Conservatives Back Sotomayor On Gun Rights

By: Andrew Cohen
Topics: Sonia Sotomayor

(AP Photo/Pablo Martinez Monsivais)

Judge Sonia Sotomayor's bid for Supreme Court confirmation got a major boost Tuesday from two unexpected sources. The 7th U.S. Circuit Court of Appeals—led by arch conservatives Richard Posner and Frank Easterbrook—declared in a 3-0 panel decision that the Second Amendment does not apply to state gun regulations, even in the wake of the big gun-rights victory at the Supreme Court last spring. It's a strong legal position that is the same as the one Judge Sotomayor took when the same issue was presented to her and her 2nd U.S. Circuit Court of Appeals colleagues a few months back.

The 7th Circuit ruling gives nominee Sotomayor grand legal cover as she wends her way through the corridors of the Senate on her way to a confirmation hearing (in September, I bet, not in July). If she is pressed for her views on gun rights by conservative senators, or if the National Rifle Association tries to portray her as soft on gun-control, she can point to right-wing legal titans Posner and Easterbrook and say: "If I am wrong, then they are wrong, too" or perhaps, more appropriately, she can say: "I was right about the constitutional limits on last term's big gun case and that's been proven by the fact that Posner and Easterbrook followed me."

The decision also makes it much more likely that the Supreme Court will have to accept another gun-rights case to decide whether the federal right is and ought to be incorporated down onto a state level. The Justices specifically refused to address that result in District of Columbia v. Heller (check out Footnote 23 if you don't believe me) and declared that their existing precedent does not recognize such a right. The 2nd Circuit and now the 7th Circuit have refused to recognize such a right without express Supreme Court authority. The 9th Circuit, however, did recognize such a right. The Court now will have to broker that dispute before it gets worse (as more federal circuits chime in). And guess who is likely to be on the Court when that happens? Right. Justice Sotomayor!

There are interesting political ramifications as well. Justice David H. Souter, whose spot on the Court Judge Sotomayor would take, dissented in the Heller case. He does not believe that there is an individual, constitutional right to bear arms under the Second Amendment. So he didn't have to decide whether such a right would or should be able to trump state regulations on guns. Even if gun-rights advocates are right and Judge Sotomayor is somehow a foe of the Second Amendment, remember, Heller would not have come out differently.

But we don't really know how the judge feels about the merits of the Second Amendment debate or the smaller conflict over whether any such right would bar both federal and state restrictions. Judge Sotomayor was expressly bound - in her ruling—by Supreme Court precedent both when she assumed an individual gun right and then when she said she would not expand it to include the states. The point all three judges—Sotomayor, Posner and Easterbrook—are making is that any such extension of gun rights has to come from the High Court and not from the intermediate panels. That doesn't sound like a judge "making policy" to me. Does it sound that way to you?

(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.

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by seataffer June 16, 2009 12:14 PM EDT: mr man: Germany established gun control in 1938 and from 1939 to 1945, a total of 13 million Jews and others who were unable to defend themselves were rounded up and exterminated.

.. in jan 1939 there were only about 400,000 jews in germany, & these were the only oppressed group en masse affected by hitler's guncontrol policies;
.. jews outside germany could buy guns (excepting stalin's russia), & thus 'defend' themselves.
.. in fact, most all of those 13 million dead people from wwII, were not affected by hitler's german guncontrol laws.
.. hitler's guncontrol laws actually loosened firearm restrictions for german people, his ruthless rules of conquest regarding firearms should not be confused with guncontrol as it is known today.

mr man wrote: 12 months after Australia forced gun owners to surrender [firearms]... Homicides are up 3.2%

.. that might've been one year, but subsequent years the homicide rate fell also... fluctuates mildly, no great surprise.

mr man: Armed robberies are up 44% -yes 44%

.. no they weren't up 44% overall, you mislead; they might've gone up 44% in one territory, while the overall rate wasn't much changed (might've gone up 5%, can't remember exactly). But you cherry pick violent crimes which went up, is all, most other vcrimes declined.

mr man: In the state of Victoria alone , homicides with firearms are now up 300%...

.. this is mr man's biggest lie with statistics (of which he is expert);
.. territory/province of victoria, the year before, had a grand total of 6 homicides (firearms qualifier uncertain iirc); the year after aussie gun buyback the victorian total rose to 19, which is actually only an increase of 200% not 300%, but readers can see the big LIE in mr man's claim, when that victorian grand total can occur in a big american city in one week.; Reply to this comment


by ken1dall June 4, 2009 2:08 PM EDT: Why must we fight the 2nd amendment right over and over again? Why is the left so fearful of an individual's right to protect himself from harm from both criminals and government? Have you not learned anything from history?; Reply to this comment


by mav547166 June 4, 2009 1:59 PM EDT: Conservative doesnt mean pro gun just like liberal doesnt meant pro choice. A state or city cannot ignore any part of the constitution whether they like it or not. We settled that question in 1865 so I suspect this will get thrown out just because.; Reply to this comment


by gunownerdan June 4, 2009 6:52 AM EDT: I am proud to say I've never voted for a Clinton or a Bush.
I didn't vote for McCain or Obama either!
And yes, I do vote.
But I just don't vote for the "lesser of two evils" like we are told to do our whole lives!
Unlike most Americans(unfortunately) I am capable of seeing through the lies and propaganda.
I choose my own candidate and am proud to be an INDEPENDENT.
After all, democrats and republicans didn't make America, independence did!; Reply to this comment


by labrat9999 June 3, 2009 7:34 PM EDT: caligula1--2008 ...Just love you gun toten' guys. I would bet most of you are in the gun dealing business and just like Enron want to scare people that the Big Bad Government is going to take your guns so you can cause panic buying...which you have done!! The ONLY people that would believe such trash are those morons that listen to you and Rush. The rest of us know better. And by the way, I have a gun and plenty of ammo and I voted for President Obama...AND I'm not at all worried about an HONEST PRESIDENT! Unlike you, that voted for George Bush and Cheney...but I can understand why you wouldn't trust Big Government or the President after these two!; Reply to this comment


by Wolf1944 June 3, 2009 6:05 PM EDT: The Texas Legislature recently considered a bill to allow students to carry guns on college campuses. It passed the Senate but died in the House.

The sound you hear is the academic community going, "Whew!"; Reply to this comment


by caligula1--2008 June 3, 2009 5:21 PM EDT: < Exactly why the republican't NRA fearmongering has increased demand for guns and ammo, thus sending prices through the roof and lessening supply. >

I bought in 2007 when I saw the way the elections were going to go, and in 2008 helped a friend start his own firearms and concealed carry class business (we have a show this weekend in fact).

Nothing tends to increase firearms in value more than actual or pending government legislation. No one with a brain believed Obama when he said he'd support "2nd amendment rights" because we know how narrowly he defines the 2nd amendment, because we know that his idea of "sane gun laws" would involve making about every current firearm design illegal and ALL modern firearms designs (as it is we can't get many weapons because of federal restrictions JUST again those particular items).

Modern meaning anything designed after about the late 19th century when the bolt action rifle was finally refined to the level of the American '03 Springfield, the German Mauser K98k, the French MAS36, the Italian Carcano, the Japanese T38, or the Russian Moison-Nagant. All of which were originally, by the way, designed for war, and all of which still can do a fair job of it, though modern arms are inarguably superior.

For instance, try to buy a Fabrique Nationale (Herstal, Belgium) made P90 Personal Defense Weapon (made to be carried by troops whose primary job is NOT combat instead of encumbering them with a full sized combat weapon), and you can FORGET IT.

You can buy a civilianized knockoff with degraded ammunition made by FNH (the American export arm of FN), but by then the form no longer follows the function, and all you have is an inferior varmint rifle. You don't even have access to LOAC compliant combat ammunition because Congress, in their vast wisdom, has DIRECTLY regulated what ammunition we can or can't have.

NOTE:

Since Congress is relatively restricted with respect to Constitutional power, generally by abusing the Revenue, Intrastate Commerce, and other Constitutional provisions in time of "emergency"?, as they started to in the early 20th Century to the point where in the early 21st they regulate the hell out of almost every aspect of daily life, a reversion to a STRICT Constitutionalist position would almost emasculate the regulatory power of Washington as we know it today.

Which is, by the way, a good thing, as it embraces maximal liberty, with the individual states themselves able to experiment within Constitutional limits with various forms and types of governance and rules. That increases liberty as it allows people to "vote with their feet" by leaving states that have laws they don't like for states they do and thus creating competition between the states themselves to create good governance.

?(manufacturing emergencies when necessary if certain regulations would be otherwise hard to pass).; Reply to this comment


by gunownerdan June 3, 2009 4:08 PM EDT: "Why does everything have to be conservative or liberal?"

Because we can't have the people start thinking for themselves all of a sudden.; Reply to this comment


by tazmjam June 3, 2009 2:11 PM EDT: Why does everything have to be conservative or liberal? Why does the MSM constantly perpetuate this simplistic view of people?s beliefs? I?m neither conservative nor liberal and I think Sotomayor, Posner, and Easterbrook are all wrong. I think people really need to consider what the writers of the constitution and bill of right had in mind. No I do not own a gun, nor do I want one in my home, but that is my choice.

The draftsman of Section 1 of the 14th Amendment, Rep. John Bingham, stated one of the reasons for the adoption of the Fourteenth Amendment was to make the Second Amendment enforceable against the States under the privileges and immunities clause, rather than the due process clause.
The 14th Amendment was written in part to prevent states from bans against black men owning guns.
Sen. Jacob Howard, who guided the 14th Amendment through the Senate, said the States could no longer infringe on the liberties the Bill of Rights had secured against federal violation; from now on they must respect the personal rights guaranteed and secured by the first eight Amendments.

No Free man shall ever be debarred the use of arms.
Thomas Jefferson; Reply to this comment


by gunownerdan June 3, 2009 1:49 PM EDT: seataffer,
Having the means and the ability to defend yourself from a violent attacker is everyone's basic right and always will be!; Reply to this comment