Posted on 06/02/2009 4:59:39 PM PDT by lewisglad
An opinion issued earlier this year by a panel on which Sonia Sotomayor served has gun rights advocates uneasy about how she might rule on the issue of whether the Second Amendment applies to states and localities.
In January, Sotomayor was among three judges on the U.S. Court of Appeals for the 2nd Circuit who issued a short unsigned opinion rejecting a defendant’s claim that a New York state ban on nunchakus, a martial arts weapon, violated his constitutional right to keep and bear arms.
The opinion in the case, Maloney v. Cuomo, relied on an 1896 Supreme Court decision for the proposition that “The Second Amendment applies only to limitations the federal government seeks to impose on this right,” rather than to limitations imposed by a state or local government.
In the days since Sotomayor’s nomination to the Supreme Court, the opinion has become fodder for her conservative critics. Curt Levey, executive director of the Committee for Justice, wrote, “Now every red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he’s supporting a nominee who thinks those constituents don’t have Second Amendment rights.”
Asked Tuesday about the case, Jeff Sessions of Alabama, the Senate Judiciary Committee’s top Republican, said, “I think it’s something that will have to be looked at. I, frankly, have not studied that opinion, and I look forward to doing that.”
At stake is whether the Supreme Court will extend its landmark 5-4 decision holding that the Second Amendment established an individual right to bear arms. That 2008 ruling struck down a Washington, D.C. law banning handguns, rejecting claims by the D.C. law’s supporters that the Second Amendment applied only to organized militias.
However, because that case involved a unique jurisdiction — the District of Columbia — it did not address the question of whether that individual right would apply not just at the federal level, but would also limit gun regulations by states and localities. Justice David H. Souter , whom Sotomayor would replace, sided with the minority in that case.
The three circuit courts that have subsequently ruled on the question of whether the Second Amendment is “incorporated” against lower levels of government have come to different conclusions. The 9th Circuit ruled that the Second Amendment is incorporated in an opinion released in April, though it ultimately rejected the challenge to a ban on firearms on county property. But Tuesday, a three-judge panel on the 7th Circuit unanimously sided with the position taken by Sotomayor and her colleagues. The panel of 7th Circuit judges, which included noted conservatives Richard Posner and Frank Easterbrook, held the Second Amendment does not apply to state or local regulations under current law and any change would have to come from the Supreme Court.
Such a split among the circuits makes it more likely that the Supreme Court will vote to hear one of the appeals in those cases, says Sanford Levinson, a University of Texas law professor.
Randy Barnett, a Georgetown University law professor, said the decisions by the 2nd and 7th circuits aren’t surprising given the general assumption that only the Supreme Court can overturn its existing precedent and doesn’t necessarily reveal how Sotomayor might rule on the merits in a gun control case. “They don’t reach that issue,” Barnett said.
Defenders say Sotomayor was simply doing just what conservatives say justices should do: follow precedent.
“Sotomayor followed existing law,” says Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.
But that doesn’t ease the concerns of gun rights groups. Andrew Arulandam, a spokesman for the National Rifle Association, said, “we have serious concerns” about Sotomayor’s potential stance on gun rights.
“One thing we’re going to insist upon is that her position on the Second Amendment is clear at these confirmation hearings,” Arulandam said.
It is absolutely ridiculous to maintain that the Bill Of Rights does not limit state and local government. This is simply an attempt to make an end run around the Constitution.
Which would be fine except that 99.44% of what's existing law shouldn't be.
Existing law for centuries has been that all free persons have the right to keep and bear any and all such artifacts as would be suitable for use as arms in a well-functioning militia. Some court precedents may claim otherwise, but nothing gives courts authority over any cases other than those explicitly put before them. Stare decisis should be used when the Constitution and statutes are ambiguous, and a similiar ambiguous situation has arisen previously. It should never, however, take precedence over the body of law upon which it is supposed to be based.
Bork the Bitch!
There’s no real need for questions; she doesn’t believe in the Second Amendment. End of story.
Oh, she believes in it... She just happens to believe in a version where "the people" means "the National Guard", "arms" means "not icky black guns", and "shall not be infringed" means "thoroughly regulated".
Yes. Right. Like I said, she doesn’t believe in the Second Amendment.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.