News HQ:

BREAM: OK, very quickly. One topic I want to touch on with her that some people say will bring a bit of a surprise -- this issue of gun control. We know she recently ruled from the 2nd Circuit bench that states can legislate gun control. You know, it's in contrast to the Heller decision we got from the Supreme Court last year saying the Second Amendment gives individual gun rights.

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