Friday, June 5, 2009

Gun issue heats up for Sotomayor

From Ken Klukowski of the ACRU, writing at Fox News Forums:
This week a federal appeals court held that the Second Amendment does not apply to state or city gun laws. Supporters of Judge Sonia Sotomayor incorrectly argue that this affirms her recent gun-control case. Now the NRA is petitioning the U.S. Supreme Court to take the case, and in doing so heats up the gun-rights issue to potentially become the dominant topic in Sotomayor’s confirmation hearings.

On June 2, the U.S. Court of Appeals for the Seventh Circuit handed down its decision in NRA v. Chicago. The city of Chicago has a ban on handguns almost as severe as the one invalidated by the Supreme Court last year in D.C. v. Heller. The National Rifle Association filed suit, seeking to have the Chicago gun ban struck down.

The Seventh Circuit held that the Second Amendment right to bear arms does not apply to state or city laws. All three judges on the panel hearing the case were appointed by Republican presidents. In January, Sotomayor was on a three-judge panel from the Second Circuit that similarly held that the Second Amendment affects only federal law, not state or local law. Supporters of Sotomayor are touting the Chicago ruling as proof that her Second Circuit case, Maloney v. Cuomo, was a mainstream opinion, arguing that the Seventh Circuit agrees with her.
As recently as 1997 the Supreme Court reiterated that even old precedents from the High Court bind all lower courts. The Seventh Circuit appropriately noted the Supreme Court’s instructions, and concluded that questions about whether the Second Amendment is incorporated, “are for the [Supreme Court’s] Justices rather than a court of appeals.” In other words, they recognized that after last year’s Heller case the Supreme Court appeared ready to incorporate the Second Amendment, but the Seventh Circuit considered their hands tied on the issue. They essentially have tossed the case up to the Supreme Court.

Contrast the Seventh Circuit’s opinion with Sotomayor’s Maloney case from the Second Circuit. This week the Seventh Circuit devoted nine pages to its analysis. The Ninth Circuit, which held in April that the Second Amendment is incorporated to the states, devoted 12 pages to its analysis.

Sotomayor’s Second Circuit devoted merely a single paragraph to the issue. The opinion does not even note that there has been a century of Supreme Court cases—15 cases, to be exact—incorporating various Bill of Rights provisions to the states. It simply embraced the 1886 Supreme Court case on the issue, said the Second Amendment does not apply whatsoever to the states, and then dropped the issue without further discussion.

Well-crafted judicial opinions lay out legal rules with clear reasoning to interpret the Constitution and provide guidance to other courts. The Second Circuit was the first appeals court after the Heller decision to consider whether the Second Amendment applies to the states. To routinely discard such an important question with a single paragraph is simply stunning.

Now this issue may become the single hottest issue in Sotomayor’s confirmation hearings, because one of these cases—most likely NRA v. Chicago—will almost certainly be going to the Supreme Court in the next 12 months. The NRA petitioned on Wednesday for the Supreme Court to take the case, and various groups are already lining up to support the petition. ...

Article here. Actually, the Seventh Circuit could have ruled that, in light of the Supreme Court's historic Heller ruling last year, the Second Amendment is one of those fundamental protected rights that is incorporated by the Fourteenth Amendment against the states, just like the Ninth Circuit did.

In my opinion, the anti-gun judges on the Seventh Circuit panel that decided NRA v. Chicago used the 120+ year old Presser case to have the case come out the way they wanted, that is, to uphold the Chicago gun ban and deprive the law-abiding citizens of that city their fundamental civil rights. That the Second Circuit panel that decided Maloney didn't waste as much ink and paper to reach the same result only shows that Judge Sotomayor and her colleagues on that panel are more efficient at depriving citizens of their fundamental civil rights (but only those they doesn't approve of).

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