Sotomayor

This is from SCOTUS Blog:

Supreme Court nominee Sonia Sotomayor, already facing bitter criticism
from gun rights advocates for an appeals court decision she joined last
January, may have to choose whether to take part when the constitutional
issue at stake comes up before the Supreme Court (assuming that she is
confirmed). As of now, the first case in line on that issue is the one on
which she ruled as a judge of the Second Circuit Court ? Maloney v.
Cuomo.

The Maloney decision (Second Circuit docket 07-581) involves the next
major issue on the Constitution?s Second Amendment, which guarantees a
?right to keep and bear arms.? The issue is whether that Amendment
applies to state and local government, thus restricting their power to
control individuals? private possession of pistols and other guns. The
Supreme Court ruled last year, in District of Columbia v. Heller, that
the Amendment protects an individual right to have a gun, for self-
defense, in the home.

The Court, however, did not settle whether the Amendment operates against
any level of government other than the federal government and a federal
entity, the District of Columbia. The Second Circuit, in the Maloney
case, ruled that prior Supreme Court precedent saying that the Amendment
only applied at the federal level is still binding law. Sotomayor was a
member of a three-judge panel that issued the unsigned ruling.

In reaction to her nomination, supporters of broad rights under the
Second Amendment exploded. For example, Curt Levey, executive director
of the conservative advocacy group, Committee for Justice, wrote: ?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. Because they can send red state Democrats running for
cover, gun owners are the one interest group that could completely change
the political equation on judicial nominations if they?re drawn into the
debate. Obama?s selection of Sotomayor makes that virtually certain.?

The Maloney case is now scheduled to be challenged in the Supreme Court
by June 26. Sotomayor, as a Justice, almost certainly would take herself
out of consideration of that case, because of her prior participation in
it at the Circuit Court.

Other cases raising the same question, however, are moving along in lower
courts, and it is possible that the Justices may see more of those,
perhaps over the summer months. If that happens, the Court may have other
vehicles to choose from, thus perhaps giving Sotomayor a chance to get
involved.


The Ninth Circuit Court in April became the first federal appeals court
to rule that the Second Amendment does apply to state and local
government ? thus assuring the kind of Circuit split that often leads the
Supreme Court to step in to resolve the disput.e

The Ninth Circuit did so in the case of Nordyke, et al., v. King (Circuit
docket 07-15763). Although there was a chance that the Nordyke case
could be appealed soon to the Supreme Court, in time to compete with the
Maloney case for the Court?s attention on the Second Amendment question,
that prospect dimmed last week. A judge of the Ninth Circuit called for
a vote on whether the full en banc Court should consider the case. Both
sides were ordered to file simultaneous briefs on that question by June 8
? thus slowing down the pace of that case.

Another case on the same issue involves the leader of the Nation?s gun
rights forces ? the National Rifle Association. Its lawsuit seeking to
have the Second Amendment apply to state and local government (National
Rifle Association v. City of Chicago) was heard Tuesday by a three-judge
panel of the Seventh Circuit Court (docket 08-4241). An early decision
is expected in that case; indications at the oral argument were that two
of the judges were deeply skeptical of the NRA?s plea (see this analysis
by law professor Randy Barnett at the Volokh Conspiracy blog. Thanks to
Howard Bashman of How Appealing blog for this link.)


Here is the analysis from Law Professor Randy Barnett:

Posner & Easterbrook in Action During Oral Argument on Incorporation of a
Right to Arms: Circuit Court Judge Bauer expresses his enjoyment of
Judges Posner and Easterbrook's roasting of Stephen Halbrook and Alan
Gura's argument that the Seventh Circuit is not bound by Supreme Court
precedent (Cruikshank & Presser) denying that the Second Amendment is
applicable to the states because these decisions failed to consider
whether the right to keep an bear arms is incorporated in the Due Process
Clause of the Fourteenth Amendment. At the invitation of Judge
Easterbrook, Gura eventually preserves his arguments on the merits and
sits down. While Judge Easterbrook also expresses his view that the
Slaughter-House Cases were wrongly decided, that and $2.25 will get you a
ride on the CTA. For his part, Judge Posner manifests his general
contempt for a constitutional right to arms--indeed he volunteers his
view that states may constitutionally abolish the privilege of self-
defense. He denies that there was any enthusiasm for gun rights in 1868,
and seems completely unaware of the copious evidence that the Thirty-
Ninth Congress was much concerned about protecting the individual right
to keep and bear arms as a means for the freedman to protect themselves
from violence. Here, for example, is the wording of the Freedman Bureau's
Act:
And be it further enacted, That in every State or district where the
ordinary course of judicial proceedings has been interrupted by the
rebellion . . . the right to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease, sell, hold, and
convey real and personal property, and to have full and equal benefit of
all laws and proceedings concerning personal liberty, personal security,
and the acquisition, enjoyment, and disposition of estate, real and
personal, including the constitutional right to bear arms, shall be
secured to and enjoyed by all the citizens of such State or district
without respect to race or color, or previous condition of slavery.
So in this regard it is fortunate that Judge Posner will not be reaching
the merits of the Fourteenth Amendment claim--just as it was fortuitous
he was not on the DC Circuit to hear the Heller case.

You can listen to the argument here:

http://www.ca7.uscourts.gov/fdocs/docs/fwx?submit&shofile=08-4241_001.mp3





--
RD (The Sandman)

Thought for the day.......

Handle every stressful situation like a dog would.

If you can't eat it or hump it....Piss on it and walk away.
.

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