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The Washington Post wrote: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.
"Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States." ~ McDonald v. Chicago
When your only tools are a hammer and sickle, every problem starts to look like too much freedom.
I wonder if Mr. Roberts or Feingold has read the justice departments study on the second amendment,that found an uneqivocal right of individuals to keep and bear arms.
Wayne wrote:I wonder if Mr. Roberts or Feingold has read the justice departments study on the second amendment,that found an uneqivocal right of individuals to keep and bear arms.
If he's found an "unequivocal" right to keep and bear arms, he's not much of a lawyer and certainly not qualified for a seat on the Supreme Court. Such things as constitutionally protected rights tend very much not to be "unequivocal", but rather need an adequate and responsible elucidation, much as the rights of freedom of speech and freedom of the press have had.
The paper on the Second Amendment was done years ago by, I think, David Kopel for Senator Orrin Hatch during the Reagan administration (I may well be mistaken on several of these details -- I've not stopped to look anything up). This amounts to something like an Attorney General's Opinion: it may be considered by the justices, but it does not carry the force of law.
I have my views on the Second Amendment and surely wish them to prevail. Yet at the same time I have to recognize that there are a variety of views, all of which need to be studied and addressed. One of the great limitations we have suffered in regard to the Second Amendment is that it has not been visited by the court in any sort of depth or detail and, as a result, much is left in the realm of conjecture.
TunnelRat
"Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States." ~ McDonald v. Chicago
When your only tools are a hammer and sickle, every problem starts to look like too much freedom.
The NRA-ILA Factsheet wrote:On December 17, 2004, the U.S. Department of Justice published an exhaustive Second Amendment memorandum.
Okay, this is a new one. I was thinking about the one done many years ago. Of course, it reaches the same conclusion. It is amazing how the results change when there is a Republican administration...
The NRA-ILA Factsheet wrote:It concludes without reservation that "the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units."
Unfortunately, the NRA-ILA Factsheet also wrote:Some claim that banning only certain firearms does not constitute an infringement of Second Amendment rights
Which does indeed help to clarify my point that this issue needs more adequate litigation....
TunnelRat
"Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States." ~ McDonald v. Chicago
When your only tools are a hammer and sickle, every problem starts to look like too much freedom.
In fact, if one takes the "Miller" case through to its logical conclusion, we should all have unrestricted access to military-pattern selective-fire weapons... (Works for me.)
Total repeal of ALL firearms/weapons laws at the local, state and federal levels. Period. Wipe the slate clean.
NavyChief wrote:In fact, if one takes the "Miller" case through to its logical conclusion, we should all have unrestricted access to military-pattern selective-fire weapons... (Works for me.)
Indeed, that has long been my take on "Miller". To bad our moon shinin' friend didn't show up for the retrial...
TunnelRat
"Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States." ~ McDonald v. Chicago
When your only tools are a hammer and sickle, every problem starts to look like too much freedom.
You gotta figure. This guy is getting grilled in preparation for taking a seat on the Supreme Court. I would expect some of his answers on hot issues like guns, abortion and so forth to be a bit ambiguous. He's gonna be darned of he does and darned if he doesn't.
Although this is not likely, I hope the U. S. Supreme Court never rules on the ultimate issue, i.e., whether the Second Amendment is an individual or collective right, or whether it applies only to militias. It's too much of a crapshoot. Also, in Arnold v. Cleveland (as cited in Klein v. Leis),"...As long as state courts provide at least as much protection as the United States Supreme court has provided in its interpretation of the Federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections (under state constitutions)..." That state constitutions may afford greater protections that the federal constitution is I believe, to use a popular expression, "well settled law." I'll take the Ohio Constitution's clear statement in Article 1, Section 4 over a risky opinion issued from "The Supremes" (of the United States). Be careful for what you wish for you may get it.
(Works for me.)