(Corrects in story that moved June 2 the reference to how 9th Circuit ruled in 12th paragraph.)

June 2 (Bloomberg) -- Judge Sonia Sotomayor’s best defense against firearms owners mobilizing to oppose her U.S. Supreme Court nomination may come from an unlikely source: two top conservatives on the federal bench.

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

Today, Richard Posner and Frank Easterbrook, appointed to the 7th U.S. Circuit Court of Appeals in Chicago by President Ronald Reagan, took the same hands-off as Sotomayor. They joined a 3-0 ruling that upheld weapons ordinances in Chicago and suburban Oak Park, Illinois, and rejected challenges by gun rights advocates.

“The Supreme Court has rebuffed requests to apply the Second Amendment to the states,” Easterbrook wrote for the three-judge court.

In its ruling last year on the Washington handgun ban, the Supreme Court said the Second Amendment protects an individual’s right to bear arms against regulation by the District of Columbia and the federal government. Previously, the high court had recognized only a collective right to bear arms applied by state militias.

“It’s nice to have two leading conservative judges” for support, said Washington lawyer Patricia Millett, a Supreme Court specialist. It “will really take the steam” out of accusations Sotomayor, 54, is hostile to gun rights, she said.

Private Meetings

Sotomayor began meeting individually in private today with senators in preparation for hearings on her confirmation. No date has been set for the hearings.

Posner and Easterbrook are leaders of the so-called law and economics school of thought that espouses free-market principles to help resolve legal questions.

They signaled in court arguments last month that their ruling today would say it is up to the Supreme Court -- not appellate judges -- to extend the Constitution’s Second Amendment protection for gun owners to the states.

Sotomayor, a judge on the 2nd U.S. Circuit Court of Appeals in New York, likely will face questions on gun rights when the Senate Judiciary Committee holds hearings on her high court nomination by President Barack Obama to replace retiring Justice David Souter.

An Important Footnote

The Supreme Court said in a footnote to its 5-4 ruling in the Washington case that it didn’t decide whether the Second Amendment binds the states as well as the federal government and the District of Columbia.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor. Still, the 9th Circuit dismissed a challenge to an Alameda County ordinance that bans guns from county property, saying the law was a reasonable regulation.

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position” and those of Posner and Easterbrook, “is far more in the mainstream,” Tushnet said in an e-mail.

‘Promising Ammunition’

Republican strategist John Ullyot said in an e-mail, “Gun rights is emerging as the most promising ammunition” for Republicans to attack Sotomayor’s nomination. He declined to say how much political traction the issue will provide.

Sotomayor’s position “speaks to her judicial philosophy,” said Erich Pratt, spokesman for the 300,000-member Gun Owners of America, based in Springfield, Virginia. “We plan to be very involved.” The group on its Web site urged members to contact senators.

The 2nd Circuit panel that included Sotomayor ruled in January in a case involving numchucks, or martial-arts sticks. A New York law bans them as dangerous weapons.

In a brief, unsigned opinion, the panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

The Citizens Committee for the Right to Keep and Bear Arms said on its Web site that Obama nominated Sotomayor to “stack courts” with gun-control advocates.

‘Serious Concerns’

So far, the National Rifle Association, the largest gun- rights organization in the U.S., hasn’t taken a position.

“We have questions and we have serious concerns,” said NRA spokesman Andrew Arulanandam.

It was the Fairfax, Virginia-based group’s challenge to gun-control laws in Chicago and Oak Park that prompted today’s ruling by the appeals court in Chicago that includes Easterbrook and Posner. When the case was argued, the two judges peppered NRA lawyers with questions about why the case shouldn’t be thrown out.

“I don’t see how you can get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions,” Posner said at the May 26 argument.

In the 7th Circuit’s opinion, Easterbrook wrote that, if an appeals court ignores a Supreme Court decision “by identifying and accepting one or another contention not expressly addressed by the justices,” high court rulings would “bind only justices too dim-witted to come up with a novel argument.”

Today’s ruling likely will be cited by Sotomayor and her defenders to blunt criticism she showed hostility to gun rights.

It shows Sotomayor “did what the good judge should do: respect the authority and hierarchy of the federal court system,” said Neil Siegel, a former Democratic staff counsel to the Senate Judiciary Committee who teaches at Duke University law school.

Calling Sotomayor a judicial activist based on the weapons case takes that label and “stands it on its ear,” Millett said.

To contact the reporter on this story: James Rowley at jarowley@bloomberg.net

Last Updated: June 8, 2009 13:43 EDT