Factcheck: Judge Sotomayor’s Real Record On The Second Amendment

handgunDisgraced vote suppression guru Ken Blackwell has found a new crusade—misrepresenting Judge Sotomayor’s record on guns. Citing a recent decision in which Sotomayor voted to uphold a New York State ban on nunchaku, Blackwell told Fox News that Sotomayor’s nomination is a “declaration of war against America’s gun owners.” In an earlier column, Blackwell accused Sotomayor of refusing to follow the Second Amendment:

[Sotomayor] is one of only three federal appellate judges in America to issue a court opinion saying that the Second Amendment does not apply to states. The case was Maloney v. Cuomo, and it came down this past January.

That means if Chicago, or even the state of Illinois or New York, wants to ban you from owning any guns at all, even in your own house, that’s okay with her. According to Judge Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that’s okay under the Constitution.

But Blackwell is not telling the truth about Sotomayor’s record. Not only has Sotomayor consistently followed the Supreme Court’s Second Amendment precedents as she is required by law to do, but a unanimous opinion authored by Federalist Society darling Judge Frank Easterbrook agreed with Sotomayor yesterday that state laws are not subject to Second Amendment scrutiny. All three of the judges on Easterbrook’s panel were Republican appointees.

Like Sotomayor, Easterbrook and his colleagues upheld the states’ power to regulate arms because they understand the basic rule that lower courts are bound by the Supreme Court’s decisions. Until very recently, two Supreme Court decisions limited the scope of the Second Amendment’s right to bear arms. In its 1939 decision in Miller v. United States, the Court held that the Second Amendment only protects the right to keep and bear arms for the purpose of serving in a state militia–Congress was free to regulate firearms used for non-militia purposes. Additionally, in Presser v. Illinois, the Supreme Court held that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.” Thus, under Presser, the states have a free hand to ban firearms and other weapons.

Although the Supreme Court’s recent decision in D.C. v. Heller extended the Second Amendment to protect an individual’s right to own firearms for personal self-defense–regardless of whether or not the arms are also used for militia purposes–Heller also left Presser intact. Indeed, Justice Scalia’s majority opinion in Heller punts the question of whether the Second Amendment applies to the states, stating simply that this question is “not presented by” Heller.

This was the legal landscape that faced Sotomayor when she was confronted by a Second Amendment challenge to New York State’s ban on possession of nunchaku in the Maloney case. Because Presser remains good law, Judge Sotomayor was bound by this Supreme Court decision, and thus lacked the authority to apply the Second Amendment to a New York State law. As the court explained in Maloney, only the Supreme Court has the “prerogative of overruling its own decisions.”

Conservative claims that Judge Sotomayor disregarded the law out of some kind of vendetta against the Second Amendment are baseless. Indeed, by refusing to second-guess a binding Supreme Court precedent, Sotomayor engaged in exactly the kind of “judicial restraint” that conservative Chief Justice John Roberts advocated at his confirmation hearing. In the Chief Justice’s words, Sotomayor’s nunchaku decision shows that she understands that judges “do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”