Roberts on Guns

Earlier, I mentioned that I had heard a portion of the Roberts confirmation hearings that disturbed me. I dug up that section of the transcript and have some additional comments below.

From the Washington Post's transcript:

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.

Overall, that's a bit better (and certainly more complete) than what I remembered. Roberts stated that he's not taking a position on whether Lopez was correctly decided or not; he's stating what the Supreme Court ruled on, and noting that the lack of a jurisdictional requirement in the legislation as passed (eg, the "... in interstate commerce" phrase tacked on like a sore thumb to so much otherwise-unConstitutional legislation) was what allowed the Supreme Court to rule against it.

Obviously, and unfortunately, no one who actually wanted to be confirmed would jump up and say "The law was unConstitutional under the 2nd Amendment, regardless of whether the guns in question moved in interstate commerce or not." His response seems to me to be a fair and accurate statement of current law. While I'm uncomfortable with the weakness of the limitations that response would place upon the commerce clause power, it's what the Court appears to have said, and Roberts explicitly (twice!) ducked the opportunity to say what he actually thought about the merits of the case.

No reason for alarm here that I can see. It's not the answer I wanted to hear but it's the answer he needs to give to get confirmed, I think.

UPDATE: SayUncle has more on the Senate Inquisition questioning Roberts about the 2nd Amendment. Significantly, Roberts describes the US v Miller case correctly. That is, he specifically notes that despite a government "collective-right" brief, the Supreme Court addressed only the type of weapon at issue, saying that a sawed-off shotgun was not protected under the 2nd Amendment. This demonstrates both a certain familiarity with the case, as well as getting the right answer as to what that case held.

While this doesn't necessarily reflect on Roberts' 2nd Amendment opinions, his understanding of the current state of 2nd Amendment law is in accord with the gun-rights viewpoint. In that respect his answer is reassuring. We're dealing with someone who is familiar with the issue and does not appear inclined to engage in handwaving to justify gun control.

While Roberts did not announce his intent to overturn all gun control laws in the United States, I think he's given as much reassurance to us as he will be able to do without making himself unconfirmable.

UPDATE: David Hardy at Of Arms And The Law has his own analysis of Roberts' answers on US v Miller and Lopez.

UPDATE: Something about this answer kept pestering me. I've just realized what it is. Feinstein's last sentence, the actual question, and Roberts' first sentence responding to it. "At what point does crime influence commerce?" "Well, I think it does."

He can't actually mean that intrastate crime (eg, school shootings) influences interstate commerce sufficiently to allow Congress to regulate it, can he? God, I hope not.

Posted on 2005-09-15 00:02:45.0 by matthew@triggerfinger.org

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The problem with Roberts

I'm not sure if I said it on this forumn, but the problem with Roberts is this: From everything I've read of, and from the man, he is not a guy who is willing to overturn precedent. Whether it is for 'judical stability' or whatever, this a real problem. There is a ton of bad precedent out there, and we need justices with the stones to overturn it. I've yet to see _anything_ to suggest Roberts is that guy. His treatment of the Roe v. Wade questions during the confirmation hearings reinforces my view. If this guy is answering truthfully - then he has way too much respect for (even bad) precedent.

Posted by tragicallywhiteguy on 2005-09-15 12:03:35.0

Precedent...

He went beyond stating a "respect" for precedent: he explicitly stated that merely "being incorrectly decided" was not sufficient grounds to overturn a decision.

To my way of thinking that is just plain wrong. Overturning a decision and being incorrectly decided have an "iff" relationship. "Iff" is shorthand for "if and only if", i.e., if a decision was incorrectly decided then overturn it and only overturn a decision if it was incorrectly decided.

Trying to get a bad decision overturned should not be a crap shoot wherein you take a guess as to "other" factors that might influence the current set of judges; it should only be a matter of what is the correct analysis of the situation at hand as it relates to the Constitution.

Posted by Bob on 2005-09-15 18:38:13.0