Last summer, the Supreme Court, for the first time ever, said the Second Amendment protects an individual right to own a gun for self-defense. It was a historic decision that put real limits on gun control. But gun-rights advocates complain that someone didn't get the memo -- someone named Sonia Sotomayor.
Exhibit A is her decision in January to uphold the conviction of a New York man for possession of fighting sticks called nunchakus. He said the law violated his right to keep and bear arms. But in a unanimous decision joined by Sotomayor, the 2nd Circuit Court of Appeals found "it is settled law … that the Second Amendment does not apply to the states and therefore imposed no limitations on New York's ability to prohibit the possession of nunchakus" -- or, by implication, firearms.
Does that sound like the sort of arrogant verdict you would expect from an activist, liberal, gun-hating judge? It shouldn't. Sotomayor's decision was a model of judicial restraint that was entirely appropriate given the Supreme Court's record.
Don't take my word for it. The issue of whether the Second Amendment limits the power of state and local governments recently came up in the 7th Circuit Court of Appeals in Chicago. Good luck finding an activist liberal on the panel issuing that decision. It was composed entirely of judges appointed by Republican presidents. Yet it ruled exactly the same way.
The author of the decision was Frank Easterbrook, one of the most intellectually formidable conservatives on the federal bench. In his opinion, he said "we agree with" the Sotomayor court's decision. Last year's Supreme Court ruling, he noted, applied only in the District of Columbia, a federal enclave, and past Supreme Court rulings rejected extending the Second Amendment to the states.
That conclusion, said Easterbrook, "is open to re-examination by the justices themselves when the time comes." In the meantime, a lower court should not "strike off on its own." There is no guarantee, in his view, that the Supreme Court will expand the reach of the Second Amendment. "Federalism," he wrote, "is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."