Sotomayor's Second Amendment Record

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Prospective Supreme Court Justice Sonia Sotomayor's record as a federal judge is being examined for clues as to how she would rule on constitutional issues before the high court. As an appeals court judge, Sotomayor has one ruling on the Second Amendment that's getting close scrutiny.


If Judge Sotomayor is confirmed to the Supreme Court, she'll be asked to weigh in on a range of controversial issues, which could include the right to bear arms. Some gun rights advocates are concerned about her record on the Second Amendment. They point to a case Sotomayor helped decide earlier this year. The lawsuit was not about guns, but nunchucks. NPR's Ari Shapiro explains.

ARI SHAPIRO: Take two short bars or pipes, connect them with a chain or rope or piece of leather, and now you have a pair of nunchucks. They're apparently a favored weapon of muggers and street gangs in New York. So if you live in that state, you're not allowed to keep nunchucks in your home. Aficionados like Long Island Attorney James Maloney call them nunchaku.

Mr. JAMES MALONEY (Attorney): The beauty of nunchaku is that they're essentially useless in untrained hands, and one can have a pair - if one can legally possess them in one's home - one can have a pair 24/7, you know, stuck under the mattress, ready in case an intruder comes in. And then you've got at least something in your hand.

SHAPIRO: Maloney challenged his state's anti-nunchucks law and lost. So he went to the Second Circuit Appeals Court, where a panel of three judges heard his case, including Judge Sonia Sotomayor. The case came to her just after the Supreme Court decided its first gun rights case in nearly 70 years. The Supreme Court justices invalidated Washington D.C.'s gun law. And for the first time, they said the Constitution contains an individual, not just a collective right to own a weapon. But Sotomayor and the other two appeals court judges said the Supreme Court did not address the nunchucks issue, and they said earlier cases from the High Court do. Sotomayor and the other judges ruled that the Second Amendment only keeps the federal government from limiting weapon ownership. They said state laws like the anti-nunchucks law in New York are fine.

Mr. KEN BLACKWELL (Family Research Council): This point of view is a direct threat to Second Amendment freedoms.

SHAPIRO: Ken Blackwell of the Family Research Council recently wrote an opinion piece with the headline, "Obama Declares War on America's Gun Owners with Supreme Court Pick."

Mr. BLACKWELL: As she is one of only three of 170 judges to sit on appellate courts across the country to articulate a belief that she thought that cities and states could truncate Second Amendment freedoms.

SHAPIRO: Only one other federal appeals court has addressed the issue at all. And that panel came down on the other side.

Professor EUGENE VOLOKH (Law, UCLA): I would put relatively little weight on this opinion in evaluating Judge Sotomayor's stance on gun rights.

SHAPIRO: UCLA Law Professor Eugene Volokh supports individual gun rights. But he says Sotomayor did not take a radical position in this case. He believes it's likely that Sotomayor will take a restrictive view of the Second Amendment.

Prof. VOLOKH: But I think that the likelihood stems from who is appointing her and from the fact that she hasn't affirmatively said anything in favor of gun rights in the past, rather than from this particular decision.

SHAPIRO: Senators will almost certainly ask Sotomayor about the Second Amendment at her confirmation hearing. After all, many legal analysts predict that like Sotomayor, the New York nunchucks case is on a path to the Supreme Court.

Ari Shapiro, NPR News, Washington.

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