BRADY - ROBERTS NEEDS EDUCATION ON SECOND

[FWiedner]

BRADY CENTER - SUPREME COURT NOMINEE ROBERTS NEEDS EDUCATION ON SECOND AMENDMENT

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)

http://www.bradycampaign.org/press/release.php?release=681

*FW Note:

I still haven't figured out what planet these people live on.

Miller didn't address the individual vs. collective argument, it addressed whether the firearm in question was of a type appropriate for militia use.

Further, it is outside of the scope of court authority to address or decide the issue.

Men have a right to Keep and Bear Arms.  Period.  No legitimate government has authority to deny or to infringe that right.

 :-)

[unspellable]

The Supreme Court's decision concerning the suitabliity of a short barreled shotgun for miltia use was itself flawed, since the short barreled shotgun was issued to the US Army by the thousands in WWI and saw use iin WWII as well, these two wars falling on either side of the decision time wise.

The Miller legal team never showed up for the hearing.  It's a seriously flawed case at best.