You could interpret Sotomayor's ruling (and Easterbrook's) as proof of something bad: a rejection of the Second Amendment. Or you could interpret it as proof of something good: judicial restraint. It is tempting for supporters of gun rights, myself included, to wish that lower courts would go beyond what the Supreme Court has done. But that is the kind of judicial activism we tend to oppose when it's done for other, less congenial causes.
But her critics charge that Sotomayor's anti-gun bias was on display even before this decision. In 2004, she joined a decision dismissing a Second Amendment claim by an illegal immigrant convicted of handgun possession, noting that her court had previously said "the right to possess a gun is clearly not a fundamental right."
Sorry, but this assertion is no smoking gun either. It was merely a reasonable summary of legal precedents that she was obligated to follow. The Supreme Court's chief previous ruling on the Second Amendment, in 1939, after all, rejected the idea that individuals have a right to own guns for personal use.
If that weren't clear enough, in 1980 the justices stated that a federal ban on gun possession by felons did not affect "any constitutionally protected liberties." When Sotomayor's court said gun ownership is not a fundamental right, it was giving not a personal opinion of what should be, but a simple declaration of the state of the law as it stood in 2004.
Of course Sotomayor may have found that it also fit neatly with her policy preferences. Given her generally liberal profile and her selection by a president who is not exactly a Second Amendment stalwart, the chances are pretty good that she takes a favorable view of gun control.
But you can't prove it based on how she's ruled from the bench. Nothing in her judicial record would preclude her from voting to reaffirm the court's decision last year -- or going further to strike down state and city gun bans.
Maybe that's hoping for too much. But Supreme Court nominees have surprised presidents before. Until we find a certified mind reader to ransack Sotomayor's innermost thoughts about gun laws, we ought to admit something commentators hate to say: We don't know.
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