Senate Republicans said Wednesday they would press Judge Sonia Sotomayor on gun rights, a politically divisive issue that they hope could weaken Democratic support for the Supreme Court nominee.
Though Republicans are a pronounced minority in both the House and Senate, they have used the gun issue to their advantage to divert the legislative agenda, forcing Democrats from moderate and conservative states to take politically risky votes on gun provisions.
Sotomayor’s judicial record appears to provide the GOP with another opportunity to bring the issue to light. Since the Supreme Court decided in a landmark case last year that restrictive laws in Washington, D.C. -- a federal entity -- infringed on a constitutionally protected right to own a handgun, the debate has shifted to whether that ruling also affected handgun control laws in individual states.
This year, Sotomayor was part of a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York that held the 2nd Amendment did not apply to the states. At a news conference Wednesday, Sen. Jeff Sessions of Alabama, ranking Republican on the Senate Judiciary Committee, and other senators said they were concerned about the decision and pledged to grill Sotomayor about it at her confirmation hearings, which begin July 13.
The panel’s reasoning, Sessions said, “would eviscerate the 2nd Amendment in many parts of the country.”
Democrats and gun control groups argue, however, that Sotomayor and the other members of the panel were following a restrained approach to the case by declining to rule on an issue the Supreme Court has yet to take up. Sotomayor “properly followed precedent,” said Daniel Vise, a lawyer with the Brady Campaign to Prevent Gun Violence.
If confirmed, Sotomayor could end up hearing the very issue she considered in the 2nd Circuit case. The high court probably will consider the question as early as next term.
Sotomayor is the first nominee since the high court’s gun rights decision, and she is likely to be asked about her fidelity to that ruling in much the same manner that other nominees have been quizzed about respecting Roe vs. Wade, the seminal abortion rights case.
Gun rights “are now up for grabs in the court, so it brings a whole new constituency to this fight,” said Curt Levey, executive director of the Committee for Justice, a conservative group. “This could become a tough vote for red-state Democrats because they don’t want to be on the wrong side of the 2nd Amendment.”
Gun control and the 2nd Amendment are lightning-rod issues that Democrats would just as soon avoid. Seizing on that, Republicans during this session of Congress have brought up gun rights whenever possible.
The GOP criticism of Sotomayor centers on the three-judge ruling that upheld New York’s law forbidding the use or possession of a popular gang weapon known as a nunchaku, saying, “It is settled law . . . that the 2nd Amendment applies only to limitations the federal government seeks to impose on this right,” they said, citing an 1886 Supreme Court ruling.
Sessions said Wednesday that the panel went out of its way to make its views on the 2nd Amendment clear, saying Sotomayor used language “that was not necessary to decide the case in front of her.”
On June 2, the U.S. 7th Circuit Court of Appeals took the same tack in upholding a ban on handguns in Chicago. In April, however, the U.S. 9th Circuit Court of Appeals in San Francisco said that gun possession is a fundamental right under the Constitution.