The Volokh Conspiracy

One thing of interest to me is the author's statement:

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.

I think this bodes well for a Roberts' Court.

I mean, I knew all those things about the cases too, and I can do one better on Roberts- the 9th Circuit case he couldn't remember the name of was Silveira v. Lockyer.

And I don't follow it all that closely myself.

But note that Miller didn't address regular shotguns, just ones with sawed off barrels. Some 64 years later, I legally own a couple - with legal barrels, of course, as do millions of other Americans.

Roberts seems to categorically deny what many commenters on this blog have asserted. He says it is an open question whether the Second Amendment is an individual or a collective right. He thinks the "better" argument is the individual rights position, but his answer undercuts those who say that it's dishonest to argue that the amenmdent protects only a collective right.

On another subject, his answer shows the gamesmanship he's willing to engage in. If he can give such a direct answer to a question he ackowledges will come before the court, why can't he directly answer questions about abortion? I have lost some respect for Judge Roberts.

I expect better behavior from a Supreme Court Chief Justice than I do from a senator. Given the criticism I've seen from some conservatives about the integrity of Senate Democrats, I'm surprised you'd think Roberts was that low.

I would have a lot more respect for the judge if he would have either answered the abortion question as completely as the gun question, or answered the gun question as vaguely as he answered the abortion question. Roberts' refusal to do so shows a degree of hypocrisy I did not expect.

Note, my previous comments have said that I think Roberts is too conservative, but that he appears honest and modest. I also said that Democrats should let the nomination through. If Democrats want to hammer Roberts, they should hammer him for his inconsistency on deciding which questions to answer and which not to.

It would have been almost impossible for Roberts not to have given his opinion on "any" issue during days of questioning. His goal, the same as those who went before him, was to avoid taking positions on hot button issues. He has advanced skills in answering what he wants to answer and not answering what he doesn't want to answer. I hardly see this as a character flaw.

You can claim he's not being forthcoming, but I am not aware of any nominee who has poured out his heart and soul with regard to every conceivable question asked. This is a senate confirmation hearing, not true confessions.

I don't think that it logically follows that stating that you believe the case is stronger for an individual rights understanding of the Second Amendment is the same as sstating a position on "the gun control."

As the Emerson decision itself, the main modern case to find an individual right in the Second Amendment, it ultimately upheld the regulation at issue, demonstrating that an individual rights view is not, ipso facto, an "all gun control is unconstitutional" view.

Apart from Emerson, consider Senator Feingold, who stated that he believes the Second Amendment protects an individual right. Yet, the Senator has taken a moderate approach to gun control, falling into neither Senator Feinstein's prohibitionist realm nor Gun Owners' of America's absolutist one.

Thus, I don't see taking an individual rights view as analogous to a view on the constitutional correctness of Casey and Roe, where the very act of stating a contrary position must logically invalidate subsequent abortion jurisprudence.

Therefore, I think that the acknowledgement that it appears, from whatever Judge Roberts has read, that the Second Amendment provides an individual right, is not a matter of great predictive import, such as expressing a view on the abortion cases would be.

Has any court nominee been filibustered based upon his position regarding the second amendment? Is it a lack of integrity to answer the questions he wants to answer and not answer the questions you want him to answer? From all accounts, his integrity exceeds, by a substantial degree, that of his primary critics.

The man is going to be the next chief justice of the supreme court. I'm sure that those that disagree with some of the opinions he writes will inevitably argue that the results were inconsistent with his senate testimony and that he therefore lacks integrity. The echo chamber resonates on.

Not at all.

I'm saying that, even given an individual rights perspective on the Second Amendment, it does not follow that such a position automatically entails the reversal of any gun control laws, or, in fact, any policy change whatsoever, since, even under an individual rights view like that of the Fifth Circuit in Emerson, those regulations can very well survive constitutional challenges.

This is not the same as saying that Roe and Casey were wrongly decided. Staking out such a position inherently requires an overthrow of the abortion jurisprudence that has developed since 1973, and thus is much more likely to implicate a prejudgment of a particular case than taking a position, individual or collective, on the Second Amendment.

I think that you're incorrect, Tom.

Resolving the circuit split between interpretations of the Second Amendment doesn't settle any lawsuit in and of itself, since that must still be applied to the actual case before the Court- no advisory opinions, remember?

When one takes Judge Roberts statements that he sees himself as an "umpire" (set aside the complexities of the analogy for a moment), and couples it with his stated desire not to create the appearance of prejudgment, this difference is not so surprising.

As I pointed out above, this particular position in no way commits him to either side of an issue being litigated before the Court, and, as such, he felt free to answer within his self-imposed confines of testimony.

No, it doesn't.

Allow me to repeat myself, with two different examples:

1) The Supreme Court overturns Roe. Necessarily, there is no constitutional right to an abortion.

2) The Supreme Court declares that the Second Amendment protects an individual right. So what?

It is, in my mind, clear that in #1, the entirety of abortion jurisprudence is upended, with the removal not only of the "undue burden" test from Casey, but the entire constitutional framework.

However, I do NOT believe that the case is equally true in the second- as I said, so what? If you're really a public defender, you should know that an individual right is not absolute. Surely you've had some clients prosecuted for making threats, which, if the First Amendment were truly an absolute individual right, could not occur. Gray areas and other "wiggle room" exist in all individual rights.

As I noted, this was seen in the Emerson case, where the Fifth Circuit found that the gun control regulations at issue were constitutional, despite the fact that the court held that the Second Amendment protected an individual right.

While the intellectually lazy among gun regulation advocates would prefer a "collective right" since it requires absolutely no constitutional inquiry into the regulations, a collective right interpretation is by no means necessary to gun control regulation, as the outcome in Emerson aptly demonstrates. However, the continued validity of Roe is completely necessary to continued judicial protection of abortion.

It is this difference that I'm emphasizing- one can have an individual rights perspective on the Second Amendment and still recognize that regulatory limits on the right are valid. One cannot, however, reject the holding of Roe and Casey yet still see constitutional room for protection of abortion.

It is because of this fundamental difference that I believe Judge Roberts was willing to explain his views on the Second Amendment more fully than on abortion jurisprudence.