[davec]

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.

http://www.washingtonpost.com/wp-dyn/content/article/2005/09/14/AR2005091402308.html

[cuchulainn]

Sounds like he understands the issue.

[publius]

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.

Sorry, but that's not indicative of any interest in the issue at all. Silviera vs Lockyer was denied cert quite a while ago, he seems to think it is still pending, and he can't remember the name of the case. I know there are a million cases with a million names, but the lack of knowledge of the status of the case tells me he hasn't bothered to pay any attention to the issue in at least a year and a half.

[ClonaKilty]

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.

This shows some good insight and understanding of Miller and its limitations.

[Fletchette]

Roberts did say his only promise would be to uphold and defend the Constitution today, when questioned on whether he would stand up "for the little guy". After reading his responses on the Second Amendment, I think he does have a good understanding of the present state of the Circuit courts, but didn't let on much on how he would resolve that conflict.

Question: It seems form the text that Feingold believes in an individual right to keep and bear arms. If Roberts sees the Second Amendment that way, do you think he is just being coy so as not to ignite a firestorm with liberals?

[adobewalls]

The Democrats that have been questioning Roberts have been baiting him to take a position, which he is refusing to do - basically Roberts is invoking the "Ginsberg" rule of not giving any indication of how he would view any of the matters that have been put to him. So, I really don't see being able to draw any conclusions one way or the other from his testimony. Now with that said, he has promised to look at the facts of each case and listen to the arguements presented pro and con, and then render a thoughtful judgement.

Bottomline - his testimony is more about turning the questions back to the questioners with vague third person answers that they will not be able to use in any campaign against him.

This is one of those situation where you just gotta trust yer gut, because you won't be able to see a pattern before he starts writing opinions - and then it will be too late.

[Dan from MI]

I'm cautiously optimistic on him. I still think he'll be a Rehnquist type.
I'd rather have Kozinski, but we can do worse than Renhquist.

Unfortunatly, we don't know 100% if he's solid or not until he makes rulings.

[dolanp]

We'll probably never know until one such case hits the SCOTUS. However I am certain Roberts does not want to let slip his real opinion because Feinstein and Kennedy would try and rip him apart and call him a baby-killer and all sorts of nonsense. If you've been watching then you know that they've been doing everything they can think of to try and get him to slip up so they can throw their blissninny emotional rants at him.

[insidious_calm]

Fineswine: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.


I you believe any of the above, I have a wonderful piece of real estate you would be interested in. Possibly a bridge as well....



I.C.

[rock jock]

Feingold made that statement, not Feinstein.

I think Roberts will look at the arguments and see that very clearly there is an individual right.

[Kim]

The thing that Roberts has shown is he is very intelligent. No notes, no aides. He has not used One in this whole debate. He knows the law. He will be one of our most remarkable Judges ever. He is not a ideologue. He knows the Constitution. He is also a conservative. The liberals are scared to death because the combination of high intelligence in a Conservative is something they deny exsists. This is obvious to anyone watching. The liberals want to know about his feelings and his heart etc. Good Grief they seem illiterate next to him as do alot of the Repubs. I thought Lindsey Graham at least showed some intelliegence of the law. Roberts also has the personality and deameanor to sway others.

[Delmar]

Can't say I know which way Roberts will go as to the Second Amendment, but he was quite correct in not exposing his prejudice as to what he believes. He would just bring more fire on himself if he did. I can see the headlines....

Roberts is a communist gun grabber.

Roberts is a gun toting Rambo.

Take your pick-I like the Rambo headline myself, given those being the only two choices!

It is kinda fun to watch him get the mental midgets like Kennedy and Biden all twisted up. Was waiting for Biden to get his hourly dose of Prozac before he fell to the floor twitching.

[Sam]

I haven't a clue what Roberts will do with 2A.
I do know that he is entertaining.
Love to see those idiots try and try against a bright man and come up short each and every time.

Sam

[Monkeyleg]

Fletchette: "Question: It seems form the text that Feingold believes in an individual right to keep and bear arms."

Only in the last year or so, and only while he's been conducting some "listening tours" in the Deep South.

Senator Russ Feingold is a gun-grabber of the First Order. Before being elected to the Senate (he managed to get elected by running cutesey ads while the two serious candidates were duking it out on real issues), Feingold voted for every state-level gun ban imaginable.

Russ Feingold previously represented the Madison area of Wisconsin: the Berkeley of the Midwest.

He's the worst form of amorphous, self-agrandizing, narcissitic, spineless piece of gelatin that can be found in the Senate.

IOW, if our Department of Natural Resources declared a season on amorphous, self-agrandizing, narcissitic, spineless pieces of gelatin, he could be a trophy mount.

[AZRickD]

Sounds like he understands the issue.

He said that the Court ruled that a sawed-off shot gun was not protected...

Here is what the Court said in Miller:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174

--snip--
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
--snip--

--snip--
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
--snip--

--snip--
In the margin some of the more important opinions and comments by writers are cited. 3 [307 U.S. 174, 183] We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Reversed and remanded
--snip--

Remanded so that the lower court could take evidence to see if short-barreled shotguns are used in war. In 1942, Cases and Tots made it clear that the Federal Courts were very much aware that, in fact, they were, and given the nature of guerilla warfare they were experiencing at the time, just about anything could be considered a weapon of war.

Rick

[Dan from MI]

Russ Feingold is a weasel on the gun issue. He voted against the ugly gun ban...

And then voted to ban .30-30 ammunition.

[rick_reno]

Feingold was fishing, and Roberts didn't take the bait. I'll wait for some rulings to decide if Bush did good - or bad.

[Monkeyleg]

All of us know that Feingold has been playing politics with the gun issue.

What I find really fascinating is that, just prior to his re-election campaign, he came out against the renewal of the 1994 AW ban. The same ban that he voted for, stumped for, and practically salivated for.

Of course, this is the same Russ Feingold who, with the complicity of John McCain and the downright stupditity of GW, got campaign finance reform passed.

Back to Roberts, though: he's 51 years old, and I'm 54. Most people know what I think about issues. How is it that nobody knows what he thinks? Has he been kept in a vacuum for forty years?

I read the press about how he tactfully dodged questions from Kennedy, et al. But, then, I don't know any more about him--or probably less--than does Kennedy.

If Roberts didn't lay out his whole philosophy to GW, explain why the 2A is second only to the First Amendment, and pledge that the 1911 is God's greatest gift to a freedom-loving nation, then I've got serious issues with the guy.

Politically, GW has played this brilliantly: he has a seemingly moderate nominee who seems to have the support of the majority of the Senate. He fills both roles with a single pass.

And maybe that's what bothers me. I even heard Chuck Schumer saying nice things about him tonight on the talk shows.

GW's next move is to replace a Sandra Day O'Connor with a real conservative. Roberts has been a ploy to get the Schumer's of the Senate out to try to destroy a nominee that most of the public agrees with.

I'm just praying that GW has someone who's a strict constructionist in line for the next vote this fall.

92% of all members of the Senate--including Republicans--voted for the confirmation of Ruth Bader Ginsberg.

My God. Republicans could screw up a free cup of coffee.

[Stand_Watie]

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.

That particular acknowledgement is very encouraging to me.

[ctdonath]

Roberts had to:
1. Demonstrate a decent understanding of both side of the issue (rattled off summaries of several cases without notes)
2. Not indicate a leaning in either direction (simply acknowledged other rulings, and that they may face him).

The fact that he could rattle off the cases he did, as well as he did in so few words (without indicating he knows the issue so well that he must have a concluded opinion), gives hope.

[beerslurpy]

As I said in my Roberts post from yesterday, I think the mere fact that he addresses Miller as it was written is a huge positive sign.

The "weapons test" view is (as the circuit courts observed immediately after Miller) compatible with an extremely expansive view of the right. Any weapon which can be put to lawful military use or to the uses of sport or civilian self defense (so perhaps poisoned bullets and anthrax grenades arent allowed) is protected under this doctrine.

Since this doctrine was incompatible with the outcome that the circuits usually wanted in a case, they ignored it in favor of misconstruing Miller as creating a "relation to a well-regulated Militia" test. Except for pro-2nd amendment scholars, every legal authority (including all prosecuting attornies, all federal agencies and all circuit judges I have ever heard of) treats this view as being the decided view of the supreme court. Roberts' contrasting view puts him in very good company.

Even more encouraging is his open admission that the matter is currently in conflict between the circuits, which virtually guarantees that he intends to visit the subject in the foreseeable future. Since Chief Justice Roberts will get to pick and choose the cases the SCOTUS hears, it is almost certain that this is good news for us.

[beerslurpy]

Also, I suspect that Roberts is a lure to get the Democrats to vote along party lines so the Republicans can say "Ha! Bias! You wont even accept a moderate candidate."

If this plays out like that, the next candidate will be someone truly offensive to the democrats like Janice Rogers Brown, Samuel Alito or someone from Texas. Since the Democrats already cried wolf once, they would be unable to effectively block again without looking petty. The Republicans could foil their obstruction (nuclear option or whatever) without exposing themselves to political risk.

Lol theory.

[DeseoUnTaco]

Here is what the Court said in Miller:
The Miller case was a terrible case, for three reasons:

Miller was destitute and had terrible legal representation. How would it have gone if he had had a top lawyer arguing?
Miller was a criminal. He was not someone who would attract sympathy.
Miller was not alive. Yes, that's right, he was dead when the SCOTUS heard the case. A dead, destitute criminal doesn't make a good defendant.

Oh and they never actually ruled on the big question: is the right to keep and bear arms individual, or collective? They just said, "Well, a sawed-off is not a militia weapon so the 2nd doesn't protect you." I think that's wrong; I think a sawed-off is definitely a militia weapon, albeit not a traditional infantry weapon.

I'm hoping there will be a good 2nd Amend case, a case where the factors are all better than what Miller had.

[PromptCritical]

My reading of Miller: A sawed off shotgun is not a weapon of war, ok, big deal, but an M-16 certainly is. NFA goes bye bye. So simple a child could understand. Why can't the .gov?

[Gary H]

I ask you......

Do you really think that Roberts has much respect for the Ninth Circuit as it is presently constituted? That should answer your question.

[BowStreetRunner]

I am encouraged by the testimony
my blog on the issue (http://thinkfreelivefree.blogspot.com/)
BSR

[Henry Bowman]

I've said it before and I'll say it again -- it's not about "the right of the people." Only a kool-ade drinker or a complete moron would believe the "collective right" claptrap. The Supremes, like the 5th Circuit, will find an individual right if given the chance.

The real linchpin is "shall not be infringed." That seems unequivocal to me. It doesn't say "Congress shall make no law..." It doesn't reserve a right or power to the states to infringe if they choose. Yet, just like our beloved 5th Circuit, they will say that "shall not be infringed" means "subject to reasonable regulation." All of the elite within the beltway, conservative and liberal alike, are afraid of the John Hinkleys, Malvos and other nuts out there that are a threat to them or their neighbors. They don't want to have to defend themselves; they want to be able to feel safe where ever they usually go. They realise that others have to travel in more dangerous neighborhoods and may have a need for a gun for self defense -- but they shall be only subject to whatever terms and conditions the local custom requires, but no less than a reasonable background check and, preferably, a showing of need.

This is where we need a strict constructionist -- an absolutist. I fear that Roberts may be too "reasonable" for that. Oh sure, it's your personal right, so long as it doesn't interfere with my right not to feel afraid.

I hope Roberts has the right stuff, but I fear that Thomas may be our only "all the way" ally.

[Al Norris]

I'm afraid that I agree with you, Henry.

To give a little impetus to the Supreme Courts various opinions, consider the 6th amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,...

Some years ago (Baldwin v New York, 399 US 66, 69 (1970)), the Court ruled that all doesn't mean all. It means all criminal trials in which you could get 6 months or more in jail time. Then a couple of years later, the Court ruled (in an opinion by O'Connor) that even if you are charged with multiple counts, which could give you more than 6 months time, you are not entitled to a jury trial if the individual counts would net you less than 6 months.

So the terms, "Congress Shall Make No Law" and "Shall Not Be Infringed" mean no more than what TweedleDee (or was that TweedleDum?) said to Alice: Words mean what I say they mean. Nothing more and nothing less.

[Bartholomew Roberts]

Oh and they never actually ruled on the big question: is the right to keep and bear arms individual, or collective? They just said, "Well, a sawed-off is not a militia weapon so the 2nd doesn't protect you."

Actually, what the court said was that there was no evidence that a sawed-off shotgun had any relation to a well-regulated militia and remanded the decision to the lower court for them to reach a finding on that aspect.

That never happened because Miller was already dead by that point.

Generally appeals and higher courts do not rule on issues of fact. Most of the time they leave that up to the court that actually heard the case because they believe they are in a better position to determine the facts. Miller had a lousy lawyer in lower court and no lawyer at all before SCOTUS, so there was no evidence at all regarding that issue.

So technically, the court did not even rule that a sawed-off shotgun wasn't protected. it just said there was no evidence to say one way or the other.

[publius]

Roberts on Kelo (http://www.washingtonpost.com/wp-dyn/content/article/2005/09/14/AR2005091402252.html):
KOHL: Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.

We discussed this when you were in my office, and you told me that you were, quote, "surprised," by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?

ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.

And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.

When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.

Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.

The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.

I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.

What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.

But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.

The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.

And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.
They are limited by how much power they want to exercise. Kind of like the interstate commerce limit, which has been interpreted to mean that if Congress has the brass to say that something affects interstate commerce, then it affects interstate commerce, and that's the end of that.

[beerslurpy]

What ever happened to the concept that we are endowed with inalienable rights by virtue of being born, rather than by having them granted by law? At the very least the rights and constraints of the constitution should not diminish with time.

If congress and SCOTUS can redefine words in the constitution to mean the opposite of what they say, then why do we bother having a constitution?

[kart racer]

I think this will either turn out great or the gop has just been takin' in one big con.Nobody will know for sure until he makes some rulings..

[Standing Wolf]

Never—ever!—trust a R.I.N.O.

[thereisnospoon]

NONE of the people inside the beltway give a rip about your rights

[publius]

So technically, the court did not even rule that a sawed-off shotgun wasn't protected. it just said there was no evidence to say one way or the other.
Goes to show how far we had come by 1939. If you showed the Founders a 1930s shotgun, they would definitely use it to kill Redcoats.

I think they'd react the same way to a modern crossbow.

They would think my wife's Keltec 32 was the cutest little Redcoat killer they had ever seen.

They would kill many people to get hold of my brother's Serbu 50.

If they saw what I could do with my wrist rocket slingshot and a musket ball (probably about equal to what they could do with a musket and a musket ball, but much quicker, and silent), they would freak out and order rolls and rolls of surgical tubing from the future.

It's very clear if you read the Federalist Papers that the 2nd is all about preserving the ability of the people to kill soldiers who need killing. If it will kill a soldier, it's part of the intent of the 2nd. That was obvious at the time they wrote it. By 1939, the court needed proof of the obvious.