One of the arguments being marshaled against the nomination of Judge Sonia Sotomayor to the Supreme Court is that she is rabidly anti-gun, and a stealth nominee by which President Obama intends to forward his agenda to separate American citizens from the guns that are their constitutional birthright under the Second Amendment. Yesterday, however, the conservative Court of Appeals for the Seventh Circuit, in a decision issued by a panel that included two of the federal judiciary's most illustrious conservative jurists, ruled in a test case filed by the National Rifle Association. The Seventh Circuit not only upheld the anti-gun statutes there in issue, it did so by relying on, and for the precise reasons set forth in a prior decision issued last January by a Second Circuit panel of judges that included Judge Sotomayor.
That Second Circuit case had been earmarked by the right as the centerpiece of its argument that Obama is out to "take away your guns" -- an argument which they hoped to use to promote opposition to Sotomayor in pro-gun leaning states with Democratic Senators. That tactic, while always a long shot, now appears to have been rendered a whole lot less promising.
The Republicans' manufactured "case" against Judge Sonia Sotomayor's nomination continues to melt away faster than a popsicle in mid-August. Here's a look at what appears to be another ineffectual line of attack, although it's far to soon to say the attack will be totally abandoned during the hearings on the nomination.
From the Guns, Nuts, Kooks & Ammo Division of the Conservative far right, located somewhere in East Wingnuttestan, an attack on Judge Sonia Sotomayor has been taking shape based on her handful of judicial rulings and extrajudicial statements on weapons and the extent of an individual's right to "keep and bear arms" under the Second Amendment. Here's a sampling:
Somewhat missing the mark, Citizens Committee for the Right to Keep and Bear Arms, a major fan of semiautomatic firearms, calls Judge Sotomayor's nomination an attempt at "court stacking:"
Failing to get traction for his anti-gun agenda in Congress, Barack Obama is trying instead to stack the federal courts with liberal anti-gunners....
and implicitly encourages the
millions of American citizens who have been rushing to gun shops for the past seven months, fearing their Second Amendment rights are in jeopardy,
to continue their buying spree.
From Gun Owners of America, Springfield, Va.:
President Obama has picked an anti-gun radical to replace Justice David Souter
According to Ken Blackwell, at Faux Forum:
President Obama’s nomination of Judge Sonia Sotomayor is a declaration of war against America’s gun owners and the Second Amendment to our Constitution.
Curt Levey at the Committee for Justice blog:
gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate.
And a Republican "strategist" (yes, apparently there still are such people) reportedly said in an e-mail,
Gun rights is emerging as the "most promising ammunition" for Republicans to attack Sotomayor’s nomination.
What is it about the Judge's views that drives these concerns and strategies? They principally relate to a recent decision in a case involving not guns but, of all things, nunchaku, a device sometimes encountered in martial arts training courses. But nunchaku are, clearly, a form of "arms," and the case in question happens to be one of three (to date) cases in which courts of appeals have considered a citizen's right to "bear arms" after the Supreme Court's important decision on this subject in D.C. v. Heller.
A discussion of Heller and the three courts of appeals cases that have tried to apply it is way, way beyond the scope of this diary, although I hope to return to that subject in a later diary. But to summarize, and perhaps far more than can safely be done and still hope to maintain some semblance of accuracy:
- In Heller, the Supremes held that the Second Amendment was intended to protect an individual's right to own guns (not just the right of states to maintain militias) and it invalidated a strict gun control law enacted by the D.C. Government. But it said it was not deciding whether states, cities, towns, etc. had the right to ban or regulate gun ownership by individuals. So that issue was pretty much earmarked as the next big issue that would have to be decided by other courts, and eventually by the Supremes themselves.
- The very first court to have the opportunity to figure out how to apply the Heller case was the Second Circuit, with a panel of judges that included -- wouldn't you know -- our own nominee, Judge Sotomayor. In the Maloney case, decided in January of this year, the State of New York had enacted a criminal law forbidding the possession of nunchaku. The plaintiff sued to set aside the law, asserting that punishing the possession of nunchaku in one's home was unconstitutional. The Second Circuit upheld the law, on the basis that the Supreme Court, in a case going way back to 1886, had held that the Second Amendment applies only to limitations the federal government, not state governments, impose on weapons possession. And while Heller could be read to suggest doubt on that 1886 holding (since, among other things, the Heller court had held that one thing protected by the Amendment was an individual's right to the means of self-defense), it did not affect it, for the simple reason that Heller did not involve a state limitation on weapons. Thus, the Second Circuit held, the 1886 case is still a binding Supreme Court precedent, and only the Supreme Court has the power to overrule one of its own precedents.
- The second appellate court that came up to bat to take a swing at the issues raised by Heller was the Ninth Circuit, often derided as the most "liberal" court and the one most overturned by the Supreme Court. In a decision issued on April 20 of this year, that court struck down a law enacted by Alameda County, CA prohibiting gun shows at the County fairgrounds. Trying to wend its way through the thicket of a new and complicated Supreme Court precedent, the court elected to put the emphasis on the part of the Heller decision that found that the 2nd Amendment protected individual rights, and rode that premise to the conclusion that counties could not infringe those constitutional rights by precluding shows and sales of guns. It struck down Alameda County's statute.
So -- to digress briefly at this point -- the Second and Ninth Circuit post-Heller decisions came to directly opposite conclusions, which had set the stage pretty nicely for the pro-gun wingnut faction. Look at the Ninth Circuit, they could say, where even liberal, lefty judges had to conclude that states can't regulate gun ownership. Then compare how Judge Sotomayor ruled, refusing to strike down a state ban on weapons. Clearly, it's all part of Obama's scheme to strengthen restrictions on gun ownership and, ultimately, strip us of our guns!! After these battle lines had been drawn, however, --
- The Court of Appeals for the Seventh Circuit yesterday issued a decision in an important case brought by the NRA to invalidate anti-gun laws in Chicago and Oak Park, IL that banned the possession of most handguns, some of the most restrictive anti-gun measures in the nation. The NRA had selected this case as the one to push after the Heller case came down, as its next, big test case to attempt to extend the pro-gun ruling in Heller. The NRA had to be very optimistic when the panel of judges it drew for its test case included both Judges Easterbrook and Posner, two of the leading conservative lights in the entire federal judiciary. So what did this Court do? It held:
We agree with [the Second Circuit's decision in] Maloney....
Yes, that's right, based on the same rationale employed by Judge Sotomayor and the panel in Maloney, the Seventh Circuit panel of distinguished conservative judges rejected the NRA's arguments and allowed the Chicago and Oak Park bans on handguns to stand.
So what can the denizens of East Wingnuttestan make of this mess? At this point, if any claim is advanced that Judge Sotomayor is a stealth nominee through which Obama seeks to "take our guns away," it will be immediately met by the stone-cold fact that Judge Sotomayor had the same take on the legal issues relating to state limitations on weapons as the very conservative judges of one of the nation's most conservative courts of appeal. In that decision, she appropriately gave full effect to a direct and binding Supreme Court precedent, more than a century old, and refused the invitation the case before her presented to "legislate from the bench," by substituting her judgment for the considered judgment of the state legislature. At least with respect to her Second Amendment opinion, her decision exhibits the traits of careful jurists, strict constructionists if you will, and would appear to provide absolutely no traction to those seeking to assert that the Judge has any anti-Second Amendment bias or agenda.