SUPREME COURT NOMINEE ROBERTS
NEEDS EDUCATION ON SECOND AMENDMENT
For Immediate Release:
09-16-2005 Contact Communications:
(202) 289-7319

Washington DC – Supreme Court nominee John Roberts, in response to questioning from Senator Russ Feingold (D-Wis.) about the Second Amendment, gave a completely distorted picture of the state of Second Amendment law.

On the issue of whether the Second Amendment guarantees only a collective right of the people to be armed as part of a state militia, or an individual right to be armed for private purposes, Roberts said this was an “open issue” left undecided by the Supreme Court. While acknowledging the Supreme Court’s opinion on the Amendment in United States v. Miller, 307 U.S. 174 (1939), Roberts said the Miller case had “sidestepped “ the issue. Actually, in Miller, the Supreme Court wrote that the “obvious purpose” of the right to keep and bear arms in the Second Amendment was “to assure the continuation and render possible the effectiveness” of state militias and that the guarantee of that right “must be interpreted and applied with that end in view.” What could be a clearer rejection of the individual rights view? Even Senator Feingold, who indicated his own personal agreement with the individual rights view, conceded in questioning Judge Roberts, that the Supreme Court in Miller “indicated that it saw the right to bear arms as a collective right."
In discussing the rulings of the federal appeals courts on the Second Amendment, Judge Roberts gave the following summary: “I know the Ninth Circuit thinks it’s only a collective right. I know the 5th Circuit thinks it’s an individual right.” This is a conspicuously incomplete account of the case law, creating the false impression that only two federal circuit courts (the 5th and the 9th) had decided the meaning of the Second Amendment and that the two were in conflict on the individual vs. collective rights issue. Actually, virtually every federal appeals court has decided this issue and only one, the Fifth Circuit in United States v. Emerson, has endorsed the individual rights view. Since the Emerson opinion in 2001 (which was joined by only two circuit court judges and actually upheld the gun law at issue), the individual rights view has been rejected by the Fourth, Sixth, Seventh, Ninth and Tenth Circuits. The First, Second, Third and Eighth Circuits also have issued definitive rulings rejecting the individual rights view. Judge Roberts managed to avoid mentioning this remarkable degree of judicial consensus on the meaning of the Second Amendment.
“This is very disturbing testimony from Judge Roberts,” commented Dennis Henigan, Director of the Brady Center’s Legal Action Project. “His answers on the Second Amendment issue faithfully echo the ‘spin’ on the case law typically given by the NRA and others who seek to use the Constitution as a weapon against reasonable gun laws. Those who believe that Congress, and the states, should have broad power to protect our Nation from the epidemic of gun violence now have reason to be worried about Judge Roberts.”

A list of federal circuit decisions rejecting the individual rights view of the Second Amendment follows.

FEDERAL APPELLATE COURT DECISIONS REJECTING INDIVIDUAL RIGHTS INTERPRETATION OF THE SECOND AMENDMENT

U.S. v. Parker, 362 F.3d 1279 (10th Cir. 2004)
U.S. v. Lippman, 369 F.3d 1039 (8th Cir. 2004)
U.S. v. Price, 328 F.3d 958 (7th Cir. 2003)
U.S. v. Graham, 305 F.3d 1094 (10th Cir. 2002)
U.S. v. Lucero, 43 Fed.Appx. 299 (10th Cir. 2002)
U.S. v. Bayles, 310 F.3d 1302 (10th Cir. 2002)
Silveira v. Lockyer, 312 F.3d 1052, rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003)
Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002)
U.S. v. Twenty-Two Various Firearms, 38 Fed.Appx. 229 (6th Cir. 2002)
U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 121 S. Ct. 1641 (2001)
U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert. denied, 121 S. Ct. 833 (2001)
U.S. v. Lewis, 236 F.3d 948 (8th Cir. 2001)
U.S. v. Hemmings, 258 F. 3d 587 (7th Cir. 2001)
U.S. v. Hager, 22 Fed.Appx. 130 (4th Cir. 2001)
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000)
U.S. v. Napier, 233 F.3d 394 (6th Cir. 2000)
U.S. v. Baer, 235 F.3d 561 (10th Cir. 2000)
U.S. v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied, 522 U.S. 1007 (1997)
U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), cert. denied, 522 U.S. 807 (1997)
Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996)
U.S v. Farrell, 69 F.3d 891 (8th Cir. 1995)
Love v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995)
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993)
U.S. v. Friel, 1 F.3d 1231 (1st Cir. 1993)
U.S. v. Nelsen, 859 F.2d 1318 (8th Cir. 1988)
U.S. v. Toner, 728 F.2d 115 (2d Cir. 1984)
Thomas v. City Council of Portland, 730 F.2d 41 (1st Cir. 1984)
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)
U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978)
U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977)
U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert. denied, 424 U.S. 918 (1976)
U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976)
U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974)
Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir.), cert. denied, 414 U.S. 839 (1973)
U.S. v. Day, 476 F.2d 562 (6th Cir. 1973)
Cody v. U.S., 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010 (1972)
U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971)
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972)
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971)
U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943)
U.S. v. Cases, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom.,
Velazquez v. U.S., 319 U.S. 770 (1943)

# # #

As the nation's largest national, non-partisan, grassroots organizations leading the fight to prevent gun violence, the Brady Center to Prevent Gun Violence is dedicated to creating an America free from gun violence, where all Americans are safe at home, at school, at work, and in their communities.

So where is my M-16 A4?

non-partisan

BS

If they're nervous about him, then that is a good thing.

Quoted: If they're nervous about him, then that is a good thing.

+10000

Never knew the constitution was a bunch of collective rights. I have to wonder at just how ignorant some people are about the history of the US.

They're not ignorant.  They have an  agenda (only government agents have guns)

Like the rest of the Bill-Of-Rights, those laws apply to each and every one of us, as individuals, not organizations alone.

I'm not holding my breath on this.

We all know what assume means.

Lets not count Roberts our eggs before they are hatched.

Quoted: Quoted: If they're nervous about him, then that is a good thing. +10001

While I agree that nervousness in the Brady camp is a good thing, I think that the jury is still very much out on Roberts' position on the Second.  To predict how he will rule on a gun control case from a single quote during Congressional testimony is wishful thinking.

Quoted: While I agree that nervousness in the Brady camp is a good thing, I think that the jury is still very much out on Roberts' position on the Second.  To predict how he will rule on a gun control case from a single quote during Congressional testimony is wishful thinking.

Right but his answers were what I wanted to here.

It obviously was not what Dennis Hennigan wanted to hear.

Roberts even mentioned the Emerson case!

DICTA - The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.

Most of the stuff that anti's repeat as Gospel are dicta, opinions but not law and frequently wrong...as in Miller.

Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case.

 Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination.

 As one judge said, 'If general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, or can be long settled. What I have said or written, out of the case trying, or shall say or write, under such circumstances, maybe taken as my opinion at the time, without argument or full consideration; but I will never consider myself bound by it when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion.' And another said it is 'great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions.'

 In the French law, the report of a judgment made by one of the judges who has given it, is called the dictum.

Excuse me but.....
....what the FUCK does it matter WHAT the Constitution says or WHAT any Supreme Court says or what ANY potential Supreme Court nominee thinks about the 2nd Amendment when all it takes is one goddamn RETARD Mayor and a bunch of goddamn goose-stepping, jack-booted RETARD Stormtroopers wearing police badges to sweep through a city and confiscate any and all firearms from law-abiding citizens UNOPPOSED BY ANY COURT, COP, POLITICIAN OR "2nd AMENDMENT ADVOCACY GROUP at the very hour the people needed them the most for personal protection when all law-and-order collapses and lawless anarchy rules the streets!!!???

FUCK THE SUPREME COURT!!!

They wouldn't know what the plain words of the Bill of Rights meant even if they had 216 fucking years to think about it!!!!

Quoted: Excuse me but..... ....what the FUCK does it matter WHAT the Constitution says or WHAT any Supreme Court says or what ANY potential Supreme Court nominee thinks about the 2nd Amendment when all it takes is one goddamn RETARD Mayor and a bunch of goddamn goose-stepping, jack-booted RETARD Stormtroopers wearing police badges to sweep through a city and confiscate any and all firearms from law-abiding citizens UNOPPOSED BY ANY COURT, COP, POLITICIAN OR "2nd AMENDMENT ADVOCACY GROUP at the very hour the people needed them the most for personal protection when all law-and-order collapses and lawless anarchy rules the streets!!!??? FUCK THE SUPREME COURT!!! They wouldn't know what the plain words of the Bill of Rights meant even if they had 216 fucking years to think about it!!!!

[Team America]I am sensing you are angry.[/Team America]

The NRA legal team needs to find one of the people who had their firearm confiscated, and take it to the courts!  That is, AFTER O'Connor's replacement and Roberts gets confirmed!

Miller never even interpreted the case, it was a remand decision to the Fed. Dist. Ct. of Missouri.
The lower court was supposed to rule whether Miller's shotgun and any use as a militia weapon. Miller was shot in the stomach and killed before the lower court could rehear the case and decide.

Miller, if it can be held for standing for any princile would be that the protection a person recieves in bearing any particular arm is based on that said arms quality as a weapon useful to the militia.

Miller never defined the militia or even made it a precondition that a person necessarily be in a militia.

That's why subsequet courts like U.S. v. Cases and U.Sv. Tot distanced themselves from Miller immediatly.

Somebody educate me here I thought "Miller" was the ruling allowing for the NFA and so predated the NFA??????

Miller was the sawed off shotgun case correct?


Do you really tjink the NeoCons will allow us widely available military grade weapons?  I seriously doubt it.  They would not appoint an active A.G. like Gonalez if they did.

Would be nice but I am not holding my breath.

Miller was after the NFA

Quoted: [Team America]I am sensing you are angry.[/Team America]

Resolved to the fact that America is over.

300,000,000+ people cannot live in freedom under the same government. Critical mass for human insanity was reached long ago. It's a well-known phenomenon in animal studies and even human social psychology studies. Overcrowding triggers aggression, anti-social behavior, dulled reasoning ability, dependancy and learned-helplessness. This population (85% of it at least) is either stupid, helpless, parasitic or predatory.

Yeah, I guess I'm pissed.

Hmm...

If the 2nd is a collective right, so are all the others.

Ok Brady bunch... hand over the keys to the abortion clinics... start getting all those individual wiminz and blacks out of them there voting booths, we'll take a poll and see what they think... oh and one more thing...




I'm buying more guns than ever before thanks to the President's tax cuts

Quoted: The NRA legal team needs to find one of the people who had their firearm confiscated, and take it to the courts!  That is, AFTER O'Connor's replacement and Roberts gets confirmed!

Bryer, Kennedy, Ginsberg, Souter, Stevens, [Gonzalez] = SIX Anti-freedom, gun-grabbing collectivist fucktards.

Scalia, Thomas, [Roberts] = Three (possibly TWO with Roberts being a ) likely pro-RKBA Justices.



Don't get your hopes up. The next Court will be NO friend to us.

Bush is NOT nominating Gonzalez.

He needs him at AG.

CRC

Actually, virtually every federal appeals court has decided this issue and only one, the Fifth Circuit in United States v. Emerson, has endorsed the individual rights view.

Nope, the First also did (Cases v. U.S., 1942)...
So did the Fifth (U.S. v. Bowdach, 1977)...
So did the Eighth (U.S. v. Hutzell, 2000)...
So did the Tenth (U.S. vs. Swinton, 1975)...
So did the11th Circuit Court Of Appeals (Gilbert Equipment Co., Inc. v. Higgins, 1990)...
Also, the Supreme Court recently recognized the Second Amendment as an important individual right in Planned Parenthood v. Casey, 112 S.Ct. 2791, 2805, 120 L.Ed.2d 674, 696 (1992), and U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1991).

Quoted: Bush is NOT nominating Gonzalez. He needs him at AG. CRC

Even if so...

Then it'll still be 5-4 (at best) AGAINST us.

Maybe so.

But I see Bush nominating two in the mold of Rehnquist, Scalia and Thomas.

Quoted: Maybe so. But I see Bush nominating two in the mold of Rehnquist, Scalia and Thomas.

He'll need at least two more to drop dead/retire from the Leftist-Five Bunch (Souter, Bryer, Ginsberg, Kennedy, Stevens) in the next two years just to give us even a POSSIBLE chance of making some progress towards restoring the Constitution and BOR.

Yes I thought Individual rights is what the Constitution protected.
But I guess the Collectivist Neo-Marxists have won
so much for so long, I forgot...  

myit

SCOTUS has not touched the RTKABA since 1939.

I wonder why they have not been so eager to reaffirm a so called 'collective rights' view?

Quoted: Quoted: Maybe so. But I see Bush nominating two in the mold of Rehnquist, Scalia and Thomas. He'll need at least two more to drop dead/retire from the Leftist-Five Bunch (Souter, Bryer, Ginsberg, Kennedy, Stevens) in the next two years just to give us even a POSSIBLE chance of making some progress towards restoring the Constitution and BOR.

It will be Gonzalez  GWB apparently(fingers croossed) did something brilliant now he has to follow tradition and fuck it up.  It will be Gonzo and he will redefin "activists" in a way O'Connor would be proud of.  Our only saving grace is Roberts will decide the dockett.

Oh BS!

GWB needs Alberto at AG to fight the WOT.

He does not need him at SCOTUS.

Geez.

Stare decesis, eh?  Wonder how many cries for Stare decesis there would be if we were talking about Dredd Scott...or, maybe, since she's so much about leaving things as-is, Plessy v. Ferguson ("seperate-but-equal") should've remained unchallenged?

All this bullsh!t about not ever challenging previous SC decisions on the sole basis of 'stare decesis' is a bitter pill when one considers the chaos this country went through because of the denial of straight language.  The Constitution may be imprecise in some places, but it plainly uses the phrase "the States" in reference to collective rights;  "the People", in reference to individual rights.  "The People" is the phrase of choice in both the 1st & 2nd Amendments, & no one seems to be questioning its intent in the 1st.

The confiscations in LA should be an object lesson to anyone who thinks it couldn't happen here.  Diane Feinstein & co. must've been salivating...

People should know that Diane Feinstein has a CCW; that Sarah Brady made a straw firearm purchase in Deleware & the feds didn't do a damned thing about it.

Hypocrites.

Quoted: The Constitution may be imprecise in some places, but it plainly uses the phrase "the States" in reference to collective rights;  "the People", in reference to individual rights.  "The People" is the phrase of choice in both the 1st & 2nd Amendments, & no one seems to be questioning its intent in the 1st.

In the Constitution, the word "state" appears 83 times. The phrase "the people" appears only 9 times — a scarcity that suggests that it was purposefully chosen in those 9 instances. The only one of those 9 instances where "the people" has been argued to mean something other than individual citizens is when it appears in the 2nd Amendment.

Quoted: Oh BS! GWB needs Alberto at AG to fight the WOT. He does not need him at SCOTUS. Geez.

Aschcroft was working just fine.  I saw a political cartoon in the paper today that sadly made me laugh.

Rewording the pledge "One nation under servailence" it had a photo of an eye (in the mold of 1984) with the words Patriot Act accross the top.  Sad but witty commentary rapped in a picture.

CRC I genuinely respect you, your efforts and insight make me glad their are some active idealists here.  I just think you give GWB to much credit sometimes.

Quoted: SCOTUS has not touched the RTKABA since 1939. I wonder why they have not been so eager to reaffirm a so called 'collective rights' view?

The answer is obvious yet subtle.  Ever notice how long it took the SC to "discern" the rights of non-whites under the BOR's.  Ever notice how SC decisions on "controversial" issues always just happens to coincide w/ popular opinion?  It's no accident.  SC always follow popular opinion.

My wife once said it best:  if it weren't for the NRA [& most likely other groups], the 2nd might've been staked long ago.  As it is, it's dying slowly by the noose, at the hands of state legislatures...& the SCOTUS looks on

OFFICIAL SEAL OF THE SCOTUS

I think the dems would pull out all the stops to oppose a Gonzo nomination and I'd be cheering them on.  

Newsflash for those here who still don't have a clue about the Constitution:

Even if the second Amendment doesn't apply to individuals, you STILL retain the right to own firearms simply because the Federal Government has no right to bar you from owning them.

The Federal Government does not (legally) have the power to pass a law forbidding the ownership of machine guns.  Nowhere in the constitution is that right given to them.  I defy anyone to tell me where in the constitution of the United States of America that it says that the Federal government may restrict the private ownership of weapons in any manner whatsoever.

Quoted: The Federal Government does not (legally) have the power to pass a law forbidding the ownership of machine guns.  Nowhere in the constitution is that right given to them.  I defy anyone to tell me where in the constitution of the United States of America that it says that the Federal government may restrict the private ownership of weapons in any manner whatsoever.

Supposedly it's under the "interstate commerce" clause as well as their powers of taxation.

Quoted: Quoted: The Federal Government does not (legally) have the power to pass a law forbidding the ownership of machine guns.  Nowhere in the constitution is that right given to them.  I defy anyone to tell me where in the constitution of the United States of America that it says that the Federal government may restrict the private ownership of weapons in any manner whatsoever. Supposedly it's under the "interstate commerce" clause as well as their powers of taxation.

Private ownershp of weaponry does not affect interstate commerce one freakin iota and we all know it.   The "interstate commerce" excuse is usually used as a one liner by people who've never read and have no idea what it means.

Quoted: Quoted: Quoted: The Federal Government does not (legally) have the power to pass a law forbidding the ownership of machine guns.  Nowhere in the constitution is that right given to them.  I defy anyone to tell me where in the constitution of the United States of America that it says that the Federal government may restrict the private ownership of weapons in any manner whatsoever. Supposedly it's under the "interstate commerce" clause as well as their powers of taxation. Private ownershp of weaponry does not affect interstate commerce one freakin iota and we all know it.   The "interstate commerce" excuse is usually used as a one liner by people who've never read and have no idea what it means.

You acquired the firearm from somewhere. If any materials came via interstate commerce, the firearm can be regulated by Congress. If no materials came via interstate commerce, the fact that you COULD have acquired it via interstate commerce but chose not to also has an effect on interstate commerce so again the firearm can be regulated by Congress.

They got ya' coming and going.

Not saying I agree with it - but that's the "rationale" they use.

Quoted: While I agree that nervousness in the Brady camp is a good thing, I think that the jury is still very much out on Roberts' position on the Second.  To predict how he will rule on a gun control case from a single quote during Congressional testimony is wishful thinking.

If you read, he has given no indication of HIS position.

He has only said what the courts have allready ruled, and how he views those rulings.

Saying it's an 'open question' means you can look for a SCOTUS case on 2A sometime soon, if he's confirmed, to 'resolve' the 'open question'

Look for the 'big fight' being #2, and I predict it will be someone worth fighting over...

Bush has nothing to loose, it's not like he can loose the election or anything...

Quoted: Quoted: Quoted: The Federal Government does not (legally) have the power to pass a law forbidding the ownership of machine guns.  Nowhere in the constitution is that right given to them.  I defy anyone to tell me where in the constitution of the United States of America that it says that the Federal government may restrict the private ownership of weapons in any manner whatsoever. Supposedly it's under the "interstate commerce" clause as well as their powers of taxation. Private ownershp of weaponry does not affect interstate commerce one freakin iota and we all know it.   The "interstate commerce" excuse is usually used as a one liner by people who've never read and have no idea what it means.

Unfortunately it's used by the court quite often and they supposedly read the thing once or twice.  Taxation is a wonderful avenue because it's the hardest to challenge.  The court has already ruled that the bar is nearly infinately high in challanging The Congress' power to tax.  They could allow us to keep our arms but set the tax at 500% and there would be little we could do.

Quoted: Quoted: Quoted: Quoted: The Federal Government does not (legally) have the power to pass a law forbidding the ownership of machine guns.  Nowhere in the constitution is that right given to them.  I defy anyone to tell me where in the constitution of the United States of America that it says that the Federal government may restrict the private ownership of weapons in any manner whatsoever. Supposedly it's under the "interstate commerce" clause as well as their powers of taxation. Private ownershp of weaponry does not affect interstate commerce one freakin iota and we all know it.   The "interstate commerce" excuse is usually used as a one liner by people who've never read and have no idea what it means. You acquired the firearm from somewhere. If any materials came via interstate commerce, the firearm can be regulated by Congress. If no materials came via interstate commerce, the fact that you COULD have acquired it via interstate commerce but chose not to also has an effect on interstate commerce so again the firearm can be regulated by Congress. They got ya' coming and going. Not saying I agree with it - but that's the "rationale" they use.

9th Circuit invalidated that view (ouch, I'm quoting the 9th?????)

However, a more traditional look at 'Commerce Clause':

On the subject of NEW, COMMERCIAL MFG machineguns: Unless you live in the same state as 'Joe's Machinegun Co', your weapon WILL move in interstate commerce to get to you. Therefore, unless the 2nd Ammendment protects you, the Commerce clause allows regulation (to include bans).

The feds have the direct constitutional power to regulate/ban the sale of any product accross state lines, and whereas there would be isolated exceptions, the creation of a MG-MFG industry in each individual state would be highly unlikely/unprofitable. Yes, folks like us could get out the drill press (ala 9th decision) and roll-our-own, but you wouldn't be able to order the FA reciever to finish that 1919 kit from ORF, for example.... And they could (and still can) ban the partskits, so you'd have to RYO a complete gun, or convert a semi...

Then we reach the 'constitutionally sketchy' part, which is that in a world where interstate commerce in MGs is legal but regulated, intrastate commerce in MGs 'affects' the market for interstate MFGed MGs, and thus the local brand can be regulated too (at least that's the theory).

Further, the current reg system is based on the power to tax, with the 86 ban being based on commerce...