Skip to comments.Judge John Roberts on Second Amendment
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 ...
If he can't come right out and say it's individual, then I'm not prone to trust him.
Noone gets my gun.....period.
The thing is if he says it is an individual right like I want him to, he may be forced to recuse himself from 2A rulings.
Ditto. It "sounds" favorable.
I'm shocked that Feingold claims to believe in the correct 'Indivivual right' interpretation.
Is this just something he says to mollify hunters in Wisconsin?
The Second Amendment is long overdue for a clarifying SCOTUS ruling, one way or the other. The legal "meaning" of that amendment has, if you'll pardon the pun, hung fire for far too long in the courts (though it's perfectly clear to me). Now there is a conflict between two federal circuits--the Supreme Court almost has to step in. If a majority of the court rules correctly on a Second Amendment issue--i.e., for the "individual right" that the amendment plainly confers on citizens--then the precedent has been set, and the gun control movement is out of business for the foreseeable future.
I am also cautiously optimistic. I think he's just trying to avoid any potential media talking points.
I was surprised at Feingold's statements though.
um, seems he said it loud and clear right there
nope, my bad, sorry.
that's still Feingold speaking.
Actually, according to this, FEINGOLD said that, which shocked me.
Yes, the libs continue to be totally transparent in their attempt to work EVERY angle to not only castrate the Second Amendment, but to disarm every law abiding citizen, for their own health and well being. That has always been the purpose of the S.A. to provide for the people to protect themselves AGAINST A TYRANNICAL goverment, like the libs want to turn the our Republic into.
A hard socialist state, where abosolute control of everybody and everything rests with a all-encompassing goverment (THEM)...
After reading the article and listening to some of it, he is doing a good job at making the Dems look exactly like what they are ---
The court has not ruled on the 2nd? What about Cruikshank?
Cruikshank stated that the amendment clearly said RKBA could not be infringed by Congress. That was back when the 10th meant something.
Have you called your representatives and the NRA over what happened in NO?
Me too. This line from Feingold, of all people, could easily come from any pro-2nd Amendment speaker:
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.
My first post here. Long time lurker. Love you guys. Now, on to my comment. the 2nd amendment DOES NOT GIVE us the right to keep and bear arms. It, like the 1st and others, recognizes that we the people have certain rights as human beings which no gov't can give and that's one of them. The clear text of the amendment simply makes it clear that the gov't may not INFRINGE on this right. The original concept of these rights were the right to be free from government interference. To see how far we've gotten away from the whole idea of the constitution, constitutional rights now are seen as right to receive something from government. Sad.
Individual vs. collective? What other article in the Constitution gives "collective" rights? As a matter of fact, NONE of the articles in the Bill of Rights actually "gives" rights to anyone. What they do is deny the Government the ability to interfere with your "right" to those things.
Yes he did. He's Fiengold though and he doesn't mean what you think it means.
"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."
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.
"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. (Emphasis added.) 307 U.S. at 178."
And even that was wrong. Short-barreld shotguns had been in use.
Certain people argue that the clause regarding a "well regulated malitia" serves to restrict the individual's rights, but I argue that it strengthens the individual's rights because its intent is that all men should be proficient in the use of firearms in case their well-honed skills are ever needed by the government to preserve liberty for all.
I would still take any 100 Freepers out of a hat for the Senate and we'd be far better off.
Absolutely correct. It means that if we want to keep and bear arms, the government may NOT prevent/infringe on us from doing so.
I suppose one could say this is a right of ours to keep arms and that government may not infringe. So now, lets get the lawyers out to argue that. Around and around we go.
There are more than a few libs who know the voters in their states or districts. For that reason alone, those pols consider the 2nd to be their third rail, they avoid it like the plague.
WWI Trench Sweepers. You'll also see them in old cowboy movies used as by lawmen or stagecoach drivers.
The historic definition of "well-regulated" often gets lost in translation. Since muskets back then had no rifling and thus the musket balls tended to inaccuracy, it was the concentration of many balls of lead careening through the atmosphere in a general direction that was the military order of the day. The ability to train a number of guns to deliver these balls in one general direction was called "regulating" your fire and hence, a citizenry proficient in the use of the musket and well-practiced became a "well-regulated" militia.
You are aware that Feingold carries a concealed weapon aren't you?
Thanks for the historical perspective.
re: my mistake on post#8
see post #9.
Well I thank you for your first post, and you are exactly right. Keep on postin'!
Thanks. I appreciate it.
I had a well educated professor from the UK break the sentence down. He stated that there are actually two seperate sentences in there. One addressing a well regulated militia and the other concerning the non-infringement of the government to keeping and bearing arms. 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?
Actually, even that's not right. The court merely allowed the government to bring Miller/Layton to trial to determine, among other things, whether a shotgun was a militarily-useful weapon. Even though Layton was still alive, the government decided to plea bargain for time served rather than go to court to prove its case. Is there any other case where the government, after "winning", has offered a plea-bargain for time served?
Big hint to the turdbucket politicans,,,,,The ENTIRE US CONSTITUTION IS ABOUT INDIVIDUAL RIGHTS!!!!!! Think about it. There is very little in it addressing other issues.
Interesting - the notion of the added protection of states from Federal tyranny.
We shouldn't be shocked that it was Feingold assigned to do the dirty, precarious questioning on the 2nd Amendment.
All these scumbags get together beforehand and divy-up the questions they think ought to be asked, and whether or not their constituents and major donors would have a problem with it.
Apparently, after learning the lessons of losing election after election where they pressed their anti-gun agenda, and LOST - they are being much more reserved in the raising of this issue.
Hence, the USUAL attack dogs on our 2nd Amendment rights, Schumer and Feinstein, are taking the easy route due to their constituents and major donors being more left-wing and anti-gun that Feingold's.
I don't know if this is fact, but I believe it is what these gun-grabbing scumbags are up to.
It also may be that Feingold ISN'T up for re-election next time around, and the others are, OR, Feingold IS up for re-election, and the people in his district are more pro-gun than he NORMALLY (when not up for re-election) is. Ala Hillary, he may be juking to the right in an effort to get re-elected. Just like Kerry, he's probably a lying-sack-of-sh*t when it comes to his views on the 2nd Amendment and firearms owned by law-abiding citizens.
Anti-gun, anti-freedom, anti-AMERICAN maggots.
Roberts will be confirmed.
I say we make an amendment to abolish the supreme court. It can't be any worse than what we have had in the past.
Great first post. Welcome to Freerepublic. Wish we had more like you.
What a lying sack of Sh*t he is. The Court in Miller did no such thing. The decision went off on the Court's arguably bogus, whole cloth characterization of sawed off shotguns as not a part of the militia's armamentaria and therefore beyond the scope of the 2nd Amendment. Moreover, the defendant was not represented in the matter when it was being "argued" before the Court. Just a minor due process problem, dontcha know. Which makes it somewhat odd that the Court saw fit to rule on the matter at all. The main point is, Finegold is a piece of heavy left scum who will say anything, anything at all.
And Feinswine used to carry concealed (& probably still does), and Rosie O'Donnel has (or, at least, HAD) an armed body guard.
That means absolutely NOTHING, and MAY mean nothing more than, these type of "elites" think that it is O.K. for THEM to be armed, but not the "average" citizen out on the "street".
Unless they respect, support, and defend our rights, as well as theirs, they are hypocrites and scumbags that should NOT be in any office of power or importance.
Thank you. It's an honor to be here.
That is a flat out lie. There is no such indication whatsoever in the Miller decision.
The Court merely said that no evidence had been presented to show that the firearm in question had any utility as a militia weapon. The clear implication is that had that evidence been shown to the Court Miller's possession of the short barrel shotgun would have been protected by the amendment.
That evidence was abundantly available, but Miller had died before the case was heard and his lawyer didn't show up in court to submit any evidence at all. Any unbiased reader of Miller will come away with the impression that the court would have ruled differently if that evidence had been presented.
Since Miller many lower courts have knowingly, brazenly misinterpreted the decision, and in practically every case those courts used that misinterpretation to deny Americans their Constitutional right to keep and bear arms.
Years ago I read an 1863 Harpers article that stated "The ???? regiment was well-regulated, being armed with the Sharps breechloading rifle . . .". In that context I took "well regulated" to mean "well equipped", which would also make sense.
American English is a dynamic language and meanings/usage change over the years. Many examples exist. I read an 1880s account of an Indian fight where "Mr. X showed much bravery by discovering himself to the Indians in order to draw their fire." In those days "discover" meant "uncover", so Mr. X evidently exposed himself to draw enemy fire.
Back in the 30s, there was a Fred Astaire/Ginger Rogers movie called "The Gay Divorcee". Back then "gay" meant carefree. You'd get a different interpretation by today's youth.
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.
It would perhaps be to much to ask that Roberts be more knowledgeable here. He has only been a judge for about two years, I think. Its possible he has never had a case involving the Second Amendment.
On the other hand, there are only ten articles in the Bill of Rights. One might think that he would have some rather informed opinions if he thought that one of them had been seriously infringed for more than seventy years.
Roberts' statement about Miller strikes me as erroneous. If there had been a "collective rights" issue then one might have thought that the Supreme Court would have refused cert on the basis that Miller had no standing to bring the case.
From US vs. 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."
It appears to me that there is no "collective rights" issue at all. "Every male capable physically capable of acting in concert for the common defense" might be termed a "collective" but each such individual was expected to arm himself and the Second Amendment prohibited infringement or his right to do so.