Roberts on the Second Amendment
Thanks to a tip in a comment to the previous post, I've found a longer transcript of the 9/14 hearings on Robert's confirmation. Basically, (1) Roberts correctly sees Miller as going to the nature of the gun, and not as being a collective rights case; (2) but he sees Miller as leaving the issue up in the air, not as settling it in favor of individual rights (you can see Miller either as recognizing an individual right limited to military-type arms -- which I think is fair, based on the fact it remanded to take evidence, or as having decided only the narrow issue of whether non-military arms are covered, and leaving open the result if the arm IS military; and (3) he sounds like he'd vote for cert., so the issue will likely get hot, soon. Here is the relevant part:
"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: [I have no idea why there are two successive "FEINGOLDs" here. This appears to be continuous Feingold, that is, the above para. is not Roberts. That is also borne out by the reference to actions legislatures should not take "in my view," hardly the language of a judicial nominee] 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."
What's really interesting is how much Roberts knows about what is, to most jurists, a very obscure area. He knows that Miller involved a sawed-off shotgun, was decided in 1939, knows that the collective right view was presented in it, knows (although I'd read it differently) what the case held, knows what circuits are split and which way, even knows the lingo (I suspect most judges if asked about second amendment "collective rights" would wonder what that means). Perhaps it was covered in his briefing, but I doubt a fellow could remember that much given how much he must have been briefed on -- I'd suspect he's done a fair amount of reading on his own.
My own take on the Miller question follows....
I think the view that Miller decides in favor of an individual right for military-type guns (what I call a "hyrbid right") rather than leaving the issue open is the better one. Miller, after all, reverses and remands in order that evidence be taken on the sawed-off shotgun. I'm offhand unaware of any caselaw on how one interprets a Supreme Court ruling in this setting, but--
(1) The collective rights claim was briefed by the government, I think as its primary argument.
(2) It seems to me that if the Court was of the view that there was no individual right, there would have been no purpose to remanding after stating the lower court erred in not taking evidence regarding the gun. That'd merely be generating more work, after which the Supremes would have to announce it was all for naught -- there's no right here, and whether the gun is military or not is of no moment.
Analogy: plaintiff challenges a law that allegedly infringes his right to do X. Government responds there is no right to do X, and if there was, its measures are reasonable regulations of it. Lower court strikes the law. Supremes reverse the lower court, ruling that it had insufficient evidence from which to conclude this wasn't a reasonable regulation, and remand. I'd read the Supremes as having held there is a right to do X. Reaching that conclusion is necessary before we apply reasonable regulation analysis, ergo it was part of the holding.
(3) The Court cites as its authority (rather sloppily, just stating that in fn. 3 some of the more important writings on the subject can be found) Aymette v. State, which went with a "hybrid" individual rights view, and Story's work on the Constitution, and Cooley's work on it (both of which go for the individual rights view, with Cooley specifically rejecting collective rights).
(4) Might there be something to the fact that the Supreme Court reversed, but did not vacate, the lower court judgment? The lower court held, implicitly, that the 2nd was an individual right, and that Defendant had proven the NFA violated it. The Supremes reversed as to the second conclusion. "... the challenged judgment must be reversed. The cause will be remanded for further proceedings." No vacatur (which would have wiped out the lower court's ruling, and its precedential value, entirely).