Gun Rights Groups Are Wary Of Sotomayor

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Second Amendment advocates are responding warily to President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.

Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms, said on Wednesday that "Judge Sotomayor's position on the Second Amendment is a clear signal that Mr. Obama's claim that he supports gun rights is nothing but lip service."

Dave Kopel of the free-market Independence Institute predicts that "Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms." And Ken Blackwell of the Family Research Council believes her nomination amounts to "a declaration of war against America's gun owners."

The difficulty in evaluating Sotomayor's views on the Second Amendment right to keep and bear arms is the lack of definitive statements. No old law review articles advocating a Scalia-esque originalist approach have been unearthed; no speeches to the Brady Campaign calling for nationwide gun confiscation have surfaced.

A handful of Sotomayor's Second Circuit decisions, however, have.

In a 2004 criminal case, U.S. v. Sanchez-Villar, a three-judge panel that included Sotomayor wrote that "the right to possess a gun is clearly not a fundamental right."

Another case involved a fellow named James Maloney who was arrested in Port Washington, N.Y. for possessing a nunchaku -- typically sticks connected by rope or chain -- in his home. Maloney claimed that the Second Amendment rendered the state law banning nunchakus unconstitutional.

A three-judge panel including Sotomayor unanimously rejected his claim in January 2009, ruling that the Second Amendment "imposes a limitation on only federal, not state, legislative efforts." All members of the panel agreed with this sentiment, but because the opinion was unsigned, it's not clear who wrote it.

The trouble with that line of reasoning is that it relies on a 1886 case called Presser v. Illinois, which did in fact say the Second Amendment "is a limitation only upon the power of Congress and the national government, and not upon that of the state." But that was before a long line of subsequent U.S. Supreme Court rulings that applied the Bill of Rights to state governments; the concept is known as the "incorporation doctrine."

(And, besides, even in Presser, the Supreme Court went out of its way to note "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms.")

That has left gun rights advocates feeling a bit like the decision from Sotomayor's panel this year cherry-picked cases to reach a desired result -- instead of trying to interpret the law fairly. "The Sotomayor per curiam opinion ignores Due Process incorporation, even though any serious analysis of whether the Fourteenth Amendment makes the Second Amendment enforceable against the states would have to address the issue," Kopel says.

By contrast, the Ninth Circuit, by some counts the most liberal in the nation, ruled in April that the Second Amendment does apply to state laws. Meanwhile, Maloney, the defendant in the New York case, is appealing his loss to the U.S. Supreme Court, and the Seventh Circuit heard oral arguments this week in a related case.

Something with a name like "incorporation doctrine" may sound like an obscure topic only a law professor could love, but it's really not. These disputes will decide whether or not states and municipalities can legally disarm their residents, or whether the Second Amendment right the Supreme Court recognized last year in D.C. v. Heller applies to state and federal laws equally.

In some sense, if Sotomayor holds the same views as the man she's been selected to succeed -- retiring justice David Souter -- not much will change in terms of Second Amendment jurisprudence. Souter disagreed with Heller's 5-4 majority opinion, signing on to a dissent that said: "The majority's decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems."

But based on Candidate Obama's remarks last year, gun owners may have hoped for more. Mr. Obama's campaign platform said he "believes the Second Amendment creates an individual right, and he respects the constitutional rights of Americans to bear arms."

Souter rejected the idea of the Second Amendment protecting an individual right; in her 2004 joint opinion, so did Sotomayor. During confirmation hearings, expect pro-gun senators to ask the judge if she agrees more with her predecessor or the stated views of the president who nominated her.





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    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.