All of the Circuits, and SCOTUS too, are mired in a legal fabrication that none will admit. The legal fabrication (actually, two of them) revolve around past SCOTUS precedent, Presser and Miller. The instant Sotomayor / 2nd circuit "big lie" has to do with Presser.
SCOTUS in Presser v. Illinois: "... the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms ..."
2nd Circuit, in Bach v Pataki: "Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states." cert. denied, 546 U.S. 1174 (2006)
I think the nominees should be asked to "brief the case," as a law student would, for Miller and Presser. What were the fact of the case? What was at issue (in Presser, it was whether there is a constitutional right to parade without a permit)? What was the decision below (in Miller, the decision below was that Miller's indictment was quashed and the 1934 NFA was found unconstitutional - but in Heller, Scalia says Miller was convicted, and the Supreme Court upheld the conviction). What was the outcome? What rationale was used to reach that outcome?
If a judge cannot properly "brief" or summarize an easy case - and this activity does not involve a value judgement as to whether the case was rightly decided - then they have no business being on the bench. Not on ANY bench.
Dicta.
The holding in Presser is not friendly to RTKABA folks.
Like me.