- The Washington Times - Sunday, June 14, 2009

Gun rights groups said attempts by Supreme Court nominee Sonia Sotomayor to defuse a showdown on Second Amendment rights have done little to assuage their concerns.

Gun Owners of America is actively lobbying against Judge Sotomayor’s confirmation, but the National Rifle Association has yet to take a position.

The way the NRA chooses to go could have consequences for moderate to conservative Democrats who helped their party develop a staggering advantage in the Senate.

“All options are on the table,” said Andrew Arulanandam, NRA spokesman. “The rulings she has made are troubling, and concern us.”

Whether the NRA includes the Sotomayor vote on its scorecard - a possibility Mr. Arulanandam did not rule out - could weigh heavily on Senate Democrats up for re-election in 2010, including Senate Majority Leader Harry Reid.

Judge Sotomayor on Tuesday told Sen. Jim DeMint, South Carolina Republican, she could not comment on an expansive definition of the Second Amendment. On Thursday, she hurried to put out the fire by explaining to Sen. Mark Udall, Colorado Democrat, that her stance was predicated on “settled law,” including last year’s Supreme Court ruling that overturned the decades-old D.C. gun ban.

Gun issues have been an area where moderate to conservative Democrats have been more than willing to side with the Republican minority. Oklahoma Sen. Tom Coburn’s amendment to adopt concealed-carry laws in national parks won inclusion with the help of 27 Democrats who crossed the aisle to support the measure.

Senate Democrats looking to expand their 19-seat majority in the Senate, including a Minnesota seat still unresolved, have ample opportunity in the 2010 elections but also will defend seats in key states, such as Mr. Reid’s in Nevada.

Shortly after President Obama nominated Judge Sotomayor, Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, issued a glowing assessment of the nominee, but stopped just short of an endorsement.

“I’m a little surprised the NRA is taking a ‘wait-and-see’ approach - they’re having their board members come out and attack her,” Mr. Helmke said last week.

Mr. Helmke said it’s hard to determine Judge Sotomayor’s standpoint on gun control because as an appellate judge she was constrained by the Supreme Court’s ruling in the D.C. gun case and precedents set in the late 1800s that have long stood as the judicial benchmark on gun rights.

While Judge Sotomayor has not said outright what her stance is on gun control, she ruled last year that the Second Amendment right to bear arms does not automatically transfer to the states - a decision gun-control opponents have read as a clear stance on the issue.

“Stating the obvious that Heller [the D.C. gun case known as District of Columbia v. Heller] is settled law doesn’t tell us much,” Mr. DeMint said. “What’s more important is that Judge Sotomayor has recently ruled that Heller only applies to federal lands like Washington, D.C., and her opinion was that the hundreds of millions of Americans in the 50 states do not have a fundamental right to bear arms. She refused to back away from that opinion in my meeting with her this week.”

Judge Sotomayor ruled against a man possessing nunchakus (or “nunchucks”) as part of a three-judge panel last year. In the ruling, which was unsigned, the panel determined that while the Supreme Court struck down the D.C. gun ban, its rationale did not expressly extend the Second Amendment right to bear arms to the states.

Earlier this year, the Seventh Circuit Court of Appeals ruled comparably in a lawsuit seeking to strike down Chicago’s ban on handguns. The three-judge panel reached a similar conclusion as the Sotomayor panel, saying that the Supreme Court determined the Second Amendment right to bear arms is applicable only on federal land - including the nation’s capital.

But a panel of the Ninth Circuit Court of Appeals ruled recently that the Second Amendment right to bear arms does extend beyond federal jurisdictions to the states, creating a “circuit split” among the federal appeals courts that could lead to the Supreme Court reviewing any or all three cases in its next session.

Gun Owners of America has had little hesitation in lobbying Democratic and Republican senators to oppose Judge Sotomayor’s confirmation, arguing that previous votes in favor of gun rights pale in comparison to their upcoming Supreme Court vote.

“We’re conveying on the Hill that this is the big one, anything you might have done in the past was wiped clean,” said Larry Pratt, executive director of Gun Owners of America.

“We want Republicans deciding they’re going to fight this. This needs to be something that goes on the record,” he said.

Mr. Helmke said he doesn’t see a knock-down, drag-out fight over the Sotomayor nomination, but that if Second Amendment questions become a problem, his group will join the fray.

“We might take a more active role if it looks like she’s going to be contested,” he said.

• Tom LoBianco can be reached at tlobianco@washingtontimes.com.

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