Watch CBSN Live

Conservatives Back Sotomayor On Gun Rights

(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?

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.

View CBS News In