This year marks the tenth anniversary of Heller v. District of Columbia. Before Heller, courts had split on whether the Second Amendment recognized an individual right to keep and bear arms or if that right was limited only to those citizens participating in organized militias. Justice Antonin Scalia, writing for the majority, held that the Second Amendment recognized a right of individuals to keep and bear arms for private self-defense. In the wake of Heller, most lower courts have rejected Second Amendment challenges to state and federal gun control laws. The decision, however, left many questions unanswered concerning the scope of the Second Amendment.
In this Telefoum, Professors Nelson Lund and Darrell Miller will debate the original meaning of the Second Amendment, whether Heller was correctly decided, whether lower courts are faithfully applying Heller, and how Heller might apply to future legislation regarding the right to keep and bear arms.
Prof. Nelson Lund, University Professor, Antonin Scalia Law School, George Mason University
Prof. Darrel Miller, Melvin G. Shimm Professor of Law, Duke University School of Law
Moderator: Dr. Robert Leider, Associate, Arnold & Porter DC, Adjunct Professor of Law, Georgetown University School of Law
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Recording: Welcome to the Federalist Society's Practice Groups Podcast. The following podcast, hosted by the Federalist Societies Criminal Law and Procedure Practice Group, was recorded on Friday, April 13, 2018 during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to the Federalist Society's teleforum conference call. This afternoon, we will be discussing the 10th anniversary of Heller. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at the Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call. Today, we are happy to have with us Professor Nelson Lund, of, Professor of Law at Antonin Scalia Law School at George Mason University; Professor Darrel Miller, Professor of Law at Duke University School of Law; and as our moderator, we have Dr. Robert Leider, an Associate at Arnold & Porter D.C., and an adjunct professor of law at Georgetown University Law School.
After hearing from our speakers, we will go to audience Q&A. Thank you for joining us. Robert, the floor is yours.
Robert Leider: Thank you, and good afternoon. This June marks the 10th anniversary of the Supreme Court's decision in District of Columbia versus Heller. By five to four vote, the Supreme Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in the militia and to use that arm for traditionally lawful purposes, including self-defense within the home. Although Heller answered whether the Second Amendment is an individual or collective right, Justice Scalia's opinion for the Court has been criticized by scholars both on the Left and on the Right.
Over the past 10 years, lower courts have also grappled with Heller's implications. Plaintiffs have brought challenges to laws that restrict the ability to carry firearms in public, ban the position of certain semi-automatic firearms deemed assault weapons, and prohibit the possession of firearms by people convicted of certain crimes. With a few notable exceptions, lower courts have rebuffed these challenges and generally read Heller to be consistent with strict regulation of firearms.
Today, we will have a debate about the original meaning of the Second Amendment, Heller, and whether lower courts are faithfully applying the Supreme Court's decision. With me are Professors Nelson Lund and Darrel Miller. Professor Lund is presently a university professor at the Antonin Scalia, Sch-school of Law, and served from 2003 through 2013 as Patrick Henry Professor of Constitutional Law and the Second Amendment. Professor Miller is the Melvin G. Shimm Professor of Law at Duke University School of Law. Both have published extensively on the Second Amendment and we are excited to have them here today. Welcome.
Prof. Miller: Thank you.
Professor Lund: Thank you.
Robert Leider: Before we jump in, let me briefly describe our debate format. Initially, I will ask questions. Professors Lund and Miller will each have two minutes to respond with an optional one minute rebuttal, and after about 40 minutes of debate, we will open it up for audience questions.
So, with that, I would like to begin by asking our panelists to give us a brief summary of Heller. And Professor Lund, could you start us off by giving us the factual background of the case and explain Justice Scalia's majority opinion?
Professor Lund: Okay, let me start with the Second Amendment, I guess most people on this call are familiar with what it says, but I'll just quote it. "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Heller was a Second Amendment test case brought to challenge the District of Columbia's disarmament law, which forbade citi, civilians to possess a handgun or an operable rifle or shotgun. There was almost no relevant precedent, so the Court undertook an investigation of the original meaning of the Second Amendment.
The threshold issue was whether the Second Amendment protects an individual right to the private ownership of firearms, or a right of the state governments to maintain militia organizations. Justice Scalia's majority opinion begins with a detailed textual and historical argument in support of the individual right interpretation. He concludes that the right of the people refers to an individual right, just as the identical language in the First and Fourth Amendments does. The Constitution does not refer to a right of the states or to a right of the militia or a right of militia men. Scalia emphasizes that the right of the people to keep and bear arms was already recognized in a long legal tradition going back to Great Britain, where it had always been a private individual right to have weapons needed for self-defense, either against common criminals or against a would-be tyrant.
The prefatory phrase in the Second Amendment merely explains why this preexisting legal right was codified in the Constitution. Because the traditional militia consisted of all able-bodied adult men, a federal law disarming these individuals would effectively disable the militia and leave the people vulnerable to oppression by a politicized federal military organization. Scalia offers extensive evidence in support of these threshold conclusions. For the moment, I'll just say that there's no record that anyone articulated the states' right interpretation during the founding period or for many decades thereafter.
After demonstrating that the Constitution protects an individual right that serves that natural or inherent right of self-defense, Scalia concluded that the DC handgun ban was unconstitutional. Because this law was a prohibition on an entire class of arms that Americans choose for the lawful purpose of self-defense, Scalia maintained that it would have to be struck down under any of the standards of scrutiny that the Court has applied to enumerated Constitutional rights. He then discusses and endorses a number of exceptions to Second Amendment protection, which we mi-, which we might wanna discuss a little later.
I'll just conclude by saying that I don't agree with everything in Scalia's opinion, but I do think that his principle threshold conclusions are solid and I also think that the DC handgun ban was unconstitutional because it infringed on that right without sufficient justification.
Robert Leider: Thank you, Professor Lund. So, in, in addition to Justice Scalia's majority opinion, there were two dissents. One by Justice Stevens, and another by Justice Breyer. Professor Miller, could you please summarize those?
Prof. Miller: I'd love to. So, Steven wrote a dissent in which he adopted uh what may be called an originalist, or at least a heavily historically-inflected approach, uh, contra to um Justice Scalia's um, uh not approach, but his reasoning. In, in other words, both Justice Stevens and Justice Scalia uh rely on history and text, but come to different conclusions with respect to the right.
So, in Justice Stevens' reasoning, the issue was about the scope of the Amendment, not about whether it was quote unquote individual. In his opinion saying that the right as individual doesn't say anything about the kinds of uses it protects. There was nothing in the Second Amendment according to Justice Scalia that itself indicated that it was meant to constitutionalize any common law right to self-defense. In Justice Stevens' dissent, he noted that the founders knew how to protect personal uses of firearms, they knew the words self-defense, and they didn't use either formulations in the Second Amendment as contrasted with some contemporary, state-level right declarations in Pennsylvania and Vermont, which did encode a personal use uh terminology.
Justice Stevens suggested that the proper way to read the Amendment was to read it forward from the well-regulated militia clause to the the end and not as Justice Scalia had done, read it backwards starting from the latter quote unquote operative half and working forward. He adds in uh his opinion that if in fact that operative section was so clear as to not needing, uh need any clarifying preamble, it wouldn't have taken 18 pages of majority opinion to explain.
Reasoning from the beginning of the Amendment to its end was the normal way a reader of English construes text and would have been the way in 18th century speaker English would've used, uh have understood uh the uh terminology, as well. With the militia purpose in mind to keep and bear arms, the phrase "bear arms" derives from the Latin meaning "to carry war equipment" and was overwhelmingly used in the military context at the time of the framing of the Constitution. And it was that meaning that was most common as is evidenced of the repeated use of "bear arms" in the military context, uh, and not the general carry weapons construction of the majority.
Stevens notes in the footnote in his uh dissent, that the professors of linguistics had filed an amicus brief that documented 115 contemporaneous texts with the Second Amendment and they had all used the term "bear arms" in a military context except for five of those texts. Keep, according to Justice Stevens, merely recognized that the arms could be borne, uh that would be borne for militia dirty, duty could be kept in a private home and not necessarily in a depot or armory. And to keep and bear arms, then, as a unitary idea, meaning to both have a right and a duty to have uh arms ready for military service, uh, in the militia. Reading it this way, in his words, shows that the right was one to quote, "Secure the people a right to use and possess arms in conjunction with service in a well-regulated militia."
Moreover, according to Justice Stevens, this had been the overwhelming con of the this provision from its enactment from Miller up until 2008 when Heller was decided. The majority, according to Justice Stevens, wanted to seem like conservators, but what they were really engaging in was a form of judicial activism, according to his dissent, by construing the Second Amendment in a way that it escaped uh the wisdom of over 200 years of juris prior. Simultaneously, according to the uh the dissenting opinion, it was inviting lower courts to engage in a case-by-case oversight of firearms policy that Justice Stevens thought was unwise.
Justice Breyer also wrote a dissent. Uh, he joined Stevens' dissent, but wrote separately to pursue his practical objections to the majority opinion. His point was that the gun-control regulation met constitutional muster, even if one believed that the Second Amendment protected some kind of right to keep and ar- uh bear, uh keep and bear arms for private purposes like individual self-defense. His point was two-fold. First, that the kind of regulation here was sufficiently tailored to the specific problem of urban gun violence caused by the possession and use of handguns. According to Justice Breyer, people still had access to other kinds of weapons, including long guns, and the costs and benefits were the over- or under-inclusiveness of the District's regulation was well within the bounds of what a re-, legislature could reasonably think is effective. In Justice Breyer's opinion, it wasn't for the Court to second guess this judgment.
Second, Justice Breyer was critical of the majority opinion of the methodological matter because the Court had failed to offer a guidance about the actual appropriate way to examine future Second Amendment claims. All the kinds of the exceptions that the Court had carved out, which Professor Lund had identified, felon and possession laws, law restricting the um the guns in sensitive places, et cetera, these are all based on some kind of cost-benefit calculation made initially by legislatures and reviewed by a court. Justice Breyer would've just made this review more transparent in terms of what the Court was examining, in terms of such trade offs, rather than hide them in a fog of unsupported historical citations.
Robert Leider: Thank you, Professor Miller. So, we're gonna start now with the debate portion and my first question is to uh wh-... Professor Miller will start off with the first question, and my question is, wh- So, one of the sharpest points of disagreement between Justice Scalia and Justice Stevens is over the definition of the militia and its relationship to the people. According to Justice Scalia, the constitutional militia consists of all able-bodied men and the best analog today we might think of is the pool of men required to register with the Selective Service system. Justice Stevens paints a very different picture, he understands the militia more narrowly as comprising only those citizens enrolled in organized state military service, and today that might be members of the National Guard, basically a narrow pool of volunteers.
So, at the time of the framing, what was the original understanding of a well-regulated militia? And what was the relationship between the militia and the people identified in the Second Amendment?
Prof. Miller: Well, I mean, this is a, obviously, a, a central disagreement between the part-, uh, the, the majority and the dissent. And in some senses, the, the question is now academic because Heller I take to be the law of the land and Heller says that A, an individual right to have a firearm in the home for personal purposes, like self-defense is, is what the Second Amendment means. So, um into the extent that you're asking me to uh to sort of relitigate Heller and relitigate sort of the original meaning, um, I think it, it's fair to say that the founding generation had quite a different conception in many ways about who uh could be members of uh this militia. They clearly uh thought that uh militia service was a duty. They thought that militia service was a duty that I think was incumbent to uh certain uh portions of the society. They had a uh what might be thought of as a sort of r, Republican value kind of conception of um the duty to uh prepare, uh to defend one state, and uh in general uh, the, the nation. Um, that's a different conception, I think, in terms of its selectivity and inclusiveness that we have today.
Uh, I also think that as a matter of sort of original, uh original uh understanding, or at least original intent, um it, it's fair to say that um their concern was against something like, uh, the existence of a standing army, um but as history shows, it was very uh clear uh shortly thereafter that uh the original intent, to the extend it was to rely upon, uh, a militia rather than a, uh, professionalized army to defend the nation um just didn't last very long. At some point, um, the nation uh realized that uh relying on a, on a sort of civic republican value of a, of a republican militia just wasn't going to do the job. So, uh-
Robert Leider: Thank you.
Prof. Miller: Uh, yep.
Robert Leider: Sorry.
Prof. Miller: Sure.
Robert Leider: Thank you, Professor Miller. Professor Lund?
Professor Lund: Uh, okay, this is uh rather complicated as Professor Miller has suggested. Um, and I'll try to say this as concisely as possible. Um, I don't think that Justice Scalia's opinion handles the relationship between the militia process and the operative clause very well. So, I'm just gonna extremely briefly summarize my view, which is a little different. Uh, to understand why the preface is there, first you have to recognize that grammatically, it does not modify or alter the operative clause in any way. Then you have to ask, why is it there? And that goes back to the convention, the Constitutional Convention, where there was a huge debate then, and in the ratification debates, over this massive increase in federal military power, which caused a lot of concern uh among a substantial portion of the citizenry.
When the first Congress drafted the Bill of Rights, uh there was no intent to change anything in the original Constitution, and the original Constitution gave the federal government virtually plenty-plenary power to regulate the militia. The Anti-Federalists especially were very worried that um, that the federal government was given too much federal, uh too much military power, uh, but the Second Amendment did not detract from that federal power at all. So the federal government has almost plenary power to regulate the militia, and that includes defining it, uh defining the militia as it sees fit.
So, the preface in the Second Amendment is a way, I think, of, uh, paying respect to the people's fear of standing armies without doing anything to diminish the right of the people, which is what's actually, which is what is actually protected. And if you think about the term "well-regulated militia," the Second Amendment doesn't do anything to change the federal government's power to regulate the militia, or to tell it it must regulate the militia, or anything else. All it does is say a well-regulated militia, and uh, would, uh, people would then understand that a well-regulated militia is one that is not inappropriately regulated and one inappropriate regulation, the one that's forbidden by the Second Amendment, is a federal law that disarms American citizens.
Robert Leider: Thank you, Professor Lund.
Prof. Miller: So, I-
Robert Leider: So, another profound-
Prof. Miller: Oh, sorry. Sorry. I, uh, I just wanted to chime in just uh three points. So the first is that um I think uh Professor Lund is right in terms of the way Justice Scalia understands it, although as I indicated, my opening remarks, there's some debate about whether that's an accurate understanding of linguistic conventions in the 18th century.
The second is that Justice Scalia does actually talk about two different kinds of militias. There's the citizen's militia, the unorganized militia, and then there is the actual organized militia. I don't know what Justice Scalia thinks about the ability of, for example, uh Congress to regulate all of the unorganized militia itself.
And the third thing I think is, um, we also have to understand the relationship between the militia and the citizens, not only through the lens of the 18th century, but through the lens of the 19th century where in fact uh the uh militias become hotly contested in terms of the, their composition and what they do with respect to uh the Civil War and Reconstruction.
Robert Leider: Th-, uh, thank you, Professor Miller. Professor Lund?
Professor Lund: If I, I I may just on that very last point, uh, it's a, it's an important point, uh, apart from the original meaning of the, of the Second Amendment in the, in the late 18th century. And there was a very extremely interesting episode um during Reconstruction where Congress was very concerned about militias that basically consisted of ex-Confederate soldiers terrorizing the black population. And so a bill was drafted in Congress, uh, to disarm these uh militias in the southern states, and an objection was raised that that violated the Second Amendment because uh it protects the right of those men to uh to possess weapons. And a response to that objection, the bill was modified so that it disbanded the militia, but did not disarm the individuals who had previously been in the militias.
Robert Leider: Th-, thank you-
Professor Lund: So, there was an understanding there very similar to my understanding of the Second Amendment.
Robert Leider: Thank you, Professor Lund.
So, on a related topic, another profound disagreement between Justice Scalia and Justice Stevens has to do with the underlying reasons why the Second Amendment was codified. So both agree that the framers feared standing armies and that this fear motivated the adoption of the Second Amendment, but their agreement ends there. For Justice Scalia, the right to keep and bear arms gave the citizenry the means to defend themselves both against private violence and against governmental tyranny. For Justice Stevens, the right to keep and bear arms is the means by which state governments protect their sovereignty against the federal government.
What is the relationship between the Second Amendment, the framers' fears of standing armies, and the right of revolution, and how do we understand the Second Amendment in light of other constitutional provisions defining treason and authorizing the federal government to suppress insurrections? Professor Lund?
Professor Lund: Uh, well, I, I think it, let me say first that, uh, that people at the time, uh, I don't think distinguished at a fundamental level between uh your right to defend yourself against a common criminal and your right to defend yourself against uh a tyrant or a would-be tyrant. Um, that understanding goes all the way back to Great Britain, it's articulated pretty clearly by Blackstone. Um, so when they, when they decided to enact the Bill of Rights, when they drafted the Bill of Rights, they were, all they were doing was saying that the fed, the new federal government would not be permitted to do various things that a lot of people didn't think they would've been able to do anyway.
So, in that sense, they didn't have any reason to think about the exact relationship um, uh between, uh, the militia and standing armies, and, and that kind of thing with respect to the Second Amendment. It was just a completely non-controversial thing. Nobody thought that the federal government should have any right to disarm American citizens. That left the federal government huge amounts of power not only over the arm, over to create a standing army and regulate it, but to regulate the militias. Um, so nothing in the Second Amendment uh would've been controversial or was controversial at the time.
Now, what's happened since then is that the concern about the danger of standing armies, which was foremost in the minds of the people who were thinking about the problem then, has subsided to near zero level. On the other hand, concern about gun regulations that infringe on people's ability to protect themselves from common criminals has increased dramatically. So there's been a shift historically in what was foremost, what the foremost concern uh was, but both of them were already there in the Second Amendment.
Robert Leider: Thank you, Professor Lund. Professor Miller?
Prof. Miller: Right. So, um, first of all, I'm not quite certain that I agree that uh Justice Stevens believes that the only form of armed self-defense that can occur is through an organized militia. Um, so in terms of the framing of the disagreement, I'm not quite sure I agree that that's true.
But, um, I think your larger point, which is, uh, and one that Professor Lund had identified, which is um the separate levels of abstraction and uh no distinction between um defense against a common criminal and defense against a tyrant. I think I have a slightly different understanding of what the common law assumptions were um at the time that the, the Amendment was ratified because um, as um, as y'know, as you might know, the, sort of the law of self-defense, the, the notion that you could um, uh simply use arms to um, uh, in your personal capacity to apprehend or to kill um, a criminal um was quite a bit different uh in their conceptions and ours. We think of it as a uniquely personal right. I think it's fair to say, with the exception of defense in the home, that uh the public use of weapons to apprehend or to kill criminals uh was also sort of understand to be derivative of the power of the state. In fact, the early common law in England, uh, of self-defense um there was no true self-defense. It ... All, all homicides done on one's own volition uh were crimes and you had to seek a special pardon from the sovereign.
Now, over time that changed, but uh the distinction between what one might think of as excusable homicide and justifiable homicide, that is homicide for which there is some fault and homicide for which there is no fault, uh the axis of division between that was um typically in uh the scenarios where an individual was doing self-defense in order to effectually, what was essentially a police action.
Robert Leider: Thank you, Professor Miller.
Professor Lund: If I could, if I could just, uh, add to that. It's an important, it's an important point, and I'm gon, I'm gonna focus on, on where I agree with Professor Miller which is at the time, what we think of as the right to uh to use lethal force against criminals was a, both an individual right to defend your own life under the liberal principles of Locke and the Declaration of Independence, but it was also a duty, um, to defend the community against, uh, against criminals. And that came up in a, in a kind of very striking way at the trial uh involving the Boston Massacre, where the, the only issue in the trial was who was the aggressor, the British troops or the, or the upset citizens. Uh, but the judge in the case made clear that the citizens not only had a right to bring weapons to the, to the town square wherever it was, but they had a duty to bring weapons, and if there were any chance of trouble, because it would be their duty to uh to help police and stop any, uh any illegal behavior. So, again, the two things were tied up, the duty and the right were tied up together in people's minds.
Robert Leider: Thank you, Professor Lund. Professor Miller?
Prof. Miller: Uh, uh, you want me to respond? Yeah, I, I-
Robert Leider: Don't have to, you have the option to.
Prof. Miller: Yeah, I, I, I, I think that's right. I think where maybe Professor Lund and I disagree uh is to the extent that, y'know, the duties um and the idea that individuals uh acting on the indi, individual initiative are basically conferring or some sort of public good, I think that suggests that there is more room for government regulation in that space than it, than the peer sort of liberal right um sort of philosophy that we typically sort of today conceive of self-defense as, as being a part of.
Robert Leider: Thank you. We'll come to the regulations in a moment. I have one last question on the uh individual versus collective right, uh, topic. Uh, so reading Justice Stevens' opinion, I have some question of how he separates the right to bear arms from the mere duty to bear arms when called for military service. And a right implies that there's some action that the government can't take, and I see at least two possibilities for the right in Justice Stevens' opinion. First, that members of the National Guard may, at their own discretion, maintain and use private weapons for military service, even in violation of federal law. Or second, that states may authorize their citizens to possess weapons for military purposes, and once the state government gives that authority, citizens may keep arms at home in violation of federal law.
If Justice Stevens' had prevailed, what circumstances would the right to keep and bear arms be enforceable today. Professor Miller?
Prof. Miller: Well, I suspect that if you had a scenario in which um the um, uh, the, the national government had said, y'know, we're going to regulate the militia in such a way that we're going um basically deny anybody, any national guard members, any sort of weapons and we're also going to um, I suspect he would suggest, y'know, confiscate, do a widespread confiscation of all private arms, I, I, I ... My sense is that that would be a um, a uh, an enforceable right, a deprivation that is I have right to have an arm as a member of a, uh, militia and you denied me that right, and therefore it's a violation. I suspect that that would be so, um, uh. There are lots of federalists, federalism sort of barriers to that, including the fact that even though the national government has the, uh, duty and the right to discipline, train the uh, militia, the heads of the militia are still sort of state uh, authorities, and so I think there would be um certainly some political safeguards to such an action. But that's my, that's my sense of it.
Robert Leider: Thank you. Professor Lund?
Professor Lund: Uh, I just don't know what, what Justice Stevens would say if he were asked to elaborate on his position. I mean, the states' right position that he adopts has always had the problem that it seems to imply that the state governments have rights to create some kind of army that the uh federal government cannot deny to them. And that seems to be inconsistent with at least one, and possibly two provisions in the Constitution. One, uh, the, the, the provision that forbids them to keep state armies without um, without federal consent. And second, the virtually plenary authority that Article One gives to the federal government over the militia.
So, nobody at the time thought that any, indicated in any way, that anything of the Second Amendment was amending or repealing either of those provisions. So, I suppose that means that uh Justice Stevens' position on the first issue of states' rights were adopted, they would have to figure out some way to um, to, to, to limit the logic of, of their own decision and I dunno, I don't know how they would do that.
Robert Leider: Thank you.
So, we've discussed the militia, the people, and the security of the free state. I would like to shift now to the regulation of the right, and first the types of arms that the Second Amendment protects. Justice Scalia defines the arms protected by the Second Amendment as those arms in common use at the time for lawful purposes like self-defense. Extrapolating from the common law prohibition against carrying dangerous or unusual weapons to the terror of the people, Justice Scalia suggests that quote, "Weapons that are most useful in military service, M-16 rifles and the like, may be banned." He recognizes that this interpretation limits the degree of fit between the prefatory clause and the protected right, but he says, "Modern developments cannot change our interpretation of the right."
So, I have a two-part question here. First, is Justice Scalia being a faithful originalist in this passage? And second, what are the arms that the Second Amendment protects at least as the Amendment was originally understood? Professor Lund?
Professor Lund: Uh, well, I don't know how faithful Justice Scalia's being to the original meaning of the Constitution, since he pays no attention to it, and just makes these announcements on the basis of no analysis at all. Um, so I think that there's good reason for that, uh which is first there was very little to no demand for regulation of weapons at, uh during the founding period and for a long time after that at the federal level, and even at the state level at that time. So, people never had any reason to start talking about well what weapons are protected, what weapons aren't protected. There's no historical record on which to do a kind of, some kind of originalist analysis.
Um, and, the other thing that's signif-, the other reason why you're not gonna find much use in history here is that um the technology of weapons has changed so much since that time. Um, at that time, the weapons that most people would've had were the same weapons that they would've taken with them to war, so nobody had to think about whether weapons of war were appropriate for civilian uh possession. It just wasn't thought about, it wasn't talked about, there's no reason for it. That means, I think, that um instead of just making pronouncements of the kind that we find in the Heller opinion of the Court has to do something like uh, the cost-benefit analysis that uh, that Justice Breyer purports to do in his opinion, but without the um, the very heavy thumb on the scale in favor of regulation that the Justice Breyer adopts. I think one of the powerful points that Justice Breyer makes is that Justice Scalia's also done a cost-benefit analysis, he just hasn't done it explicitly. And I think you have to give Breyer credit for having done it explicitly.
I think if Scalia would have done it explicitly and properly, uh he would've come to the same conclusion that he did come to, that there's not sufficient justification for the uh ban in this case, but it would've been based on the kind of analysis that we see in the tiers of scrutiny cases, for example, and it would've been more transparent and satisfying.
Robert Leider: Thank you, Professor Lund. Professor Miller?
Prof. Miller: So, uh, um, this is a, uh, obviously a really difficult question. I think I disagree with Professor Lund in this sense, which is um, to the extent that Justice Scalia says that the right is simply a confirmation of an English-inspired right. There is quite a bit of record evidence of regulations of weapons that go all the way back to uh really the um 17th century. So, there are announcements, um, by both of the Tudor monarchs and the Stuarts about carrying uh certain weapons called "dags," uh certain handguns at the time, so there is a regulatory uh system in place, uh, if we include within the common law, all the pronouncement of the monarchs, uh, going all the way to um early um colonial regulations like New Jersey. For example, they'd um certain pronouncements about regulations on um certain types of pocket pistols and stilettos and daggers being carried. So, I think that um there is a regulatory environment.
Now, to the question that um, of whether you have to do cost-benefit analysis, I think it's fair to say that there is a cost-benefit analysis. Um, the question then is whether we can talk about the fact that there were regulations of certain types of arms being dangerous and unusual as itself being evidence that the original understanding of the Amendment of what an arm could be basically encoded some kind of cost-benefit analysis. It's clear that not all arms uh that meet a linguistic definition of what an arm is are protected or ever have been. Um, and so, um, I think it's fair to say that, um, like with an analog with the Seventh Amendment, just like you can imagine in the Seventh Amendment context uh, this is the right to trial by jury, lots of kinds of actions that didn't exist in the 18th century now get a right to jury. Lots of things that didn't exist in the 18th century now can be counted as arms, but by the same token, lots of uh regulations of the jury through a procedural process that didn't exist in the 18th century are also constitutional. And I think that a parallel can be made in the Second Amendment context, as well.
Robert Leider: Thank you, Professor Miller.
Professor Lund: Let me just respond briefly to the long history of gun regulation in England and the much, much spottier kinds of regulation in colonial America and early America. Um, all, all of that is true, there were simple [inaudible 00:38:44] regulations in England and some regulations in the Colonies and in the States, but that's pretty irrelevant to the question of the meaning of the Second Amendment because the Second Amendment applied only to the state of, to the federal government, leaving the states completely free to adopt whatever gun regulations they wanted, which is, um, which is part of the reason there was no real discussion of the scope of the Second Amendment. There was no need for it. The kinds of laws that are popular today ever came to be desired by the people of a particular state, they could adopt it, the Second Amendment wouldn't interfere with that at all.
One of the peculiar things about the debate over the Bill of Rights is that nobody, as far as I know, ever asked whether the Bill of Rights would apply in the District of Columbia, the federal district, or the territories. And you would think that might be an important question, since if you're just assuming that the states can take care of all these kind of police power regulations, uh, well then what about the territories and what about the federal district? As far as I know, that question was just never addressed, so, again, we can't go back to historical record to find out what people were thinking when they adopted the Second Amendment.
Prof. Miller: So, if I can just respond very quickly, I think, um, I think to the extent that we're supposed to, since the originalist exercise is to try to recover what um people understood words to mean in a legal context that came from England, then I think it would actually be relevant what the English regulatory environment was if, basically, the framers were protecting the ancient rights of English persons, English subjects as part of what they were doing. If that's in fact what they were doing, then this regulatory environment would matter and would matter for the Second Amendment irrespective of whether, in fact, Congress had decided to exercise whatever regulatory authority that it had.
Robert Leider: Thank you-
Professor Lund: The point, the point is Congress didn't, was never given any regulatory authority and the Second Amendment certainly didn't confer any on it.
Prof. Miller: Well, the, what I ... I think my point is that if, if the idea of what the right to keep and bear arms means means everything including all the regulatory environment of England, then the fact that they don't actually exercise any of that regulatory authority that is encoded in what the right is, that it's, what it covers and what it protects, um, is not evidence of the fact that they didn't think that they had it, they just didn't use it.
Robert Leider: Alright.
Professor Lund: The, the-
Robert Leider: Go, go ahead.
Professor Lund: In England, Parliament had plenary authority just like the states did here, and the Second Amendment certainly was not meant to be as limited as the right to arms provision in the English Bill of Rights which applied only to the crown. So, it was very clear to the drafters of the Second Amendment and everybody else that, um, that our Bill of Rights was going farther than uh the English Bill of Rights or the analogs in the English Bill of Rights because it applies to leg, the legislature as well as the crown.
Robert Leider: Thank you. Alright, we have completed the uh question portion that I had prepared and I would like to now open it up for public question.
Micah Wallen: Thank you, Robert, and thank you Professors for a great start to the call and a great debate. Let's go to audience questions.
In a moment you'll hear a prompt indicating that the floor mode has been turned on. After that, to request the floor, enter the star key and then the pound key. When we get to your request, you will hear a prompt and then you may ask your question. We will answer questions in the order in which they are received. Again, to ask a question, please enter the star key and then pound key on your telephone keypad.
Let's go to our first question.
Chris Garvey: Hi, this is Chris Garvey, I'm a member of the Ancient and Honorable Huntington Militia and we've been firing muskets and cannons on the village green since 1653, and we are a well-regulated militia, which is a citizen's militia, which is contrasted to the king's militia, which might be called a state militia or the National Guard. But the well-regulated militia was a citizen's militia, and the great failure of the citizen's militia was in 1812 when uh the DC militia was uh trying to fight the British invasion and uh the guy driving the ammunition truck in response to some rocket attacks just drove off with the ammunition, leaving the, the militia disarmed. But that's a militia of politicians and government employees, who are less reliable than ordinary citizens.
Uh, good kings in, under the English, uh, rights tended to, uh, want the people's militia, um, rather, uh, because they, they felt that the people were their greatest protection, whereas tyrannical kings tended to suppress the people's militia because they didn't want the opposition of the people. Um, in the United States the first gun laws were designed to disarm blacks after slaves were freed, and then Tim Sullivan was a criminal in New York state and he set up the Sullivan Law because his, his muggers, who were his constituents, tended to be killed by citizens who were depend, defending themselves. Uh, Tim Sullivan, the way he, um -
Micah Wallen: So what's the um. Can I cut in here?
Chris Garvey: Would win his [crosstalk 00:44:42] nominations was to pick up his opponents and throw them out the window. So I think you're getting the, the entire concept of the well-regulated citizen's militia confused with the king's militia, and they are two distinct things.
Robert Leider: Professor Miller?
Prof. Miller: Well, I, I, I don't, I don't, uh, I don't disagree with that assessment. I mean, I think it chimes in with what Justice Scalia says in the Heller opinion. He's, he's identified the unorganized and the organized militia, there's, they are two different things. I, uh, I, I think the question is um what is the relationship between the unorganized and the organized rela-, uh, militia with respect to um, uh state power, so ... Um, y'know, if, I think, uh, if thought experiment goes something like this: So, when um, when uh George Wallace was um, uh, was going to stop integration uh, of the University of Alabama uh, he uh had a plan, which I don't think he executed on, which was to call the unorganized militia in, uh, to stop, um, integration. I guess the question is if uh the President of the United States had federalized that unorganized militia to actually pursue integration, would that have been a lawful command or not? And, and I'll leave it to the caller uh, to um to figure out for himself if he thought that would be a lawful order or not. Uh, and I don't know 'cause it never came to fruition, but I think it's an interesting thought experiment.
Robert Leider: Professor Lund?
Professor Lund: Uh, I don't think I have anything useful to add. I'll, I'll pass.
Robert Leider: Okay. Let's go to our next question.
Charles Nichols: Hi, my name is Charles Nichols. I'm challenging California's ban on openly carrying loaded and unloaded firearms in public. Two months ago, we had oral arguments in my case on appeal. The state attorney's position representing Governor Brown and Attorney General Becerra is that in 1791 when the Second Amendment was adopted, nobody carried firearms or presumably arms in general outside of their home because it was illegal to bear arms in public because of the Statute of Northampton. To, according to the state's attorney, the mere carriage of a firearm was carrying a firearm in terror of the people. What comment would you have on that?
Professor Lund: Uh, this, uh this is Nelson Lund. Uh, I, I'm not familiar with the latest developments in that case. Uh, this idea bringing up the Statute of Northampton is uh, is something that's frequently done. Um, whatever it meant in England, and it was uh, it was uh not applied exactly as one might expect from what one hears about what it said. In the United States, it was, there's a long line of c-, of state cases before uh before the adoption of the Second Amendment that makes it clear that as, as it was, as that case was understood in the United States, it was only a ban on carrying dangerous and unusual weapons in a way that would terrify the public and tend to provoke in a fray.
Charles Nichols: Yes.
Professor Lund: So, um, if there, if they're arguing that you didn't have a right to carry a, a, a gun in public in 1791 in the United States, that's just historically wrong.
Charles Nichols: Well, the state's position is I don't have the right to carry outside the door of my home. Not even on my own private property.
Professor Lund: Yeah, that's, that's just, that, that's just historically wrong. Yes.
Robert Leider: Professor Miller? Anything to add?
Prof. Miller: Um, I mean I, I don't know if the, the law on the Statute of Northampton is quite as clear as Professor Lund has said. Um, I certainly know that um some states adopted the Statute of Northampton sort of um, y'know, uh extant. They didn't change it, I do know that eventually, especially in southern states, that it was read um to have a kind of intent requirement, um, there is some controversy as to whether that intent requirement um, can be read back into um how, for example, an English person in 1791 would've understood the Statute of Northampton. Um, I certainly think that, uh, the tradition of regulating arms in public, not the prohibition, but the regulating of arms in public is quite a bit, um, more robust than, um, what we might think of as far-left regulation of arms in one's home. But, Uh, I think that's, uh, I think that's how I respond to, to the question about that Statute of Northampton.
Robert Leider: Can I ask a follow-up question on this? So, for federal courts, these questions are new, but a lot of these issues, especially public carry was, were heavily litigated in state courts during the 19th century. What precedential value, if any, should the state court decisions have for how we interpret the Second Amendment?
Prof. Miller: Uh, is this to me, or to the-?
Robert Leider: Uh, sure, go ahead, Professor Miller.
Prof. Miller: Well, I, I, y'know, so I think uh, this is a bigger methodological issue um which is um, if originalism is trying to figure not only what words mean but what the law was at a certain point in time, and, and that's what we sort of understand as the, how, how we understand rights, then I think there's a particular, uh, there might be a danger if you only look at the cases that actually get litigated, um, because you're gonna have what statisticians call a "selection effect issue." Alright, so you, it seems like you would also want to know what were the status of laws that, um, that were never challenged, um, and that would be the universe of information that you would need, just as a descriptive matter, to figure out what the law was in 1791 or 1868, or whatever point in time that you're concerned about.
So, um, I, I certainly think it's relevant. There are relevant data points, um, but I think that uh we should be mindful of the distorting effects that, that can be caused by only paying attention to those kinds of cases that actually got litigated.
Robert Leider: Professor Lund?
Professor Lund: I, I, I don't think they're of much relevance at all in interpreting the Second Amendment. Um, the, what happened in the states was as, as time went on, the states developed an interest in regulating firearms more heavily than they had in the past, um, and those developments could not have been foreseen, or were not foreseen, uh by anyone who spoke, at least, about the Second Amendment. So, they don't have much, much relevance directly to that. Um, they might become relevant uh when you turn to the question of the incorporation of the right to keep and bear arms through the 14th Amendment, and that gets, that gets very complicated, um, um, and I don't know that we're gonna have time to get into it here. But I, what I don't think is uh that we can simply take um, any regulations that, the state courts have been very, very deferential to their state legislatures, uh, on the whole in considering right to arms challenges, and I don't think we can simply import that into the federal Constitution, there's no good reason to do that.
Robert Leider: Thank you. Let's go back to our caller.
Micah Wallen: That caller is now off the line, but we do have another question lined up. Uh, is it alright if we go to the next question?
Robert Leider: Yes, please.
Speaker 8: Um, earlier you were talking about the cost-benefits of uh regulation, uh, and I, I'd just like to point out in the 20th century there were 18 million private murders com, committed worldwide and at the same time, governments killed about 180 million of their own people. So that, in terms of trusting someone with a right to bear arms, uh, government, any, the average government is 500 million more times likely to kill you, your own government, than uh the average individual you meet. So, that, that's one uh cost-benefit that should be considered.
The other is that the experience of right to carry in the states uh has been that whenever a state has introduced right to carry, violent crime has been reduced. One college town reduced rape by some huge amount simply by publicizing a program to arm women. Uh, so, when you talk about the costs and benefits of regulation, uh, it seems to argue for liberalized right to carry.
Robert Leider: Professor Lund, do you wanna start off with the response?
Professor Lund: Uh, okay, without getting into the very, very complicated debate about the uh net effects of gun, of gun control laws, uh in this country in recent times, which is complicated, um, uh, I, I, I think the thing to focus on with respect to the Second Amendment and the incorporated Second Amendment through the 14th Amendment is that the Constitution um implicitly makes a cost-benefit analysis when it establishes the right. And that means that in interpreting the scope of the right, the courts ought to give it the broadest scope possible, consistent uh with sound reasoning. The courts do that with respect to every other provision of the, of the Bill of Rights. The First Amendment, the Fourth Amendment, all, all, all of those rights have costs. Plenty of people get killed because of the Fourth Amendment right preventing the police, Fifth Amendment right preventing police from putting criminals behind bars. Lots of people get killed, uh, or end up dead because of people's free speech rights. Um, of course, Scalia says, and anyone who has any sense would say, there has to be some limit on these rights. They're not absolute. They should be interpreted, I think, from the opposite way from the way Hel, from the way Breyer does it in in Heller, which is instead of being deferential uh to the government, you should be deferential to the uh spirit of uh the Constitutional amendment itself.
Robert Leider: Thank you, Professor Lund. Professor Miller? Feel free to add.
Prof. Miller: Sure, so um, I agree with the, the premise that look the, ob, obviously as far as the cost-benefit analysis of a uh, a world uh, in which, uh private ownership of guns is uh, is uh protected and not um, y'know, for the Constitution clearly errs on the side of protecting the individual rights. It's what Heller's about, but I, I don't think that the question about what that right is, and it's um meets and bounds, um, is um, is exhausted by just what the words say as Heller itself indicates. It's not an absolute right, not every arm counts as a Second Amendment arm, um, not every person is entitled to a Second Amendment right, rights if that means to keep and bear arms. For example, the court says that felons and uh other, um, um, persons, persons with mental illness, can be kept from possessing firearms, so there's a lot of details about the cost-benefits that are going in, and then it's a question about how much are you gonna try to determine through case-by-case adjudication as opposed to deference to uh, uh, a body that can hold hearings and try to figure out whether more guns equal less crime, or all the very contest empirical data.
Micah Wallen: Thank you. We are approaching the-
Robert Leider: [crosstalk 00:58:15]
Micah Wallen: The one ... Oh, sorry. Did you want to add to that, Robert?
Robert Leider: I did not. I was gonna say we were, I was gonna say we were approaching the end and that I didn't know if we wanted to do one more question, or ...
Micah Wallen: Uh, I, I will leave it up to you and the speakers. We do have another question lined up. So, we could go to that or uh, if um, or we could adjourn.
Robert Leider: Uh, let's do one final question.
Professor Lund: I'm happy to hear one more question.
Prof. Miller: Me, too.
Micah Wallen: Alright. Let's go to our last question.
Charles Nichols: Well, this is Charles Nichols. Uh, the moderator had another question for me, but if I can substitute my question, I'm more interested in the effective incorporation on the Second Amendment. Doesn't that change fundamentally what the, uh, Second Amendment was understood from um 1791? Isn't it the understanding of the Second Amendment in 1868 when the 14th Amendment was adopted that it's controlling? At least to get state laws?
Prof. Miller: Uh, so, uh, I, I, in terms of the question of the speaker, I think, I think is an intellectually honest way of approaching the Second Amendment. I think he's absolutely right. I think it's important to actually look at the Second Amendment through the lens of incorporation and the 14th Amendment and Reconstruction. I think that's, um, absolutely true. If, if, if we look at a [crosstalk 00:59:44]
Charles Nichols: Well, Reconstruction came after the 14th Amendment was enacted. So Reconstruction-era laws wouldn't have, they couldn't dictate what the uh, what the framers of the 14th Amendment thought because they occurred years after.
Prof. Miller: Yeah, but the Civil Rights Act of 1866 is, is the first civil rights act and the Freedman's Bureau Bill talks about uh the right to keep arms and that exists before 1868, which is the 14th Amendment. So I, I think it's influential. I think the, the point, the bigger point is that I think you're, you're right, the problem, uh, is that that's not how the court has approached many, many constitutional matters with respect to incorporation. They don't see uh that the 14th Amendment does anything other than simply apply it to the states and apply it in exactly the same way that it applies to the federal government in most circumstances, um, and so you get this sort of hybrid where you have, uh, you're trying to figure out uh how a, how an 18th century right, uh, uh, applies to states uh even though a lot of, a lot happens between uh the 1700s, the late 1700s and, and, and the 14th Amendment. But maybe um Professor Lund has a different position, I don't know.
Professor Lund: Um (Laughs) I don't know that I don't know, but it's different. What I do know is that um it's not even clear, it's not perfectly clear that anything in the Bill of Rights was incorporated by the 14th Amendment as a matter of original meaning, uh, and if it was incorporated, it would almost certainly have to have been through the privileges or immunities clause, uh, which is not how the court has ever done it. They've done it through substantive process.
Charles Nichols: [crosstalk 01:01:42] due process, yeah.
Professor Lund: So, when you start talking about the original meaning of the 14th Amendment, you know, you're kind of cast into a, into a morass of, of uncertainty that's way, way beyond the uncertainty we have about the Second Amendment. And that comes back again, I think, to the, to the, to the una, ultimately unavoidable uh truth that the courts are going to have to, have to develop a juris prudence in the way that they've done it with other elements of the, of the Bill of Rights, especially the First Amendment.
Charles Nichols: Well, so far they've followed Justice Stevens' footnote 13 in uh the McDonagh decision. You might wanna give that one a read. According to Justice Stevens, they would take the least common denominator and uh be highly deferential, which is what they have been. Well, thus far. Thus far.
Robert Leider: Yeah, and I think we could go on for a while talking about how the Second Amendment's been interpreted within the court of appeals, uh, there has certainly be a diverse tiers of scrutiny that have been applied by the various courts and often very deferentially. But, I think, uh, we are out of time and we may have to save that conversation for another day.
I wanna extend a special thanks to Professor Lund and to Professor Miller for taking the time to be with us today and to debate these issues.
Professor Lund: I wanna express my thanks both to the Federalist Society and to Professor Miller, who I've never had a chance to talk about these matters with, so that was a great pleasure.
Prof. Miller: Uh, it's reciprocal. Thank you very much to uh the Federalist Society and it was, it was great to uh, to talk through these things. I've read your work, uh, Professor Lund, but haven't had a chance to chat with you about it, so I'm glad that we'd had this opportunity.
Micah Wallen: And on behalf of the Federalist Society, I want to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.
Recording: Thank you for listening. We hope you enjoyed this Practice Group Podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at fedsoc.org/multimedia.