Sotomayor Pressed On Gun Rights, Second Amendment

The twin questions of whether Americans have the constitutional right to keep and bear arms, and precisely what Judge Sonia Sotomayor thinks of that proposition, have surfaced this week during her U.S. Senate confirmation hearings.

Both questions are timely. In two separate cases before the 2nd Circuit, Sotomayor took a narrow view of the Second Amendment right of self-defense, and her more recent decision is likely to end up before the U.S. Supreme Court later this year.

That case is called Maloney v. Rice, and it addresses whether the Second Amendment can be invoked to strike down restrictive laws against weapons that individual states have enacted.

A three-judge panel including Sotomayor unanimously rejected that view 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.

"As a result of this very permissive legal standard -- and it is permissive -- doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?" asked Sen. Orrin Hatch, the Utah Republican, during Tuesday's meeting of the Senate Judiciary committee.

During the exchange, which bounced back and forth for a few minutes, Sotomayor said: "Well, the government can remedy a social problem that it is identifying or a difficulty it's identifying (as long as the law) reasonably seeks to achieve that result. In the end, it can't be arbitrary and capricious." (In other words, many anti-gun laws enacted by states might end up being perfectly constitutional, as long as they weren't "arbitrary and capricious.")

Whether Sotomayor's three-judge panel got it right is still being debated even among writers who are generally pro-Second Amendment.'s Jacob Sullum thinks it's defensible, while George Mason University constitutional law professor Nelson Lund believes she "completely ignored" precedents and noted the Supreme Court said such analysis is "required."

The Maloney case is one of a number of legal attempts to protect gun rights that have arisen after a landmark Supreme Court case last year. In that case, D.C. v. Heller, the justices ruled that the Second Amendment shields an individual right and Washington, D.C.'s gun ban was unconstitutional. But the justices explicitly chose to wait until a future case to decide how state laws would be affected.

Lawyers for Maloney filed an appeal -- also known as a petition for certiorari -- to the Supreme Court on June 26. (The second case is also being appealed from the 7th Circuit, and the third may be heard a second time by the full 9th Circuit before it heads to the high court. Unlike the other two circuits, the 9th Circuit concluded that the Second Amendment does apply to the states.)

In some sense, if Sotomayor adheres to the identical 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 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 because last year's majority was so slender, Sotomayor's vote on the Second Amendment and the states might matter more than usual. Which prompted Democrats to attempt to portray her rulings as entirely consistent with Supreme Court precedent, while Republicans tried to extract a promise that she would not participate in the current round of post-Heller cases if confirmed.

On Tuesday, Sotomayor said she would recuse herself if ruling -- effectively on whether to overrule herself -- only in the Maloney case.

"My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored," she said. "I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate."

She did not agree, however, to recuse herself if the Supreme Court hears another case involving very similar material from the 7th or 9th circuits. "What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself," she said. "I would just note that many legal issues, once they come before the court, present a different series of questions than one addresses at the circuit court."

A few minutes later, Sen. Jon Kyl, an Arizona Republican, quoted a federal law that says: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." He also noted that Chief Justice John Roberts said he would recuse himself from matters in which he participated while a judge on the Court of Appeals.

What if the 2nd, 7th, and 9th Circuit cases were combined before the Supreme Court, Kyl asked. Sotomayor replied: "It's impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I would have to wait to see what happens."

The judge also stressed that she understood "how important the right to bear arms is to many, many Americans" and said some of her friends are gun owners and hunters.

Without unequivocal statements from Sotomayor about the scope of the Second Amendment, the outcome of Tuesday's Judiciary Committee hearing is unlikely to change any minds. It won't convince gun rights groups to waver in their opposition to her nomination; nor, on the other hand, is it likely to imperil her chances in a Senate controlled by Democrats.

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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.