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A legal shootout over the right to own a gun

Conflicting court opinions gun may result in linking the 2nd Amendment with the 14th.

June 10, 2009

Two federal appeals court opinions -- one signed by Supreme Court nominee Sonia Sotomayor -- have created a quandary for those who cherish the protections of the Bill of Rights and also believe in meaningful gun control. But the way out of the dilemma is not to urge the high court to pick and choose which constitutional rights are protected against state and local laws.

Among the charges leveled by some conservatives against Sotomayor is that she has been insufficiently protective of the 2nd Amendment, which says that "the right of the people to keep and bear arms shall not be infringed." Exhibit A was the judge's role in a decision by the U.S. 2nd Circuit Court of Appeals ~jmm257/000-decision.pdf upholding the constitutionality of a New York state law banning the possession of nunchucks.

Sotomayor and two other judges ruled that the 2nd Amendment applies only to the federal government, a long-standing view that the Supreme Court didn't address when it struck down a gun control law in Washington, D.C., last year. In legal jargon, the high court hasn't explicitly "incorporated" the 2nd Amendment in the 14th Amendment, which protects "liberty" against state interference. Other amendments long have been incorporated, making it possible to sue the states for violating many of the protections of the Bill of Rights.

Using the 2nd Circuit decision to portray Sotomayor as an opponent of gun rights became harder last week when two of the nation's most prominent conservative judges issued an opinion espousing the same view. The opinion for a three-judge panel of the U.S. 7th Circuit Court of Appeals was written by Judge Frank Easterbrook, a President Reagan appointee. The justices may soon address the incorporation question in order to resolve a conflict between the position taken by the 2nd and 7th circuits and the opposite view adopted by the San Francisco-based U.S. 9th Circuit Court of Appeals.

It's tempting for supporters of gun control -- including this page -- to hope that the high court will rule that the 2nd Amendment doesn't apply to the states. That would be a mistake and would give aid and comfort to conservative legal thinkers, among them Justice Clarence Thomas, who have questioned the incorporation doctrine.

We were disappointed last year when the Supreme Court ruled that the right to keep and bear arms was an individual right, giving short shrift to the first part of the amendment, which refers to "a well-regulated militia." But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights. If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms.

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