CQ TODAY ONLINE NEWS
– LEGAL AFFAIRS
June 3, 2009 – 12:14 a.m.
How Does Sotomayor Really Feel About Nunchakus?
By Seth Stern, CQ Staff
And now, another question for Judge Sonia Sotomayor: How do you feel about the constitutional right to keep and bear nunchakus? Her answer could draw new opposition to her nomination to sit on the Supreme Court.
In a legal sense, gun rights advocates see no difference between a firearm and a martial arts weapon that consists of two small clubs joined with a short length of chain.
Earlier this year, Sotomayor was part of a three-judge panel that rejected a claim that New York’s ban on nunchakus violated a defendant’s Second Amendment right to keep and bear arms.
“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,” wrote Curt Levey, executive director of the Committee for Justice and one of Sotomayor’s conservative critics.
In the short unsigned opinion that’s now being scrutinized by gun-rights groups, Sotomayor and two colleagues on the U.S. Court of Appeals for the 2nd Circuit stuck with a longstanding distinction between weaponry limitations imposed by localities and states and limitations imposed by Uncle Sam.
Their opinion in the case of Maloney v. Cuomo relied on an 1896 Supreme Court decision for the proposition that “The Second Amendment applies only to limitations the federal government seeks to impose on this right.”
To those studying the record for clues on how Sotomayor might rule on Second Amenment cases that come before the Supreme Court, the nunchakus case is noteworthy.
“I think it’s something that will have to be looked at,” Jeff Sessions of Alabama, the Senate Judiciary Committee’s top Republican, said when asked about the case Tuesday.
Whether the Second Amendment applies to states and localities is a question that is very likely to come before the high court in the near future.
Three federal courts recently reached different conclusions on the question of whether the Second Amendment is “incorporated” against lower levels of government.
In an opinion released in April, the 9th Circuit, which covers the western part of the country, ruled that the Second Amendment is incorporated down the line, though it ultimately rejected a challenge to a ban on firearms on county property.
On Tuesday, a three-judge panel on the 7th Circuit, which covers part of the Midwest, unanimously sided with the position taken by Sotomayor and her colleagues in the nunchukas case.
The 7th Circuit judges, which included noted conservatives Richard Posner and Frank Easterbrook, held the Second Amendment does not apply to state or local regulations under current law and any change would have to come from the Supreme Court.
When there is a split among the circuit courts, the Supreme Court is more likely to accept one of the appeals in those cases.
Randy Barnett, a Georgetown University law professor, cautioned against using the nunchakus case to predict how Sotomayor might rule in a gun control case. Appellate courts generally presume that only the Supreme Court can overturn precedent, he said.
Sotomayor’s defenders make a similar argument.
“Sotomayor followed existing law,” says Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.
Gun rights groups, though, want to hear the nominee spell out her views on the Second Amendment.
“One thing we’re going to insist upon is that her position on the Second Amendment is clear at these confirmation hearings,” said Andrew Arulandam, a spokesman for the National Rifle Association.




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