Sotomayor Gets Cover on Gun Rights Case

By Robert Barnes
Supreme Court nominee Sonia Sotomayor got some cover today for one of her decisions that has enraged gun rights activists: a ruling that the Second Amendment does not apply to state and local governments. Today, conservative luminaries on the U.S. Court of Appeals for the 7th Circuit decided the same thing.

Gun rights advocates have strenuously criticized Sotomayor for a decision by a panel of the Court of Appeals for the 2nd Circuit, of which Sotomayor was a member. The unsigned opinion dismissed a Second Amendment challenge to a New York law on the grounds that the Supreme Court has never held that the amendment applies to state and local governments.

The advocates said the decision in Maloney v. Cuomo was a willful misreading of the Supreme Court's ruling last year in Heller v. District of Columbia, which struck down Washington's handgun ban. But the justices specifically did not decide in Heller whether the Second Amendment was more than a restriction on the federal government, or a federal enclave such as the District.

Today, a panel of the 7th Circuit, hearing a challenge to Chicago's gun laws, said the same thing. "We agree with Maloney," said the opinion, which importantly for Sotomayor's supporters was written by the circuit's chief judge Frank H. Easterbrook, one of the nation's leading conservative judges, along with two Republican-appointed judges, including conservative favorite Richard Posner.

The issue now appears perfectly teed up for the Supreme Court, with decisions in two circuits saying the amendment does not apply to the states and one, the Court of Appeals for the 9th Circuit, saying it does.

But assuming Sotomayor is confirmed to the high court, she might likely have to recuse herself from deciding the issue, since she was part of the 2nd Circuit's ruling. Justices customarily recuse themselves from consideration of cases in which they had a hand, although some point out that the 2nd Circuit's ruling did not reach the merits of the issue, simply applying Supreme Court precedent.