What is John Roberts (SCOTUS) view on 2nd ammendment?

[PythonFan]

It seems clear that Scalia, Thomas, and Alito are all originalists and view that the government does not have the right to regulate individuals rights to own firearms, but what about Roberts? If AWB2 happens, it will likely go before the courts and I am not sure how Roberts will swing. Opinions?

 

[RealGun]

I am not sure what you think you know about Alito, but both of these newest Justices seem likely to consider precedent and will not be especially inclined to overturn any of it. I think they can be persuaded by others, but won't be leading any particular charge.

If another AWB got to that point, conservative gun owners would be in such a stage of revolt it probably wouldn't matter. The real question will be how the measure ever passed and who needs to be replaced in Congress.

 

[DKSuddeth]

so far it seems that only scalia is willing to buck congress on using the commerce clause. Thomas approves the commerce clause with respect to 922(o) as well as roberts and alito.

 

[beerslurpy]

Uh, there is no 2nd amendment precedent for them to be leery of bucking.

I'm personally encouraged on Alito because he actually argued in his dissent that 922(o) was unconstitutional under Lopez. If he isnt afraid of touching a hot-button issue like that, he will likely not shy away from doing the right thing in regards to the 2nd.

As for Roberts, nothing solid (he spent most of his years doing private practice for corporate clients) but during his confirmation hearings, he gave a very accurate description of the holdings of Miller- a description that was very far from the anti-gun line spouted by 95 percent of circuit judges over the years. It doesnt mean he is pro-RKBA, but it is very unusual for someone anti-RKBA to have even considerd such a thing. He also mentioned a circuit split regarding 2nd = individual right, something I found encouraging. His views are, at worst, merely compatible with our vision of the 2nd.

 

[RealGun]

Uh, there is no 2nd amendment precedent for them to be leery of bucking.

Of course there is, Miller being perhaps the best example.

 

[nico]

If another AWB got to that point, conservative gun owners would be in such a stage of revolt it probably wouldn't matter. The real question will be how the measure ever passed and who needs to be replaced in Congress.

The thing is the gun grabbers aren't really going for a federal AWB anymore (the talk of it is just saber rattling IMO); they're doing it at the state level. Look at the effort/money the brady bunch just put into a state Senate primary election here in MD. And they won.

sarah brady and her cronies are done fighting for an AWB at the federal level. Now, it's divide and conquer on a state by state basis. This way, the attitude on our side will be "damn, that sucks for MD. I sure am glad I live in a place like VA where that'll never happen."

I'm probably a hypocrite for saying this, since I don't have the time or money to help much right now (taking ~30 credits/semester and living off of loans; I've gone shooting twice this year), but apathy is going to be our downfall. If the gun owners in this state, in particular, cared enough to just go out and vote, the gun grabbers would be scared to even suggest an AWB.

 

[beerslurpy]

But Miller is a precedent that supports our position on what types of weapons are protected by the second.

However, Miller is almost a non-precedent because the lower courts immediately twisted it beyond recognition and the Supreme Court let them get away with it for nearly 70 years. Depending on what circuit you reside in, Miller can mean anything from a pro gun to a completely anti-gun precedent, even though the actual holding had nothing at all to do with the substance of the right enjoyed by individuals. Without guidance, the circuits have made up their own rules, attempting to apply Miller to places it never went. Unlike with other subject matter, the Supreme Court has long declined to step in and settle the split.

We are still waiting for a ruling on who is protected by the second amendment. Individual citizens? Government officials? Soldiers? Illegal aliens? Former felons? Former misdeameanants? This hasnt been touched yet, except in dicta. The dicta suggests at least a strong individual right, but unfortunately is not binding.

We are also still waiting for the supreme court to start applying the Miller test to actual weapons so we can clarify the reasoning and apply it to other guns. Clearly an M16 is a suitable weapon under Miller. But what about a rocket laucher? A mortar? A tank? An aircraft carrier? A nuclear missile? At some point, an individually owned weapon starts to usurp the sovreignity of the US without conferring any self defense or common defense benefits. While a portable mortar might clearly be a useful tool in a civil unrest or invasion situation, a nuke or a carrier has little use beyond attacking distant foreign targets. Etc.

 

[Bartholomew Roberts]

so far it seems that only scalia is willing to buck congress on using the commerce clause.

Uh... Gonzales v. Raich? Scalia had no problems creating new powers under the commerce clause in that particular case. Scalia isn't going to be supporting any new right he is not comfortable with.

Thomas has come out very strong for the Second Amendment in dicta and Thomas is really the only judge who has shown even the slightest taste for overturning a whole bunch of law at once - whether you look at Hamdi, Hamdan, Raich, etc. Thomas seems to be more inclined to upset the apple cart than Scalia.

The good news for us is that both Scalia and Thomas are probably quite comfortable with an individual rights interpretation of the Second Amendment. Though I bet if the facts of the case involved something like machineguns, you would see Scalia start to qualify that right.

 

[DKSuddeth]

Bart, I stand corrected. Thanks.

Scalia, indeed, does support the use of the commerce clause with regards to pot and machine guns. It brings to mind a quote of his that he said, and I paraphrase here, 'that we have more rights now than the constitution gives us.'

Thomas seems to be the only true originalist.

 

[AZRickD]

Of course there is, Miller being perhaps the best example.

US v Miller (1939) is four pages long (an easy read) and is the only Supreme Court-level case to address some angle of the 2A, but it if one actually reads it, it is pro RKBA.

http://www.guncite.com/court/fed/sc/307us174.html

It also says that the Court has no "judicial notice" to consider whether short-barreled shotguns are weapons of war, and since only pro-government attorneys were there, they didn't think it to their advantage to say so.

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.

The Court remanded it back down to the lower Court (and I don't think that court ever got around to doing anything since Miller was mute, er, moot).

The USSC also said this in Miller:

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.

Kopel, Halbrook, and Korwin note that the USSC has often mentioned RKBA in a favorable light.

http://www.gunlaws.com/SCGC-News.html

 

[stlgunfan]

All I know in general, regardless it seems most judges are scared of touching the 2nd A, and avoid the subject.

 

[xd9fan]

All I know in general, regardless it seems most judges are scared of touching the 2nd A, and avoid the subject.

Because guns are liberty's litmus test.

You have to wonder if they know (through the coarse of years of precedent, that courts can morph laws into different meaning. Look at what they have done with the Kelo case and the Interstate commerce clause in general.

With guns......you could buy a civil war

I honestly dont know what is better, voiding it, which can seem like they want it to "die on the vine" or treating it like the 1th and 4th with limitations everywhere.

Odds are the problem is YOUR local Congressman and Senator. Congress makes the laws......

 

[Bartholomew Roberts]

Miller is a bad decision in general. If Miller alone dictates the outcome of the next court decision, then we are not in a position of strength.

The good news is that Miller is poorly written to the degree that any court that makes a decision will pretend they are following stare decisis and then write a totally new decision with little link to Miller anyway.

 

[mec]

" His views are, at worst, merely compatible with our vision of the 2nd..."
which sounds like good news. The sort of news we would not be hearing had the vacancy been filled by a leftist president.

twenty years ago, the former chief justice, Warren Burger published and Op Ed in Parade magazine insisting that the second ammendment does not confer or protect an individual right but a collective right of the government.

Burger was appointed by Richard Nixon and some analysts consider him the butt-stupidest chief justice in american history.

 

[Silver Bullet]

The sort of news we would not be hearing had the vacancy been filled by a leftist president.

That may be the biggest reason I'm glad I voted for Bush. Under this administration we've had maybe the only gains to RKBA (except for states adopting CCW) of any administration in the last 100 years, but we all wish it was more.

Roberts and Alito might turn out to be the best thing that happened to RKBA under Bush, but we won't know for sure until they're put to the test. Meanwhile, I'm much more comfortable with them than anybody goreKerry would have picked.

 

[beerslurpy]

Dont be too quick to credit a single man with results that came about as a result of much larger changes in society. That's the work each of us should be doing every year. Getting more people involved in shooting sports, getting more people to get CCW and buy guns for self defense.

These changes amount to moving the ocean, which greatly constricts what the captain of the boat can do. Remember that we nearly got Harriet Miers instead of Alito before conservatives revolted. We could easily have ended up with another Souter.

Our great victories in CCW across the country have laid the ground for further victories in self defense law and in changing attitudes towards ownership and use of firearms. In years to come, many of the minds we change today will be minds that support loosening of federal controls and weakening of the ATF.

 

[Silver Bullet]

Perhaps, but I'm contrasting what we would have got with goreKerry.

 

[beerslurpy]

True, but there is a reason that those guys lost. Some of it had to do with guns, especially Gore. As much as voters are generally considered morons, they are getting better at seeing through the lies of the candidates.

Gore should have taken more states in the South but he went off about registering handguns just before the election. Lost at least W Va and TN because of that little misstep. Who needs Carl Rove when you are that far out of touch?

And Kerry made it real easy for gun owners to hate him. Bush was at best a lukewarm ally while Kerry was clearly an enemy who had temporarily lowered his banner to pass for a neutral.

 

[xd9fan]

Perhaps, but I'm contrasting what we would have got with goreKerry.

Not sure this is right. With no competition the GOP has forgotten what they stood for (or maybe they never did)

Such a liberal pair in the whitehouse would put the balls back in the GOP's pants. And thay would look in the mirror and realize their spine came back.
Both digging in....and nothing getting done......with the GOP not willing to erase the 34',68',86' bans....(and no hope for a strong Individual liberty party anytime soon)....the only hope we have is a log jam.

 

[Panthera Tigris]

This is just one man's opinion, but I talked to a judge this weekend who believes the current Supreme Court would indeed rule the 2nd Amendment is an individual right if the matter does actually come before them for review.

 

[Silver Bullet]

Such a liberal pair in the whitehouse would put the balls back in the GOP's pants. And thay would look in the mirror and realize their spine came back.

Uh-uh. We wouldn't have got Roberts and Alito for justices no matter how much spine the Republicans regained. goreKerry would still be doing the nominating.

 

[Augustwest]

Thomas seems to be the only true originalist.

+1

 

[Bartholomew Roberts]

Burger was appointed by Richard Nixon and some analysts consider him the butt-stupidest chief justice in american history.

Well, I don't know if I would go that far... a stupid Supreme Court justice is still pretty sharp. I would have to say that Burger's analysis in that Parade magazine article was utterly horrid. The Second Amendment DOES protect "sporting" firearms but does not protect handguns? That is nothing more than making your opinion law without any historical support - something that Burger probably no longer recognized since he had done it so often by that point.

 

[Derby FALs]

That may be the biggest reason I'm glad I voted for Bush. Under this administration we've had maybe the only gains to RKBA (except for states adopting CCW) of any administration in the last 100 years, but we all wish it was more.

That pesky imported parts kit ban says a lot.

 

[Henry Bowman]

This is just one man's opinion, but I talked to a judge this weekend who believes the current Supreme Court would indeed rule the 2nd Amendment is an individual right if the matter does actually come before them for review.

And that it is subject to all forms of "reasonable" regulation.