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Conservative Judges Echo Sotomayor in Gun Ruling

By Robert Barnes
Washington Post Staff Writer
Wednesday, June 3, 2009

Supreme Court nominee Sonia Sotomayor has been called an "anti-gun radical" by some gun rights activists for joining an opinion this year that said the Second Amendment does not prevent state and local governments from restricting arms ownership.

But yesterday a panel of conservative luminaries on the U.S. Court of Appeals for the 7th Circuit reached the same decision. The unanimous ruling rejecting a challenge to Chicago's tough handgun law could complicate efforts to portray Sotomayor as a judicial activist trying to undermine the Supreme Court's landmark decision last year holding that the amendment protects the right to own a gun for self-defense.

It also tees up the issue for review by the high court and raises questions about whether Sotomayor would be able to participate, should she be confirmed to the court.

Gun rights advocates have criticized Sotomayor for a decision by a panel of the Court of Appeals for the 2nd Circuit of which she was a member. The unsigned opinion dismissed a challenge to a New York law that banned nunchakus, a martial arts weapon.

The challenger had relied on the Supreme Court's decision in Heller v. District of Columbia, which struck down Washington's ban on handguns and said individuals have the right to keep arms at home for self-defense.

But the panel on which Sotomayor served said it was clear from Supreme Court precedent that the Second Amendment could be applied only to the federal government, or in a federal enclave such as Washington. It said only that the Supreme Court has "the prerogative of overruling its own decisions."

Gun rights advocates pointed to the decision in Maloney v. Cuomo as Exhibit A in their description of Sotomayor as an "anti-gun radical."

"Sotomayor, a politically correct lover of centralized government power (as long as she is part of the power elite), immediately went into counter-attack mode against the Heller decision," said a statement by the Gun Owners of America.

But yesterday, a panel of the 7th Circuit, hearing a challenge to gun laws in Chicago and the suburb of Oak Park, came to the same conclusion. "We agree with Maloney," said the opinion, referring to the 2nd Circuit's decision. The 7th Circuit's decision 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 A. Posner.

The 7th Circuit opinion said it was not up to appeals courts to evade the Supreme Court's precedents by agreeing with unique arguments from lawyers that tried to undermine them.

If that were the case, Easterbrook wrote, the court's decisions "would bind only judges too dim-witted to come up with a novel argument."

The issue touches on the question of whether the Bill of Rights applies to state and local governments.

Lawyers challenging gun restrictions and some legal scholars contend that they do, through the due-process clause of the 14th Amendment. And that was the finding of the U.S. Court of Appeals for the 9th Circuit earlier this year. The Supreme Court's 5 to 4 decision in the Heller case last year, which for the first time found that the Second Amendment provided an individual right to bear arms, specifically left the decision of whether it applied to the states for another day.

The conflicting opinions among the various circuit courts could bring the issue to the Supreme Court, raising the question of whether Sotomayor, if confirmed, would be able to participate.

"I don't think a justice should sit in review of her own decision," said Steven Lubet, a judicial ethics expert at Northwestern University Law School. But the situation could be different if the court were considering the 9th Circuit or the 7th Circuit cases. Justices make their own decisions about recusal.

Walter E. Dellinger III, who argued the Heller case for the District and who has worked with the White House in supporting Sotomayor's nomination, said yesterday's decision should end the attack on her over gun rights.

"When two of the most highly regarded, conservative judges agree that courts of appeal should not reach out and make new law on this issue, it renders Judge Sotomayor's opinion on this subject beyond criticism," Dellinger said.

But David B. Kopel, a lawyer who has supported the proposition that the Second Amendment applies to the states and who has been sharply critical of Sotomayor, said the 7th Circuit decision is not likely to change the views of gun rights activists that the New York judge is "anti-gun" and that the opinion in Maloney was intellectually "dishonest."

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