Heritage Senate Relations Director Brian Darling notes:
President Obama’s nominee to the U.S. Supreme Court, 2nd Circuit Judge Sonia Sotomayor, owes the American people an explanation on her view of the Second Amendment. Most nominees come before the Senate Judiciary Committee and refuse to answer questions about hot-button issues such as abortion, gay marriage, gun rights and the death penalty. But Sotomayor shouldn’t be allowed to skirt the Second Amendment issue, because she cosigned a decision in a case earlier this year that exhibited a dismissive and hostile view of the right to bear arms. … during the past few months the Senate has voted three times on pro-gun legislation. Each of these legislative amendments passed with overwhelming bipartisan margins. Clearly, the view that the Second Amendment protects an individual’s right to own and carry a weapon is held by more Senators than the view that the Second Amendment is an empty phrase.
But what about that recent Seventh Circuit opinion holding that the Second Amendment is not incorporated against the states? Heritage fellow Robert Alt distinguishes the two cases:
In light of the Seventh Circuit’s opinion in NRA v. City of Chicago, holding that Supreme Court precedent binds the court to hold that the Second Amendment does not apply to the states, it is useful to note a key distinction between that case and Sotomayor’s in Maloney v. Cuomo. Notably, in Maloney, Sotomayor joined an opinion finding that New York’s weapons law did not “interfere with a fundamental right.” (She had expressed similar views pre-Heller, when she joined an unpublished opinion stating that “the right to possess a gun is clearly not a fundamental right.”) As such, Sotomayor has the distinction of having voted with the only court of appeals decision to so denigrate Second Amendment rights after Heller. The Ninth Circuit in Nordyke v. King found that the right to bear arms is a fundamental right deeply rooted in this nation’s history and tradition, and the Seventh Circuit in NRA, applying what Eugene Volokh ably dissects as undue judicial restraint, did not speak to the question.