Alphecca

Roberts on Gun Control

I'm taking these segments from the transcript of yesterday's proceedings as they relate to Roberts and any hints of views he might have on matters that relate to gun control. This is from the interrogation by Sen. Feinstein:

FEINSTEIN: I won't go there. Let me go somewhere else.

Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.

It goes through most of the time scrubbed pretty good before it gets to the president.

Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.

'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.

Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.

And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.

Now, at what point does crime influence commerce?

ROBERTS: Well, I think it does.

And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.

FEINSTEIN: Right, right.

ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...

FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.

ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement.

And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.

ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause.

I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says in interstate commerce. And that's -- at least as I understand the Lopez decision -- what made it unusual.

FEINSTEIN: That's very helpful. You might get it back again someday, with that fix.

Let me turn to something else...

SESSIONS: We have talked about the commerce clause and there has been a lot of criticism of some of the cases.

I think there have only been two significant commerce clause cases maybe in the last 40 years, Lopez and Morrison. Senator Feinstein and you had a nice exchange about Lopez. I would certainly agree with your analysis.

Had the Congress placed in there a requirement that the firearm had been traveled in interstate commerce, I believe that statute would have been upheld. We could pass it again with that simple requirement, and virtually every firearm will have traveled in interstate commerce. A few states have manufacturers.

When I was a federal prosecutor, I prosecuted a lot of those cases. As a young prosecutor, I was sort of an expert at it in the '70s, and I proved sometimes the interstate commerce by simply putting an agent on there saying there was no gun manufacturer in Alabama. Or it said, Made in Italy, on it. I remember I got that affirmed one time as proof beyond a reasonable doubt that it was not made in Alabama.

So Lopez, I believe, is a good decision.

Also, with regard to crime, I would note that we've always had that nexus with interstate commerce. As a federal prosecutor, it's not prosecution for theft, it's prosecution for interstate transportation of stolen property. That's the federal crime. Theft is prosecuted only by the state courts unless it's theft from an interstate shipment. That's a federal crime. It's not stealing an automobile, it's interstate transportation of a stolen motor vehicle. ITSMV is the federal crime.

The Hobbs Act, the Extortion Act to use against politicians, you have to have an interstate nexus. And I've had cases where bribery was proven, but we were not able to prosecute it federally because it did not have an interstate nexus. RICO, even arson cases have to have it there.

So I just want to make sure that -- let me ask you this.

In general, wouldn't you agree if someone in Pennsylvania picks up a rock and murders their neighbor, that is a crime unreachable by federal prosecution under traditional interpretations of commerce clause and the reach of the federal government?

ROBERTS: Well, again, barring special circumstances of the sort you were talking about, that's generally something addressed by state authorities.

SESSIONS: We need to get this thing straight.

We have some people complaining we are federalizing too many crimes and then complaining that we are striking down some that go too far. States should prosecute these cases locally and effectively, and should do that -- guns in schools, and guns and that kind of thing.

In the Violence Against Women Act, that was a commerce clause case, where a woman was raped and then sued the people who assaulted and raped her. She wanted to sue in federal court under the Violence Against Women' act.

What the court held there was, as I read it, the court limited Congress' power to provide for civil damages, money damages. She could sue that rapist in state court, but not for money damages in federal court. Is that the holding of that case?

ROBERTS: That's my understanding of what the court held in the Morrison case, yes.

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.

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.