Judge John Roberts on Second Amendment

Washington Post ^ | 9-14-2005 | Russ Feingold and John Roberts

[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?

[Aetius]

Dean and Feingold may be genuine in their stated belief that Americans have a right to own guns. Usually when Democrats say this they speak of the rights of'hunters and sportsmen', not of the right to own guns for self-defense. That never fails to attract my notice.

But as with so many things these days thanks to our imperious judiciary, it doesn't necessarily matter what one claims to believe. For example, Al Gore, John Kerry, and soon, Hillary Clinton can all claim to be against gay marriage and for letting the states decide, but at the same time there is no doubt that the type of judge they would nominate would be the type to impose it on the entire nation. Likewise, the types of judges supported by Feingold and Dean would be the type who view the Second Amendment as a meaningless collective right.

Now such a ruling would simply leave matters to be settled by Congress and the states, which would be fine as of now, but who knows what a future Congress might decide to do?

[FortWorthPatriot]

"I always preach that the Second Amendment, in effect, said "A well-equipped body of men between the ages of 18 and 40 . . .". I get some stunned looks."

I'm glad you mentioned that phrase because I'm a little confused. Surely the militia is not really limited to those men between the ages of 18 and 40 - I mean, if war were to break out here in the United States, I couldn't sit around and do nothing just because I'm 43.

And if you really think about it, the gun grabbers could take this and turn it around against us by saying, "Okay, you've just reached the age of 41 - you are no longer eligible to be in the militia, so you don't need that AR-15."

Shouldn't the age range be unlimited? Shouldn't it just say "above the age of 18"? Is this something anyone else has every thought about or am I just off my rocker?

[FortWorthPatriot]

"I always preach that the Second Amendment, in effect, said "A well-equipped body of men between the ages of 18 and 40 . . .". I get some stunned looks."

I'm glad you mentioned that phrase because I'm a little confused about it. Surely the militia is not really limited to only those men between the ages of 18 and 40 - I mean, if war were to break out here in the United States, I couldn't sit around and do nothing just because I'm 43 years old, and "by law" not eligible to be a member of the militia.

Think about it. If they really wanted to, the gun grabbers could take this obscure little phrase and turn it against us by saying, "Okay, Mr. So-and-So, you've just reached the age of 41 - you are no longer eligible by law to be in the militia, so you don't need that AR-15. Turn it in."

Shouldn't the age range be unlimited? Shouldn't it just say "above the age of 18"? Is this something anyone else has every thought about or am I just off my rocker?

[tet68]

He also went on to say that it addresses a sort of states right issue mentioning a "free state". Addressing as such "A free state". There were what? 13? at that time?

Yet what if the founders did not mean a "State" but a
state of freedom? It's so easy to interpret it as the
political body we have come to know but that may be wrong.

[LexBaird]

Typically, the term "well regulated" was understood to mean "properly functioning", as in a well regulated clock would keep time, a well regulated household would not have strife, and a well regulated militia would be properly trained.

[William Tell]

BCR #226 said: "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? "

That is why Roberts outlined the situation in his statement but refused to discuss any assessment that he might have made so far. The disagreement between the district courts is justification for a ruling from the Supreme Court. I said that I don't agree that Miller is sufficiently confusing to justify the "collective rights" nonsense of the Ninth Circus, but there is some confusion over what the Miller decision was really suggesting regarding the protection for some arms and not others.

Supreme Court decisions have invented "tests" of various sorts to manage the trade-offs involved when more than one person's rights are involved or when the government is attempting to regulate a protected area.

More important, perhaps, is the issue of "incorporation" of the Second Amendment using the Fourteenth Amendment.

Freedom of speech, for example, was enumerated in the First Amendment as a prohibition against Congress making any law. There was no protection against state laws. The Fourteenth Amendment was found to protect against state laws. The term "incorporation" describes the fact that the Supreme Court has found that the Fourteenth Amendment protects freedom of speech. At such time as some Supreme Court decision finds that the Fourteenth Amendment protects the right to keep and bear arms, then Kalifornia will find many of its onerous gun laws eliminated.

I hope I see this in my lifetime. Perhaps my future grandchildren will be named Thomas, Scalia, Roberts, Brown, and Owens.

[Atlas Sneezed]

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."

u"m, seems he said it loud and clear right there

---

Sorry, but this allows for all sorts of present and future infringements that are supported by the Dems, Bush (both) and others, such as John "Reasonable Restrictions" Ashcroft.

Lip service, while they are sustaining the sell-out of our rights.

[Atlas Sneezed]

Total BULL! Miller said no such thing. Miller said (paraphrasing) that short-barreled shotguns were not commonly used by the military, hence were not weapons protected by the 2nd Amendment. It certainly did not maintain that the RKBA is a collective right.

---

Miller is consistent with the proposition that there is an individual right to bear arms of any type useful for military purposes.

[Atlas Sneezed]

Let me take a stab at this:

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.

Judge Beelzebubba: Senator, with due respect, most legal scholars do not agree that Miller regarded the right to keep and bear arms as a collective right. Miller held that an individual did not have the right to bear certain arms if they were of no military utility. For this ruling to have any meaning, we must accept that the court considered it obvious that an individual DOES have the right to keep and bear arms of military utility.

Thus, if one can conceive of a weapon that would have no utility to a soldier under any circumstance, that weapon might indeed be one that an individual does not have a right to keep and bear. The shortened shotgun defendant Miller was convicted of keeping and bearing was considered by the Court to be such a weapon, because there was no evidence in the record of such being issued used by military forces.

Because the laws banning private ownership of military-type rifles made since 1986 are subject to review by the Court, I will not be able to comment further on how Miller might be applied by one who subscribes to the principle of Stare Decisis, as I do.