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A Scant Public Record

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Sunday, March 16, 2008

Not much in the public record indicates how the Supreme Court justices interpret the Second Amendment, even though advocates on both sides of the issue have searched their writings for clues.

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Chief Justice John G. Roberts Jr. said during his confirmation hearings in 2005 that the court's 1939 decision in U.S. v. Miller"sidestepped" the essential questions about the meaning of the amendment. Then he did the same, predicting that the issue would come before the court. "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," he said.

Justice John Paul Stevens joined the majority in a 1980 case, Lewis v. United States, that in a footnote seemed to recognize the Miller decision as saying that "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia.' "

Justice Antonin Scalia indicated in his 1997 book "A Matter of Interpretation" that the amendment restricts federal gun regulation, though perhaps not state efforts. He wrote that he interpreted the amendment "as a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense."

Justice Anthony M. Kennedy has given few clues about his views. In 1997, he joined the majority in Printz v. United States in striking down parts of the federal Brady Bill regulating handgun sales, but the decision was not based on the Second Amendment.

Justice Clarence Thomas added a concurring opinion in Printz that seemed to encourage a renewed challenge, employing a quote from Justice Joseph Story that is a favorite of gun rights supporters. "Perhaps . . . this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic,' " Thomas wrote.

Justice Ruth Bader Ginsburg wrote a dissent in 1998 that some have read as an indication that she does not believe "bear arms" has a strictly military connotation. "Surely a most familiar meaning is, as the . . . Second Amendment ('keep and bear Arms') and Black's Law Dictionary, indicate: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.' "

Justice Stephen G. Breyer has given little indication of his views. He was in the minority in the Brady Bill case.

Justice David H. Souter mentioned the amendment in a dissent in a 2000 case, in which he was joined by Stevens, Ginsburg and Breyer. The topic was the Bill of Rights. "While that document protected a range of specific individual rights against federal infringement, it did not, with the possible exception of the Second Amendment, offer any similarly specific protections to areas of state sovereignty," he wrote.

Justice Samuel A. Alito Jr. dissented as a circuit court judge in a decision that upheld the constitutionality of federal restrictions on the possession of machine guns. He said at his confirmation hearings in 2006 that his dissent was not based on the amendment but on his reading of Supreme Court precedent on the Commerce Clause.


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