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Sotomayor and the Second Amendment

Supreme Court nominee Sonia Sotomayor, already facing bitter criticism from gun rights advocates for an appeals court decision she joined last January, may have to choose whether to take part when the constitutional issue at stake comes up before the Supreme Court (assuming that she is confirmed). As of now, the first case in line on that issue is the one on which she ruled as a judge of the Second Circuit Court — Maloney v. Cuomo.

The Maloney decision (Second Circuit docket 07-581) involves the next major issue on the Constitution’s Second Amendment, which guarantees a “right to keep and bear arms.”  The issue is whether that Amendment applies to state and local government, thus restricting their power to control individuals’ private possession of pistols and other guns.  The Supreme Court ruled last year, in District of Columbia v. Heller, that the Amendment protects an individual right to have a gun, for self-defense, in the home.

The Court, however, did not settle whether the Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia.  The Second Circuit, in the Maloney case, ruled that prior Supreme Court precedent saying that the Amendment only applied at the federal level is still binding law.  Sotomayor was a member of a three-judge panel that issued the unsigned ruling.

In reaction to her nomination, supporters of broad rights under the Second Amendment exploded.  For example, Curt Levey, executive director of the conservative advocacy group, 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.  Because they can send red state Democrats running for cover, gun owners are the one interest group that could completely change the political equation on judicial nominations if they’re drawn into the debate. Obama’s selection of Sotomayor makes that virtually certain.”

The Maloney case is now scheduled to be challenged in the Supreme Court by June 26.  Sotomayor, as a Justice, almost certainly would take herself out of consideration of that case, because of her prior participation in it at the Circuit Court.

Other cases raising the same question, however, are moving along in lower courts, and it is possible that the Justices may see more of those, perhaps over the summer months. If that happens, the Court may have other vehicles to choose from, thus perhaps giving Sotomayor a chance to get involved.

The Ninth Circuit Court in April became the first federal appeals court to rule that the Second Amendment does apply to state and local government — thus assuring the kind of Circuit split that often leads the Supreme Court to step in to resolve the disput.e

The Ninth Circuit did so in the case of Nordyke, et al., v. King (Circuit docket 07-15763).  Although there was a chance that the Nordyke case could be appealed soon to the Supreme Court, in time to compete with the Maloney case for the Court’s attention on the Second Amendment question, that prospect dimmed last week.  A judge of the Ninth Circuit called for a vote on whether the full en banc Court should consider the case.  Both sides were ordered to file simultaneous briefs on that question by June 8 — thus slowing down the pace of that case.

Another case on the same issue involves the leader of the Nation’s gun rights forces — the National Rifle Association.  Its lawsuit seeking to have the Second Amendment apply to state and local government (National Rifle Association v. City of Chicago) was heard Tuesday by a three-judge panel of the Seventh Circuit Court (docket 08-4241).  An early decision is expected in that case; indications at the oral argument were that two of the judges were deeply skeptical of the NRA’s plea (see this analysis by law professor Randy Barnett at the Volokh Conspiracy blog.  Thanks to Howard Bashman of How Appealing blog for this link.)

Another Second Amendment case moving toward a decision, in the Fifth Circuit Court, does not involve the question of applying the Second Amendment to states, counties and cities. But it does test whether the right recognized by the Supreme Court is a “fundamenal” one; if it is of that rank, that very likely would lead to its application to state and local government.  (The Fifth Circuit case is Bledsoe v. U.S., docket 08-51217. Briefing was completed in March. Both sides have waived oral argument.)

If Sotomayor as a member of the Supreme Court does take part in the next round on the Second Amendment, it is unclear just what difference that would make.  She would replace retiring Justice David H. Souter, who dissented in the Court’s 5-4 ruling in Heller establishing a personal right to have a gun in the home.

If the same five Justices who made up the Heller majority were to rule that the Amendment reaches below the federal government, Sotomayor’s vote probably would not be decisive.  She could bolster a majority, if she were so inclined, in favor of the broader application, of course.