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Judge John Roberts on Second Amendment
Washington Post ^ | 9-14-2005 | Russ Feingold and John Roberts

Posted on 09/15/2005 7:12:34 PM PDT by Dan from Michigan

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?

(Excerpt) Read more at washingtonpost.com ...


TOPICS: Government; News/Current Events
KEYWORDS: banglist; issues; johnroberts; roberts; robertshearings; scotus
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To: Bloody Sam Roberts

...I can't believe an elected official had the gall to say that in public...

I groaned when I read that too. If that wasn't an invitation for the court to step in, I don't know what is.

The funny thing is I agree with him. The Court should get involved and throw out every $%^#$ gun restriction law on the books.

But that is not where Fiengold was going here. He is suggesting the court should look at the collective vs indivdual argument, which is a non starter to anyone who understands what the 2nd Amendment is there for. It could not be any clearer.


121 posted on 09/16/2005 10:03:29 AM PDT by planekT (What a mess.)
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To: steve-b
steve-b said: "The court sidestepped this issue [collective vs. individual right], ..."

Here we disagree completely. The court discussed "who is the Militia" and found no reason to exclude Miller. They could have refused to consider the case on "standing" which I believe is one of the first tests that a case must pass.

The court will refuse to hear cases from parties which lack standing because they do not wish to make rulings based on the circumstances of parties who are not affected by their decisions. The prosecutors who appealed the lower court decision could have counseled the Supreme Court to deny cert on standing grounds, but I see no indication that they did so.

122 posted on 09/16/2005 11:03:47 AM PDT by William Tell
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To: Dead Corpse

Fair enough, but could you explain for me how registration or training would violate the 4th or 5th amendment?

The 4th protects you from unreasonable search and seizure of property, and the requirement for warrants for search and seizure. So for registration or training to violate the 4th, you would have to define them to be unreasonable, it would seem. I fail to see that registration or training would be unreasonable. You still would have the right to own a gun, and its not being taken from you, so it doesn't appear to be a violation of the constitution. Now using registration records to seize guns is *clearly* unconstitutional unless you have probable cause to believe that weapon was used in a crime.

As for the 5th, the only portion I see that could remotely be used to argue against registration or training would be the clauses requiring due process of law and preventing private property from being taken for public use without compensation. Again, the arguments seem to fall short, for registration and training can easily fall within due process, as that can be defined as "legal judgement of peers" - which if the peers decide registration and training are required, you are afforded. Furthermore, registration and training does not result in the taking of private property for public use, so that falls flat.

I still don't see how either registration or training would violate the 4th or 5th amendment. Note that I'm not arguing that they are necessarily effective or needed - just that they don't appear to be unconstitutional.

And I certainly agreed with your point on peoples' abilities to drive safely (I said as much in the previous post). I nearly got into a wreck yesterday when someone turned left from the far right lane at a stop light, clear across 3 lanes of traffic, with not so much as a signal.


123 posted on 09/16/2005 11:07:00 AM PDT by eraser2005
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To: Pirogue Captain

"Honestly, registration has always lead to confiscation. "

Which is exactly the point people should be making to argue against gun control (though I do get tired of everything being a "slippery slope"). The fact a law may be useless or lead to bad results further down the line does not make it unconstitutional....


124 posted on 09/16/2005 11:10:08 AM PDT by eraser2005
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To: steve-b
steve-b said: This "nukes and nervegas" argument is easily disposed of by noting that the term "arms" (as understood by the drafters of the Amendment) clearly refers to the sort of weaponry carried by an ordinary soldier or officer in the field. "

I think that you narrow the protection needlessly. I see no indication whatever that our Founders meant to limit the arms protected. Private individuals could and did own the equivalent of warships at the time of our nations founding and the Constitution includes mechanisms for permitting the use of such arms during time of war.

The "arms" used to expel the government's navy from Boston Harbor were "stolen" from Fort Ticonderoga, a government stronghold, by the "militia" consisting of non-government rebels, and were dragged through the winter snows to surround Boston. To suggest that future generations would have no protection for owning such arms and would have to steal government arms is to misunderstand completely what our Founders had to accomplish.

It may be reasonable today to limit the arms, but it should require a Constitutional amendment to create such limitations.

125 posted on 09/16/2005 11:14:09 AM PDT by William Tell
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To: XavierLarry
we the people have certain rights as human beings which no gov't can give

I hope you keep on posting on this site.

I'm tired of the folks who wait for the US Supreme Court to tell them which rights they have been granted.

The US Constitution limits the power of the government. It does not grant us rights. Our alienable rights were granted by a Higher Power when we were created.

126 posted on 09/16/2005 11:20:22 AM PDT by george wythe
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To: BCR #226
BCR #226 said: "Unfortunately, because of the poor wording of the decision, the anti's try to use it and it is misrepresented quite often. "

I disagree completely. The wording of the decision makes it quite clear that "every male physically capable of acting in concert for the common defense" was expected to appear carrying his own arms. That very clearly included Miller. The "collective right" was invented as a smokescreen by lower courts to hide the facts of the ruling, but the ruling is not badly worded. I believe that later courts wanted to support the "collective rights" interpretation but there was no way to rule on a relevant case without revealing the lies of the lower court.

What was badly decided by the Miller court, was that the Second Amendment includes some implied limitation based on the Militia clause.

A well-educated electorate being necessary to the continuance of a free country, the right of the people to keep and read books shall not be infringed.

The sentence above does NOT suggest that there is only one reason for the right, and it does not suggest that the government gets to decide which books are protected and which aren't, and it does not suggest that only voters are protected. The Supreme Court invented a "use" test but all they really needed was a definition of "arms" and "people".

127 posted on 09/16/2005 11:29:09 AM PDT by William Tell
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To: XavierLarry

Excellent post. Welcome to FR.


128 posted on 09/16/2005 11:29:59 AM PDT by I got the rope
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To: planekT
It could not be any clearer.

Exactly. It is perfect as written and should not be open for interpretation.

As for all the $%^#$ gun restriction law on the books....all I can say is..."What part of 'shall not be infringed' is unclear?"

129 posted on 09/16/2005 11:31:07 AM PDT by Bloody Sam Roberts ("Gentlemen. You can't fight in here. This is the War Room!")
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To: eraser2005
eraser2005 said: "The question isn't whether or not registration or training helps - its whether or not its a violation of the second amendment. "

The courts have invented tests which they apply to regulatory schemes based on the area being regulated. Driving a car, or its Founding era equivalent of driving a cart or piloting a ship, is an activity which can reasonably benefit from regulation without infringing a protected right.

The lowest level of "test" only requires the slightest possibility that a regulation might be useful. The regulation needs to be unambiguous and needs to pass, probably, some degree of due process so that people can understand the law and obey it. There are not many laws which fail to meet this test.

When examining a law which attempts to regulate a protected right, the courts will use a "strict scrutiny" test. This, I believe, is the most restrictive test. When this test is applied, the regulations must meet several criteria. One is that the regulation must be the least intrusive. If there is some other less intrusive way to accomplish the purpose, then the regulation cannot stand. Most importantly, the purpose of the law must be met by the law. It IS the burden of the government to demonstrate that there is value to the law.

Most of these judicial processes were worked out during the civil rights era and applied to such things as poll taxes and poll tests. Any benefit that such regulations might achieve were found to be completely outweighed by the right of people to elect their own representatives.

Here in the People's Republic of Kalifornia, I have helped with an initiative drive attempting to add a "right to keep and bear arms" to the Kalifornia Constitution. At the time of Kalifornia's founding, the people "in charge" had little desire to mandate that people of spanish or native American descent have an enforceable right to keep and bear arms.

The language of the proposed amendment spells out that every limitation to the right must meet the criteria of "strict scrutiny". It just isn't practical to list every hare-brained anti-gun law on the books or attempt to exclude every possible future law. The term "strict scrutiny" requires the government to prove the usefulness and limited invasiveness of every gun law.

What about my question regarding the registration of your books. There might be some usefulness to such a thing, you know. The Patriot Act includes the ability to search library records, I believe. We are already on the slippery slope. Have a nice ride.

130 posted on 09/16/2005 11:59:42 AM PDT by William Tell
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To: eraser2005
Ah... so if a person fails to register themselves, or pass some bureaucrats idea of what competence is, then they lose their Rights?

You do know what a Right is don't you? A simple litmus test is, if you don't have to ask anyone else's permission, it's a Right.

As for how the 4th and 5th apply... My papers, including licenses, are MY property. Admitting that the government has a just power to control my Right to Keep and Bear Arms violates self incrimination. Do reporters need to be licensed for free speech? Do you need training to worship your God?

Get real...

131 posted on 09/16/2005 12:11:40 PM PDT by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be. -El Neil)
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To: William Tell
Read the individual state constitutions to get a better feel of the 2nd amendment. Each of the original states was told to draw up their own constitution prior to the Federal Constitution and I believe they all contain a Right to Bear Arms clause. The Bill of Rights was added to the Federal Constitution to serve all people within or without a state.

I look to Tench Coxe as the person who wrote the best interpretation on the subject,

132 posted on 09/16/2005 3:38:17 PM PDT by Sacajaweau (God Bless Our Troops!!)
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To: 1Old Pro

I'd just love to have a pair of colt six-shooters on my hips...just like when I was a kid.


133 posted on 09/16/2005 3:42:33 PM PDT by Sacajaweau (God Bless Our Troops!!)
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To: Bombardier
If he can't come right out and say it's individual, then I'm not prone to trust him.

He can say it, he is just to smart to say it during the confirmation hearings.

134 posted on 09/16/2005 8:22:57 PM PDT by msnimje (Cogito Ergo Sum Republican)
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To: XavierLarry
I would still take any 100 Freepers out of a hat for the Senate and we'd be far better off.

Well...sinkspur and all. Careful there.

135 posted on 09/17/2005 7:13:16 PM PDT by Lester Moore (islam's allah is Satan and is NOT the God of Abraham, Isaac and Jacob.)
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To: Dan from Michigan
States have powers, individuals have rights, in America that is. The "collective rights" theory of the RTKABA is just so much hs, it should be laughed at. Every other right acknowledged in the BOR's is an individual right except the RTKABA? LOL, only in commieville.

I can't speak for collectivist countries that hand out collectivist rights and wrongs at their collectives.

136 posted on 09/18/2005 4:42:34 PM PDT by jwalsh07
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To: William Tell

You are correct but if you read the Miller case, the wording suggests that the basis of the individual right to the 2nd Amendment is based on "weapons of the type of military service." This leaves out quite a large group of firearms types but ironically includes the guns that Congress in it's infinite lack of wisdom decided to ban in 1986. Go figure.

Mike


137 posted on 09/19/2005 4:07:17 AM PDT by BCR #226
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To: BCR #226
BCR #226 said: You are correct but if you read the Miller case, the wording suggests that the basis of the individual right to the 2nd Amendment is based on "weapons of the type of military service."

Yes, and I think that this aspect of Miller is entirely wrong for the reason I stated.

What would be interesting to know is what the "remand" in Miller actually did. This would appear to be a direction to the court of initial jurisdiction to try the case rather than dismiss on Second Amendment grounds.

Then it would appear that the prosecution, not the defense, would have the burden of proving that one element of the crime, that is possessing a weapon that is NOT of use to the Militia, had been committed. I don't see how the burden could fall on the defense.

138 posted on 09/19/2005 9:46:40 AM PDT by William Tell
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To: William Tell

That's an excellent point. The onus of proof is supposed to be on the accuser not the defendant. Can this possibly be reviewed by the USSC again since that the decision is somewhat confusing to some and for the reason that the defense had no representation?

Mike


139 posted on 09/19/2005 2:55:05 PM PDT by BCR #226
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To: Aetius
"I'm shocked that Feingold claims to believe in the correct 'Indivivual right' interpretation."

Howard Dean of all people supports gun rights. I haven't seen his position recently but back when he was running for the nomination he seemed to be fairly strong on 2nd A rights. Extrememly strong for a damned democrat.

140 posted on 09/19/2005 3:08:19 PM PDT by muir_redwoods (Free Sirhan Sirhan, after all, the bastard who killed Mary Jo Kopechne is walking around free)
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