John Roberts on America's First Freedom

Russ Feingold questioning John Roberts on the Second Amendment

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.

Category:  Cold Dead Hands
Comments (5)      top   link me


Would have been nice if he'd tipped his hand a bit about where he stands on this, although I understand why he doesn't until he's in.

Posted by: Pasty at September 15, 2005 6:40 AM

I think he did tip his hand, in that he was sufficiently familiar with Miller enough to repudiate the VPC/Brady distorted interpretation of Miller by saying

"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."

It's also nice to see the 2nd amendment even being brought up in a confirmation hearing...when was the last time that happened?

Posted by: geekWithA.45 at September 15, 2005 10:16 AM

It is only brought up because the democrats know just as little as we do about our candidate. Put in a liberal-thinking judge and they'll do everything they can to keep the issue from being brought up.

Posted by: Rhett at September 15, 2005 2:28 PM

If I had the opportunity to ask: 1) The world would be absolutely frightened that someone like me could ever be elected to the Senate, and 2) I would have made some long comment about the importance of the 2A as an individual right and then ended with, "So what do you say we take a trip to the range after this?" It could be entertaining and informative.

Posted by: Bitter B. at September 15, 2005 3:26 PM

Anyone who supports the second amenment will be opposed by the demacrats we should know just what a bunch of scoundrels the demacrats are and ted kennedy is the biggists scoundrel around

Posted by: screaming eagle at September 15, 2005 3:54 PM

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