"American Morning" co-host John Roberts asked Hostin about the Supreme Court case 48 minutes into the 6 am hour of the CNN program, since the Court’s decision on the handgun ban is expected to come down by the end of June. For the bulk of segment, the legal analyst detailed the origin of the case and gave a summary of what took place during the oral arguments in March.
It isn’t clear where Hostin got her statistic, that "most federal courts and the Supreme Court has found... that it's a collective right." According to the NRA-ILA’s website, there are actually only three U.S. Court of Appeals decisions that use the term "collective right," and all of three were decided in the 1970s. The only time that the Supreme Court has directly taken up the issue of the Second Amendment was in the 1939 case, United States v Miller, which dealt with the regulation of sawed-off shotguns. It didn’t resolve the question whether the Second Amendment dealt with an individual right or a so-called collective right for a militia.
Also, there are quotes from several of the key Founding Fathers that run contrary to Hostin’s claim that "the Founding Fathers... wanted to make sure that the new federal government did not ban state militias from organizing."
As to whether the Supreme Court is actually "conservative," one only need to point to the recent move by the Court to grant detainees at Guantanamo Bay a day in court to challenge their detention, not to mention plenty of other cases over the past decade. The Court, like the country, is actually divided, with one justice, Anthony Kennedy, playing the role of the "swing vote."
Speaking of the ruling in favor of the Guantanamo Bay detainees, that ruling was described by many in the media as a "setback" for the Bush administration, or as CNN justice correspondent Kelli Arena put it on June 12, the day of the ruling, a "major defeat" for the administration. One wonders how the media will spin any pro-Second Amendment decision by the Court.
The full transcript of the Roberts/Hostin segment from Monday’s "American Morning:"
JOHN ROBERTS: Forty-eight-and-a-half minutes after the hour. Never in the U.S. history has the Supreme Court ever said what the Second Amendment means when it talks about the right to bear arms. But today, the justices may answer that very question. It's a challenge to a law that bans the possession of handguns in Washington, D.C.
Joining us now with more on the case is ‘American Morning’s’ legal analyst Sunny Hostin. So what's at stake here in this ruling?
SUNNY HOSTIN: What is at stake is every single American citizen's right to own and possess a gun, and that really is the crux of it. And you're right -- the Supreme Court really has never said that, that an individual has the right, and let's take a look at actually what the Second Amendment says in particular. The Second Amendment says, ‘a well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ What most federal courts and the Supreme Court has found is that really doesn't mean that you can possess a gun. It means that the military can possess a gun, that it's a collective right, and that is really going to be the balance.
I think what's fascinating about this case is that the way it came up, is one woman, a computer software designer -- she received death threats from a local drug dealer in D.C. He actually broke into her home and threatened to kill her because she had sort of organized the homeowners to report drug activity in her neighborhood. The police officers determined that, you know, she was really at risk here and they advised her to get a gun. But in D.C. you can't have a handgun and that is really how this case came up. So, it really is -- its very essence John -- the right of an individual to possess a gun.
ROBERTS: So the oral arguments were heard back in March. At that time, did the justices give any kind of indication on how they might rule?
HOSTIN: See John, you're always asking me to predict verdicts or to predict how the Supreme Court is going to rule. But I think that any...
ROBERTS: Isn't that what everybody wants to know?
HOSTIN: You're right, and I don't want to guess at what the Supremes are going to do. But I think in this case, when you listen to the oral argument, it's pretty clear that they're probably going to invalidate the ban. In particular, Chief Justice Roberts -- and it's a conservative court right now -- said if it is limited to state militias, why would they say -- Founding Fathers, ‘the right of the people,’ and even Justice Kennedy, who is usually the swing vote, said, in effect, the Amendment says we reaffirm the right to have a militia. But in addition, doesn't it say there is a right to bear arms? So when you look at that, I think what we're going to hear today -- and I hate to guess -- but I think what we're going to hear is that the D.C. ban is no more.
ROBERTS: Let me just get back to something that you said initially when you showed us the Second Amendment. You said -- read militia and then you said gives the military the right to have weapons or would it give citizens militia?
HOSTIN: Well, the Founding Fathers, when this happened, they wanted to make sure that the new federal government did not ban state militias from organizing, and so I think really what it meant then was sort of that a military or a state police type could own a gun, not just the individual that was threatened by a drug dealer. But this Supreme Court is saying, I don't know, I think it's a little bit broader than that.
ROBERTS: An important ruling today. We'll be watching it. Sunny, thanks very much for that.
HOSTIN: Thanks.