LOTT: Sotomayor and guns

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By John Lott

COMMENTARY:

During the presidential campaign, Barack Obama went to great lengths to convince everyone he was a strong defender of the Second Amendment. He disowned or denied a long list of anti-gun positions and told us time and time again to trust him, that he really did believe the Second Amendment protected an individual right.

Was he simply catering to public opinion? The latest poll from Opinion Research found last month that 77 percent of Americans think "individual Americans [have] the right to keep and bear arms for their own defense."

Whatever Mr. Obama's true conviction, Judge Sonia Sotomayor, his pick for the Supreme Court, does not view the Second Amendment as guaranteeing an individual right. Yet media from the Los Angeles Times to The Washington Post think they have the proof she is not an "anti-gun radical."

Their logic goes something like this: Last week, a three-judge panel of Republican-appointed judges on the 7th Circuit Court of Appeals found that the Second Amendment limits only federal gun laws, not state laws. Because Judge Sotomayor was being criticized for sitting on a panel that reached a similar decision and these Republicans can't be "anti-gun," neither can Judge Sotomayor.

But the media are either unable or unwilling to read beyond who won the 2nd and 7th circuit cases and the most basic parts of the decisions. Both panels said it really was up to the Supreme Court to apply the Second Amendment to the states. Yet Judge Sotomayor's panel tried to eviscerate the recent Supreme Court decision that had struck down the District's gun ban even for federal laws.

To her panel, the Second Amendment would not block any gun-control laws as long as the politicians passing the laws thought the weapon was "designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill." With that interpretation, the Supreme Court never could have struck down the D.C. gun ban, let alone any other gun-control law.

That Judge Sotomayor would make such an argument less than a year after the Supreme Court's decision in the District of Columbia v. Heller means she would vote to return the D.C. gun ban the first chance she got. For those who have any remaining doubts, in a 2004 decision, U.S. v. Sanchez-Villar, Judge Sotomayor ruled "that the right to possess a gun is clearly not a fundamental right."

Judge Sotomayor's nomination isn't just about the judge's beliefs. It also tells us that no matter how much he protests, Mr. Obama's views on guns are out of sync with those of the vast majority of Americans.

John Lott is a senior editorial writer for The Washington Times and a senior research scientist at the University of Maryland.