Testing Ron Johnson claim on Russ Feingold, judges and Second Amendment

U.S. Sen. Ron Johnson took aim at challenger Russ Feingold in a campaign ad on the Second Amendment. In it, Johnson claimed he will protect the rights of gun owners, but Feingold won’t.

"Your right to keep and bear arms, your ability to protect your family is at risk," Johnson said in the ad, which was posted online in August 2016. "Sen. Feingold promises to protect those rights, but that's not what his record shows."

Johnson, a first-term Republican from Oshkosh, is mired in a tight re-election race with Feingold, a Democrat whom Johnson ousted in 2010.

While carrying a shotgun in one hand and ammo in the other, Johnson in the ad references the vacant U.S. Supreme Court seat ("One more liberal justice will flip the court") and says he has "held firm defending the Second Amendment and will continue to do so."

Not so with Feingold, Johnson claims: "During his 18-year Senate career, (Feingold) supported judges who voted to deny your individual Second Amendment right, and he’d do it again if elected to a fourth term."

That last sentence is key because it contains a specific factual assertion that Johnson uses to conclude Feingold would not protect the rights of gun owners — namely that Feingold "supported judges who voted to deny your individual Second Amendment right."

Johnson also says that while Feingold "promises to protect those rights," his voting record shows the opposite.

But do the facts really support Johnson’s conclusion?

Let’s take a look.

Confirmation votes and court rulings

When asked for backup, a Johnson campaign spokesman cited Feingold’s votes in the Senate to confirm the appointment of three U.S. Supreme Court justices — Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — who dissented in major gun rights cases.

In the 2008 case District of Columbia v. Heller, the Supreme Court held that the Second Amendment of the U.S. Constitution gives people an individual right to carry a gun for protection and is not merely a collective right tied to participation in a militia.

Breyer and Ginsburg dissented, with Breyer writing he did not think the Second Amendment protects an absolute right to own a gun, but instead "protects militia-related, not self-defense-related, interests." (Sotomayor was not yet on the court.)

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Two years later in McDonald v. City of Chicago, the Supreme Court effectively extended Heller. The court ruled that the Second Amendment, through the 14th Amendment, applies to states just as it does to the federal government. Breyer and Ginsburg dissented here too, as did Sotomayor.

(Feingold opposed the appointment of Supreme Court Justice Samuel Alito, who cast a majority vote in support of both Heller and McDonald. The remaining Supreme Court justices who participated in those cases were appointed before Feingold became a senator in 1993, except for John Roberts, who is discussed below.)

Thus, there is some truth to Johnson’s claim insofar as Feingold voted to appoint three justices who, after being confirmed, disagreed that the Second Amendment gives people an individual right to possess a gun.

But here’s what Johnson left out of the ad: Feingold also voted to confirm judges whose decisions have strengthened gun rights.

For example:

• Feingold voted to confirm Chief Justice Roberts, who voted in the majority of both Heller and McDonald.

• Feingold voted to confirm Wisconsin native Diane Sykes as a judge to the 7th U.S. Circuit Court of Appeals. In the 2011 case Ezell v. Chicago, Sykes authored a court decision that invalidated a city of Chicago ban on gun ranges within city limits.

• Feingold voted to confirm 3rd U.S. Circuit Court of Appeals Judge Thomas Hardiman, who in 2013 said the Second Amendment should protect an individual’s right to possess a handgun outside the home.

• Feingold voted in 2003 to confirm 9th U.S. Circuit Court of Appeals Judge Carlos Bea, who earlier this year joined a ruling that found a California county’s ordinance prohibiting gun stores from within 500 feet of residential areas violated the Second Amendment.

And while Feingold has said he favors mandating background checks on people buying firearms at gun shows, he also has said he was pleased with the outcome in Heller and he has explicitly expressed support for an individual’s right to own a gun.

"I’ve long believed that the Second Amendment grants citizens a right to own firearms," Feingold said in 2010.

Our rating

In a campaign ad, Johnson said Feingold "supported judges who voted to deny your individual Second Amendment right."

Feingold did vote to appoint judges who, after being confirmed, disagreed that the Second Amendment provides for an individual right to possess a gun. But Johnson failed to mention in the ad that Feingold also voted to appoint judges who have issued rulings strengthening gun rights. And Feingold has stated clearly he supports an individual’s right to own a gun.

Because Johnson’s statement contains some element of truth but ignores critical facts that would give a different impression, we rate it Mostly False.