Roberts on the second amendment
And Feingold too. Just quoting for now, check it:
FEINGOLD: Let’s go to something else then. I’d like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there’s a real shortage of jurisprudence.
You mentioned the Third Amendment where there’s even less jurisprudence, but the Second Amendment’s close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.
The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.
FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.
In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.
The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.
So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?
ROBERTS: Yes. Well, I mean, you’re quite right that there is a dispute among the circuit courts. It’s really a conflict among the circuits.The 5th Circuit — I think it was in the Emerson case, if I’m remembering it correctly — agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.
The 9th Circuit has taken a different view. I don’t remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.
In other words, it’s only the right of a militia to possess arms and not an individual right.
Particularly since you have this conflict — cert was denied in the Emerson case — I’m not sure it’s been sought in the other one or will be. That’s sort of the issue that’s likely to come before the Supreme Court when you have conflicting views.
I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn’t address that. They said, instead, that the firearm at issue there — I think it was a sawed-off shotgun — is not the type of weapon protected under the militia aspect of the Second Amendment.
So people try to read the tea leaves about Miller and what would come out on this issue. But that’s still very much an open issue.
FEINGOLD: I understand that case could come before you. I’m wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?
ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That’s not expressing a view one way or the other. It’s just saying, I know the 9th Circuit thinks it’s only a collective right. I know the 5th Circuit thinks it’s an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts. So I do think that issue is one that’s likely to come before the court.
September 15th, 2005 at 8:10 am
[…] I mentioned Feingold asking Roberts about the second amendment, TriggerFinger notes that Feinstein asked about the commerce clause and guns (does the prefix Fein mean concerned with guns?). TriggerFinger has some concerns. […]
September 15th, 2005 at 8:19 am
Sounds like Feingold is serious about running for president. Now, if only he would recognize the first amendment as an individual right as well.
September 15th, 2005 at 9:28 am
Maybe I’m just not smart enough to understand nuance, but wasn’t that a pretty weasely answer? I mean, the question seemed straightforward enough: Do you think the 2nd amendment guarantees an individual right, or not?
Right?
September 15th, 2005 at 9:31 am
It was weasely. I guess they learned from Bork not to actually, you know, answer judicial questions.
September 15th, 2005 at 9:55 am
Definately a “politicians” answer. All he said (IMO) was “Yes, it’s an issue.”
He didn’t say which side he was going to take.
On one hand, I’d like to know which way a (potential) judge leans. But on the other, I realize that each case is different and a good judge will make a decision within the limits of the case brought before him or her. In the above-mentioned case, a judge could believe in singular or collective, but if the law specifies a certain firearm as illegal, the singular / collective issue is moot.
That’s just what I think – I could be wrong, but I never are.
September 15th, 2005 at 12:01 pm
He gave the right answer. Reading between the lines, he sees Emerson as offering weak protection for an individual right. It’s clear he regards this as open judicial territory where he wouldn’t be bound by much in the way of precedent.
I personally would like to see this issue clarified by the court. Win or lose, it’s good for the gun nuts. If the individual right triumphs, gunners win. If the individual right fails, gunners will be galvanized into action and keep their rights via the ballot box and legislatures.
This is an issue of much higher intensity and appeal for gun nuts than for gun grabbers. For gun enthusiasts, it’s a voting issue. For gun controllers, it’s just not that important. For every voter who supports gun control enough to vote on it, I can name five people willing to kill that voter.
Ultimately, this issue is a political loser for the left. The sooner they realize it, the better off we will all be.
September 15th, 2005 at 12:01 pm
A couple of weeks ago on FoxNews, Bork himself said Roberts shouldn’t answer questions like this, and the only reason Bork answered them on abortion was because he had to based on what he had written on the topic. So on all these topics, Roberts has been showing off his encyclopedic knowledge of how past cases have been decided, but has not dropped many clues as to how he would rule himself. I’m cautiously optimistic on this particular issue, though, based on the fact that he corrected Russ Feingold on the meaning of U.S. v. Miller. Most of the appellate judges who adopt the “collective rights” model argue that Miller compels it.
September 19th, 2005 at 12:48 pm
countertop:
I agree that Feingold’s getting serious about a run, but I don’t think he’s altering his position on guns for this purpose. As I understand it, his record has been pretty solidly pro-gun throughout his career.
March 13th, 2007 at 8:58 am
[…] didn’t take it then. But now we have some new judges and one of those (the chief justice) understands Miller. We’ll […]