TargetTalk

On Tuesday, the full U.S. Court of Appeals for the D.C. circuit, declined to review the decision in Parker v. District of Columbia -- the case in March that upheld the Second Amendment as an individual right and struck down Washington, D.C.’s handgun ban. The decision not to review the case means that an earlier ruling by the three-judge panel will stand.

In commenting on the decision, D.C. Mayor Adrian Fenty noted that the District’s gun ban is "…a critical part of the District’s crime-control strategy." This strategy, of course, has been an abysmal failure, as year in and year out, D.C., currently the nation’s murder capital, ranks at or near the top of the list of the nation’s most violent cities.

The city now has 90 days to decide whether it wishes to petition the Supreme Court to hear the case.

The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect “the right of militiamen to keep and bear arms,” but rather “the right of the people.” The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. Again, we point out that if the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit — and thus the most appropriate to express in a political document.

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?

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." (Emphasis mine.)

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.

(3) The Court cites as its authority, not the then existing collective rights cases (i.e., City of Salina) but the existing individual "hyrbid" cases (i.e., Aymette).