It looks like the inmates running the asylum may have their next line of attack against Sonia Sotomayor after the week-long spectacle of racism, misogyny, and hate -- next up? Sotomayor wants your nunchakus. Translation? She's coming for your guns:
In January, Sotomayor was among three judges on the U.S. Court of Appeals for the 2nd Circuit who issued a short unsigned opinion rejecting a defendant's claim that a New York state ban on nunchakus, a martial arts weapon, violated his constitutional right to keep and bear arms.
... Curt Levey, executive director of the Committee for Justice, wrote, "Now every red and purple state Democratic senator who considers voting for Sotomayor will be forced to explain to his constituents why he's supporting a nominee who thinks those constituents don't have Second Amendment rights."
... Andrew Arulandam, a spokesman for the National Rifle Association, said, "we have serious concerns" about Sotomayor's potential stance on gun rights.
Now you'd think the fact that the 2nd Circuits conclusion was the same as that of the 7th Circuit, where the decision was written by "one of the nation's leading conservative jurists, along with two Republican-appointed judges," would undercut any claims that Sotomayor is an "anti-gun radical," but as we've seen in the past week, facts aren't really an issue for the opposition.
Update: Adam B adds:
Here's what's going on: contrary to what you might have thought, not everything in the Bill of Rights applies against state and local governments. It's only through a haphazard process called "selective incorporation" that the Supreme Court has determined which facets of the Bill of Rights apply to states -- such as the 1st and 8th Amendments -- and which do not, such as the 7th Amendment right to a trial by jury in civil cases whenever twenty dollars or more is at stake. And, similarly, a set of late-19th Century precedents (Cruikshank, Presser and Miller) held that the 2nd Amendment does not restrict states from passing their own restrictions on the right to keep and bear arms.
There's an increasing amount of historical and legal scholarship that argues that this whole line of cases is wrong, starting with the Court's opinion in The Slaughter-House Cases (1873) to strangle in the womb the 14th Amendment's newly-enacted protections of the privileges or immunities of all citizens, which was intended to federalize the protection of individual liberties in the wake of the Civil War. If accepted, these arguments -- presented best in the Constitutional Accountability Center's paper The Gem of the Constitution -- would restore the original progressive intent of the 14th Amendment and the guarantees of all the Bill of Rights against both federal and state action.
What the 7th Circuit held yesterday, expressly adopting the holding of Judge Sotomayor's panel's opinion, is that given the existence of Supreme Court precedent on point, only the Supreme Court itself can overrule these prior decisions, no matter how poorly-reasoned an appellate panel might find them or how likely it is that the judges believe that the Supreme Court itself might overturn the earlier decision. As Judge Easterbrook noted during oral argument, "I entirely appreciate your argument that the Slaughter-House Cases are wrongly decided. But as is often said in the bureaucracy, that’s above our grade level." It's an issue expressly avoided by the Supreme Court in the Heller decision, and with these circuit decisions bubbling I'd expect it to be heard and ruled upon during the 2009-10 term.