Friday, September 16, 2005

Judge Roberts and Sen. Russ Feingold discuss Second Amendment

First, I'd like to thank the Post for posting transcripts from the hearing online. I can only take so much CSPAN due to the self-important blowhards and drama queens/kings in the US Senate. (cough Joe Biden Cough) Second, thanks to Henry Bowman at the High Road for the heads up

From the Washington Post

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.


Actually Mr. Feingold is incorrect here. Guncite is a well referenced database on the Second Amendment and gun control issues and has the full text of US v Miller here. It did not mention "collective right". Some courts, specifically the 9th circuit argue that Miller held it as a "collective right", but not US vs Miller itself. Miller held that the weapon (short barrelled shotgun which is a Class III firearm) itself was not a militia weapon. Mr. Miller died so he could not defend his case.

Back to the transcript:

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.


I'm glad to see Roberts correct Feingold on Miller. It shows he at least competent enough to understands it.

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.


Judge Roberts did not flat out say that it is an individual right. He can not prejudge his cases before an appointment to the court. That said, I am cautiously optimistic about him. I don't expect an Alex Kozinski, but I will settle for another Judge Rehnquist, whom I suspect Roberts will emulate.

6 comments:

true believer said...

What actions are you referring to when you say there are a number of actions that legislatures should not take to restrict gun use? Unless we are felons don't all people who live in the United States of America have the right to bear arms if they are over 18 years of age?

I thought we all had this right.

Republican Michigander said...

""Unless we are felons don't all people who live in the United States of America have the right to bear arms if they are over 18 years of age?"""

They may have the right, but it has been taken away in many municipalities. There are also hundreds and thousands of restrictions between federal, state, and local laws.

By federal law, every purchaser from a FFL (Gun Dealer) needs to go through a background check to make sure I'm not a felon or convicted of a domestic violence misdemeanor.

Chicago (and many suburbs), Washington DC, and New York City all have total handgun bans. Shotguns and rifles are severely restricted there as well. I believe California can ban guns on the whim of the attorney general. Massachusetts, Maryland, New York State, Illinois, and Hawaii have very strict laws. Alaska and Vermont are the most lenient. Michigan in somewhere in the middle.

Many types of firearms are banned (depending on the state). Nationwide, full automatics and sawed off shotguns, and some other types are considered Class III firearms. It's been awhile since I've looked up Class III law, so I'm not 100% sure on the specifics. In 1934(?), those firearms were taxed, and those who wanted to own them needed a special federal license, and needed permission from the sheriff to own them. In 1986, under a compromise bill, manufacture of Class III firearms were banned, and many of the strong infringements of Thomas Dodd's 1968 gun control bill were repealed (interstate travel restrictions on firearms).

In Michigan, most of our gun laws on pistols date back to the 1920's. Pistols are registered, I mean "safety inspected." State law on longguns are the same as federal. Class III firearms are not allowed due to an AG opinion by Frank Kelly.

true believer said...

Well it just doesn't make sense that we can't have full automatic weapons or sawed off shotguns! If I am 18 and not a felon I should be able to own the weapon of my choice. I personally believe in background checks or just change the law.

AuH2ORepublican said...

Did I read that right and Judge Roberts said that Feingold supported viewing the 2nd Amendment as an individual (not collective) right? I would have never guessed that the otherwise-ultraliberal Feingold was pro-gun.

I think conservatives will ignore a possible Feingold presidential candidacy at our own risk.

Republican Michigander said...

Feingold is a weasel on this issue. While he voted against the ugly gun ban, he voted to ban centerfire ammunition (.30-30 ban) which is even worse.

That said, he has a much more pro-gun IMAGE than most democrats, and could be an outside threat. The Daily Kos crowd loved him, as one of our Kos guests, Mr. Lane, complained to me about not including him the presidential poll. (I would have if I had room).

One thing I do respect Feingold for - he's the only one to vote against the Patriot Act, which was gutsy, and IMO the right thing to do.

true believer said...

Freedom is what we fight for and the Patroit Act takes away our Freedom.

Conservatives shouldn't have to ignore the consequences of the patriot Act.