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Mind-meld: Sotomayor and Conservative Luminaries


We’ve just updated our recent Ask FactCheck item on Sonia Sotomayor and the Second Amendment to reflect the latest news: A ruling by three judges on the 7th U.S. Circuit Court of Appeals agreeing with her judgment that the amendment doesn’t apply to state and local governments.

The decision in National Rifle Association v. Chicago takes some of the air out of the argument, put forward by the NRA and others, that Sotomayor is anti-gun rights. Sotomayor and two other 2nd Circuit judges had ruled in January, in Maloney v. Cuomo, that it was "settled law," based on earlier Supreme Court decisions, that the prohibition on curtailing the right "to keep and bear Arms" was only applicable to the federal government. The 7th Circuit’s ruling on June 2 hews to a similar interpretation of Supreme Court precedent:

NRA v. Chicago: If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.

Strikingly, the 7th Circuit panel assigned to this case included Judges Frank Easterbrook and Richard Posner, two leading lights of conservative jurisprudence. It’s actually in line with their federalist (states’ rights) points of view. But the decision also helps the argument by Sotomayor’s supporters that she is not an activist judge and sticks closely to precedent.

The 9th Circuit appellate court recently ruled the other way on this issue, in Nordyke v. King. But the 7th Circuit explicitly rejected the reasoning in that opinion and said it agreed with the Maloney decision.