Much has been made of Sonia Sotomayor’s decision in Maloney v. Rice, which affirmed the right of New York to deny the right to bear nunchukas to its citizens. In the decision she supported, the U.S. Court of Appeals for the Second Circuit upheld the New York ban on nunchukas, noting that the landmark Heller vs. DC decision (which affirmed the individual right to keep and bear arms) applied solely and explicitly to federal law, not state law, based on that ruling itself and because of the contradictory rulings in other standing Supreme Court rulings.

While opponents of the president have seized on the opportunity to paint Sotomayor as a clear and notorious gun grabber, those same voices have ignored the fact of what Heller actually says. Here is an excerpt from the actual case, as authored by Supreme Court Justice and notorious liberal activist (joking!), Antonin Scalia:

“Like most rights, the right secured by the Second Amendment is not unlimited… We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.' ”

(Like maybe nunchuckas?)

At the time Heller came out, I noted it was only a minor victory, filled with qualifications and caveats. For instance, the Heller decision includes a virtual invitation from Scalia to the states and local jurisdictions to create so-called gun free zones. Writing for the majority, Scalia notes that the Heller ruling should not “cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The Heller judgment also confirmed the government’s ability to restrict the types of guns (and nunchuckas) that may be owned, as noted above.

The narrow victory represented by Heller said only that the federal government may not prohibit individuals from keeping and carrying loaded firearms (including handguns) in their homes, but that government can still require a permit before even that narrow right is allowed.

This unfortunately narrow ruling is not the opinion of a circuit judge or a liberal activist—it represents the signed opinion of justices Alito, Kennedy, Roberts, Thomas and Scalia. And yet Sotomayor—a circuit judge with no authority to overturn Supreme Court  rulings—has been labeled as an anti-gun crusader on the basis of upholding the Heller decision in the single 2nd Amendment case ever before her. I propose this “case” of hysterics against Sotomayor is not about Sotomayor or even President Obama, but about stirring up the passions of the faithful rightwing and especially rightwing donors for pious PACs and other fundraising organizations. Sorry guys, but no sale. In fact, if anything, supporters of Heller should be celebrating the findings of the Congressional Research Service report on Sotomayor which found:

“Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents.”

Sorry, but that’s just not the biography of a radical.

Happily, there are now three cases with the potential to expand the Heller ruling to states which are likely to be heard by the Supreme Court: Maloney v. Rice (Second Circuit), National Rifle Assn of America v. City of Chicago and Village of Oak Park (Seventh Circuit) and Nordyke v. King (Ninth Circuit). The ruling of the Ninth Circuit claimed that the 2nd Amendment—and therefore the Heller ruling—does apply to states by virtue of the “Due Process Clause of the Fourteenth Amendment,” a legal theory known as “incorporation.” Both the Seventh Circuit and the Second Circuit (of which Sotomayor is currently a member) ruled that, based on what Heller actually says, the Supreme Court had not ruled that states are bound by the 2nd Amendment.

But what the Second Court ruling (signed by Sotomayor) went on to say was:

“[where], as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”

In other words, the Maloney v Rice decision is an invitation to the Supreme Court to re-examine that case, and to apply Heller to the states if they so choose. Given that Sotomayor helped write this decision knowing there was a 5-to-4 majority in favor of Heller gives a decidedly different view of her objectives than those portrayed by the right-wing fundraising groups assailed against her. AHSA sincerely hopes—and predicts—that the Supreme Court will use the opportunity of these new legal challenges to firearms restrictions to expand the Heller decision explicitly to state law. Further, we hope the narrow interpretations of Heller are expanded. Given Sotomayor’s strong history of supporting victim’s rights, we are optimistic that she will side with the majority.

Much has been made of Sotomayor’s statement that “ [she] would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” In contrasting Sotomayor’s life story to that of retiring Justice Souter (who voted against the Heller decision) the following quote by gun policy researcher Gary Kleck is instructive. Says Kleck:

“. . . though blacks were generally less likely than whites to own guns, they were more likely than whites to own solely for protection. In particular, 9.8% of all Illinois black female respondents [to the Illinois survey cited in the book] owned a gun solely for protection, compared to only 2.4% for the white males . . . The common stereotype held among gun control proponents of a Daniel Boone lingering on from yesterday should perhaps give way to that of a black nurse hoping to make it to tomorrow.”

We think a wise Latina from the Bronx will be the better one to understand that.