As anticipated, based on the stirrings coming from various kooky korners (collected in my earlier diary on this topic), the right intends to have a go at the Sotomayor nomination on the grounds that she is a stalking horse through which President Obama intends to implement his hidden agenda to -- (shudder) -- "take our guns away."
I know, it's crazy, but it's probably not going away. Here's how the case was articulated today by John Lott, editorial writer at the Washington Times, and a brief explanation why his argument leaves a Lott to be desired -- including coherence.
As explained in my prior diary, Judge Sotomayor sat on a Second Circuit panel of judges which held that the Supreme Court's Second Amendment case striking down D.C.'s gun control law (the Heller case) did not require the invalidation of a N.Y. state law prohibiting possession of martial arts weapons. Just as this Second Circuit ruling was starting to fan the flames on the right wing, the argument took a big hit. Namely, a panel of judges on the Seventh Circuit in Chicago, which included the uber-conservative Judges Easterbrook and Posner, came to the exact same conclusion as Judge Sotomayor's panel, holding (in a big test case brought by the NRA) that Chicago's stringent gun control laws could stand, even after the Heller decision.
Trying to salvage something, the Washington Times believes that what the Second Circuit said, in addition to its barebones holding in the case, shows Judge Sotomayor's real attitude to gun ownership, and specifically, shows that she "tried to eviscerate the recent Supreme Court decision that had struck down the District's gun ban even for federal laws." What did she say? How could she "eviscerate" the Supreme Court? Here's the Times' spin:
To her panel, the Second Amendment would not block any gun-control laws as long as the politicians passing the laws thought the weapon was "designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill." With that interpretation, the Supreme Court never could have struck down the D.C. gun ban, let alone any other gun-control law.
There are two answers to this nonsense:
- The words seized on by the Times editorial did not deal with the Second Amendment claim, but the claim that the state prohibition violated the Fourteenth Amendment in that it lacked any rational basis. It was this claim that the Sotomayor panel rejected, because the N.Y. legislature had found that the weapon there in issue (nunchaku sticks) had no purpose other than to maim or kill, and that was a sufficient reason to ban them. This holding related solely to the rejection of the Fourteenth Amendment claim, had nothing to do with the Second Amendment, and thus could in no way be interpreted as an attempt to "eviscerate" any Second Amendment rights.
- The Seventh Circuit went much, much further than the Second in suggesting that neither Heller nor the Second Amendment precluded reasonable state or municipal limitations on gun ownership/possession. It pointed out that
the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule....Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.
Thus, the very conservative judges of the Seventh Circuit indicated that, while it is an issue to be ultimately decided by the Supreme Court, its view is that the principle of "federalism," in which "local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule." Thus, the Seventh Circuit would clearly permit states to enact restrictions on gun ownership that are reasonable and consistent with legislatures' judgments as to, for example, the benefits to public safety of such laws.
As I said, the fringe right will have to do better than this sad attempt at deception and obfuscation. Some folks just have to try to make chicken salad out of a Lott of chickenshit.