Does the Second Amendment “right of the people” to “bear arms” protect an individual right to carry handguns outside of the home for lawful purposes, or may government officials decide who has a “good reason” to do so? After Heller held that the Second Amendment’s right to keep and bear arms guarantees a right to keep handguns in the home and McDonald incorporated that fundamental constitutional right against the states, the circuit courts have split over whether discretionary “may issue” carry licensing regimes are permissible. How might the Supreme Court resolve the current New York City case regarding transport of handguns outside of the home, and what are the potential implications for the hotly-debated question whether the right to carry applies generally to the law-abiding public? And in the wake of the Coronavirus shutdowns, should gun shops be considered “necessary businesses,” so that citizens who so choose may acquire a gun to protect their families?
Join us as we discuss these exciting issues with our distinguished guests:
Stephen Halbrook, author of The Founders’ Second Amendment and Senior Fellow, Independent Institute
Moderator: Mark Smith, Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College in New York City
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Civil Rights Practice Group, was recorded on April 2, 2020, 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's topic is titled, "The Right to Bear Arms." 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 expert on today's call.
Today, we are fortunate to have with us Professor Mark Smith, who is an Attorney and the Presidential Scholar and Senior Fellow in Law and Public Policy at The King's College in New York City. Professor Smith is a Graduate of New York University School of Law and is a New York Times Best-Selling Author. His two most recent books are First They Came for the Gun Owners and #Duped: How the Anti-gun Lobby Exploits the Parkland School Shooting.
You can also read his most recent piece of scholarship in the current issue of the Harvard Journal of Law and Public Policy where Professor Smith discusses the constitutionality of laws that seek to ban ordinary semi-automatic rifles labeled as some as assault weapons.
So without further ado, I'll turn this program over to Professor Smith who will be introducing his fellow speaker today. Mark, the floor is yours.
Prof. Mark Smith: Thank you, Micah. I'm pleased to be here today, everyone, and I hope everyone listening to this call is safe and sound. For those of you who don't already know Stephen Halbrook, who is one of the nation's foremost Second Amendment historians and constitutional attorneys, I'll give you a brief bio of him.
Stephen Halbrook was heavily involved in both of the major Second Amendment cases involving the District of Colombia v. Heller, decided by the Supreme Court in 2008, and in the McDonald v. City of Chicago case, decided by the Supreme Court in 2010. Stephen Halbrook has led the field in Second Amendment scholarship for almost four decades, ever since he published a groundbreaking book called That Every Man Be Armed, which was published in 1984.
In fact, it was Stephen Halbrook's 1998 book, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, which actually laid the foundation for the Supreme Court's ultimate holding in the McDonald case that the Second Amendment was incorporated against the states through the Fourteenth Amendment.
Mr. Halbrook is the author of The Founders' Second Amendment, and he also argued several Supreme Court cases including the Prince v. U.S. case, which addressed a novel view of the Tenth Amendment. Stephen has a Juris Doctorate degree from Georgetown Law and a PhD in philosophy from Florida State University. And he is currently a senior fellow at the Independent Institute based in California.
And one of the reasons today why we are holding this telephone conference or this teleforum is because Mr. Halbrook has recently published a major two-part series in The Federalist Society Review that provides a scholarly and deeply researched analysis of the text and history of the Second Amendment as it pertains to a very timely topic, that is the right of ordinary American citizens to carry firearms outside of the home.
As Stephen will discuss this afternoon, you will see in all likelihood that the fate over the right to carry firearms outside the home is not, simply put, a close call. This is actually a very easy case, and it should be. The text is basically unequivocal. The history is crystal clear. And the very purpose of the Second Amendment, self-defense, makes clear that there is a right to carry since there is just as much a need, if not more so, to defend oneself in public as there is in one's home.
But I think Mr. Halbrook's comments and scholarship could not be more timely thanks to the currently pending Supreme Court case of New York Rifle and Pistol Association v. New York City, as well as the state of America today with the coronavirus. To provide just a little bit more of context for today's discussion, it bears mentioning something, an important fact I think, that many Americans do not realize. That is as of this moment in time, there are 44 -- that's 44 states out of the 50 where either no permit is required, or permits are granted to ordinary Americans on what is known as a shall-issue basis to carry firearms outside of the home already.
Shall-issue means, by the way, that a state must issue a firearm's permit to an applicant unless he has a criminal record or mental illness. That means there are only six states that could be considered outliers on the question of carrying outside the home. But as Stephen will discuss, it is these outlier six states where carry permits are either very difficult to get or nearly impossible to get that usually sets the legal agenda for gun right cases in the United States.
This is because it is in these states, which are often dominated by anti-gun politicians and cultures, where the Second Amendment cases are being litigated right now. It is also in the midst of the current corona crisis that we now see, where Stephen will make his comments today, where Americans are lining up for hours in the hope of purchasing a firearm, only to find out that in many places, like New York City, this process will take many, many months to accomplish. And you will likely never get a permit to carry outside the home in your lifetime, even if you get a gun permit to have a gun in the home.
And lastly but not least, most of you have read the newspapers and the internet about how prisons are being emptied and police forces are being decimated in response to the coronavirus crisis. And it is this dramatic response and in response to this dramatic response, a large and growing percentage of the American people are voting with their pocketbooks and feet in favor of gun rights and trying to buy firearms. They are lining up around gun stores all across America.
And as such, I submit that there has never been a more important time when the right to carry has to be considered and discussed by experts and scholars such as Stephen Halbrook. So with that, I now give you Stephen Halbrook.
Stephen Halbrook: Well, thank you very much. Again, it's wonderful to be here on the program. You would think that the Second Amendment would be a simple matter. The words are clear. "The right of the people to keep and bear arms shall not be infringed." You see similar language in other parts of the Bill of Rights, in particular, the phrase, "the right of the people." "The right of the people peaceably to assemble," in the First Amendment, and "the right of people to be secure in their persons, papers, houses, and effects," in the Fourth Amendment. These are the same people as the Second Amendment refers to, the right of the people.
We also have other terminology in the Second Amendment that one would think would be very clear: the right to keep arms, the right to bear arms. Those are two separate concepts. If the only right that existed would be the right to keep in the home, there would be no reason to have the right to bear.
Notice also, other parts of the Bill of Rights, the Third Amendment, refers to the right not to have soldiers quartered in your house except in certain war time circumstances. There's a specific reference to the house. The Third Amendment only applies to houses. There's nothing in the Second Amendment that would indicate it only applies to keeping or bearing arms in the house. And in fact, it would be very frivolous to say or to make reference to bearing arms in one's kitchen or living room.
We also have discussion of the language in District of Colombia v. Heller. Justice Scalia talked about the right to keep arms separately from the right to bear arms, the right to bear arms is not limited to a militia force, for example. And yes, there are many instances in the historical literature when references made to, for example, bearing arms against the king or bearing arms in some military force, but there's certainly no exclusive militia reference when we talk about the right of the people to bear arms.
Also, if you look at the Fifth Amendment, there's a reference to the militia. An indictment is not required to make a charge against a person when in the militia in actual service in war or public danger. The Second Amendment makes no reference to limiting the right to keep and bear arms in the militia in actual service, language that one finds by contrast in the Fifth Amendment.
So that's a clear textual analysis. It's not always been so clear for the reason that particularly since about the 1960s, there's been a movement to deny the Second Amendment wording means what it says. The collective right's view held that oh, well, the people don't mean the people, arms don't include handguns, keep and bear only refers to the National Guard. So we have that type of analysis that basically went by the wayside. It had little credibility, textually or historically.
And we get up to the oral argument in Heller, and we have the government lawyer saying that well, the militia -- the Second Amendment is related only to the militia. And Justice Kennedy spoke up and said or asked the question well, the original settlers, didn't they need firearms for defense against criminals, hostile Indians, and grizzly bears? And that suggested that in Justice Kennedy's view, there was a right to bear arms outside the home. And that, of course, is what the Heller decision came down with in a 5-4 decision.
Justice Stevens dissented on the basis that well, it's an individual right only to bear arms in the militia. But there's no concept of a military force encompassing people with rights of this type. You don't have a right to bear arms in the militia. You don't even have a right to be in the militia. You're basically conscripted into that kind of military force. That's been the historical context.
So let's move onto history. We've talked about the text. Let's talk about the history somewhat. One historical incident that keeps coming up -- and it's incredible that in the major briefs being filed in today's courts on whether there's a right under the Second Amendment to keep and bear arms, to bear arms outside the home, we keep seeing reference to the Statute of Northampton of 1328, a medieval statute that had to do with going armed before the king's justices to the terror of the subjects.
The language was quite obsolete by today's standards. But it came to be interpreted under English law, particularly in a case called Rex v. Sir John Knight in 1686 that the elements of the crime were going armed to the terror of the king's subjects. In other words, you had not only to carry arms -- if you did so peacefully, it was not a crime. But if you did so in a manner that would terrorize other people, it was a crime.
And in that case, Sir John Knight was acquitted. But to keep having the argument being made that somehow the Statute of Northampton from 1328 is not only relevant to but supersedes the Second Amendment, only lawyers could make arguments like this, I think, with a straight face. That somehow, we have an explicit Bill of Rights freedom that is superseded by some ancient monarchal statute from England. But the argument keeps being made.
Just two years after the Knight case, we had the Glorious Revolution of 1688 in England, and the Declaration of Rights of 1689, which protected the rights of Protestants to have arms for the defense -- for their defense, suitable to the condition and as allowed by law. So there you have a clear, individual right being recognized in the English Declaration of Rights. And it was as allowed by law, probably meaning as allowed by the common law. So there was room for regulation there. This was an act passed by Parliament. Parliament could repeal it.
Our Bill of Rights is ratified by the states, and it's not something that Congress can repeal. That's a basic difference between the British parliamentary system and our system, which has our written Constitution. Sir William Blackstone talked about the Declaration of Rights and this right to have arms and stated that the rights to personal security and personal liberty required that right as an [inaudible 12:55] right—the right to have arms, the right to petition, the rights of that type—and that it was a natural right of resistance and self-preservation against oppression.
That takes us up to our Founding, when we have the British attempting to disarm the colonists, beginning in 1768 going up to 1774-75. The British forces led by General Gage ratcheting up the disarmament policies, preventing the export of arms to the colonies, preventing their import therein. Beginning to have seizures of firearms from the colonists until finally, we get to, of course, Lexington and Concord when the redcoats are coming to take the arms and we had the resistance. The colonists of course defeated the British soldiers, and they retreated back to Boston.
Just a couple days after that—this is some of the history that's not very well-known—General Gage was also the governor of Massachusetts, and he ordered that the people of Boston had to turn in their firearms. So we're not talking about combatants here, we're talking about inhabitance of a city who had nothing to do with the Battle of Lexington and Concord. In those days, everybody wanted to get out of Boston, so Gage said that okay, if you turn in your firearms to your selectmen, those were their elected leaders, so they could be kept safely, I'll let you leave Boston.
And when the day came for that event, many of the firearms were turned into the selectmen. Their names were carefully recorded on a roll. And lo and behold, here come the British soldiers and confiscate the firearms. And then Gage went back on his promise to let the people leave the city.
So here you have an act of perfidy that the Continental Congress called out in the Declaration of Causes of Taking Up Arms of 1775. So after that, of course, you have a systematic attempt to disarm the Americans, and the reaction to that was, of course, armed resistance, beginning with private armaments. And in fact, before the hostilities began, you had the formation of the Fairfax County Independent Militia Company by George Washington and George Mason, in opposition to the state, the so-called legal militia of the royal governor.
So, of course, we won our revolution. We became a nation, and then the question became of how about adopting a constitution. You all knew that debates between the federalists and the anti-federalists. The anti-federalists saying we need a bill of rights. The federalists saying well, if you draft a bill of rights, then no matter how you word the language, it'll be perverted and used to deny right. And of course, that's happened with the Second Amendment as well as other amendments.
But preceding that, of course, even during the Revolution, you have the -- once independent states were declared, they began adopting their own bill of rights. Pennsylvania was the first one to refer to the right to bear arms as -- their declaration said that the people have a right to bear arms for themselves and for the defense of themselves and the state.
Vermont followed with the same language. North Carolina, Massachusetts had other language. But basically, the concept was there, and so when James Madison proposed the Bill of Rights in 1789 to the first federal Congress, the Second Amendment was there. The language was redrafted somewhat, and we ended up with the final language that was ratified by the states in 1791.
Now at that time, no state had any provision, any law disarming a citizen or, I should say, preventing, forbidding a citizen to bear arms. You could carry openly or concealed. You could bear arms openly, and there was no law restricting that. There were, either under state statutes or under the common law, restrictions on going armed to the terror of one's fellow citizens. And that's a carry-over from the Statute of Northampton. And under those provisions, a person peacefully going armed was okay. A person who went armed and did so in a way to terrorize others, such as making threats, firing guns at people, brandishing, things like that, that was a crime.
One model, for example, was adopted by Massachusetts. And under that provision, from 1836, a person could go armed, but if you went armed in a manner that caused another person to fear injury or breach of the peace, that person could go complain to the magistrate. And if that was proven, then you could be required to obtain sureties to bide you for your good behavior. So there was no ban on going armed, but if you did it in a manner to terrorize your neighbors, then, of course, it was considered illegal, again, under a statute or the common law. There were some early state cases on that as well.
Also, you had the enactment in a minority of states of prohibitions on carrying certain arms concealed. By the time of the War of 1861, 9 out of 34 states had concealed weapon prohibitions. Seven of those states were southern states, and then you had Ohio and Indiana in addition to those two. But the majority of states did not even have that.
There was only one type of law that restricted the carrying of arms as well as many other rights, and of course, that would be the slave codes. Slaves could not have a gun or to carry a gun except to certain exemptions. And these slave codes also applied to persons of color. African American who were free in the southern states had to get permits to keep or to carry a firearm. And those views were basically may-issue discretionary permit systems. In other words, that the government officials would decide whether you would have an arm, whether you could possess a firearm in your home, whether you could have it for limited purposes like hunting or control of pests, protecting your farm, things like that. You could go to court and possibly persuade a judge to get a firearm under certain restrictions, but it would be up to the court.
So that's where things stood up 'til the period of the war between the states, and then you have, of course, after that concludes, the controversy over the slave codes being reenacted into the black codes. And you had the same kinds of restrictions as you had before where African Americans then were free, they were not enslaved anymore, but they had to get these permits from government officials to have a firearm. And if you didn't have the permit, you could be imprisoned.
So that became a major contention involving the debates that led to the passage in the revocation of the Fourteenth Amendment. If you look at the McDonald v. Chicago case, the opinion by Justice Alito mentions a Mississippi law from 1865 requiring an African American to get a permit to keep or carry a firearm. And once again, it was totally discretionary. It was not like as long as you're law abiding, you can get the permit. It was not a shall-issue system, it was discretionary. And the court depicted that type of law as the very kind of law that the Fourteenth Amendment was intended to do away with.
Another very important aspect of the progress of the Fourteenth Amendment to Congress, it was introduced by Senator Jacob Howard in 1866, and he said it was basically intended to incorporate certain substantive rights in the Bill of Rights, including the right to keep and bear arms. The side by side with the Fourteenth Amendment in it -- in fact, one reason the Fourteenth Amendment was needed was the Civil Rights Act of 1866 had been declared unconstitutional in a case involving its application to prevent or to obstruct a state law disallowing black persons from having firearms.
And side by side with Civil Rights Act, they had the Freedman's Bureau Act of 1866 which explicitly declared that the rights to liberty and -- personal liberty and personal security included the constitutional right to bear arms. So there was a clear intent to incorporate the right to keep and bear arms into the Fourteenth Amendment so that it applied to the states to prevent state infringement and also recognition throughout that the right to bear arms included the right of individuals to carry arms for self-protection.
So when we go through the period the 1860s or early 1870s, 1871 we have the enactment of the Civil Rights Act of 1871, which is today's 42 U.S.C. § 1983. It's the basic statute under which civil rights cases are brought in this country through today. You have an intent to have the right to bear arms recognized as something that if a state infringed on that right, one would have a remedy through the Section 1983.
So we go up at this point to you can no longer disarm people based on race or heritage, things like that, but you still had laws being enacted and enforced in a selective way to disarm minority groups. For example, the Jim Crow laws, you have restrictions on firearm acquisition and on carrying that could be selectively applied only against African Americans or political opponents.
And then you have the enactment of some of the laws in reaction to immigration. The Sullivan Law in New York in 1911 would be a good example of that. It was to teach the Italian American community a lesson, that you can’t carry arms. And even though the police couldn't protect you, we're going to put you in Sing Sing for a year if you carry an arm without a permit that we won't give you.
In any case, we're going to just turn the clock up really quickly now. We have three Supreme Court cases. We have the Heller decision basically talking about the right to bear arms as meaning to carry a handgun, for example. The Heller case invalidated D.C.'s handgun ban as a matter of law based on its face. There was to be no interest balancing. Banning guns is off the table. That's what the Second Amendment means, that the right cannot be infringed. And so you don't have to look at legislative history or at reports or criminal statistics. The right is there. The policy decision was made by the Founders, and it's not open to question.
And quickly after that, we had the McDonald decision holding that the Second Amendment is a fundamental right and therefore, it's protected through the Due Process Clause of the Fourteenth Amendment. Justice Thomas would've preferred the Privileges or Immunities Clause, but in any case, there were five justices who voted to incorporate the Fourteenth Amendment -- that is the Second Amendment to the Fourteenth Amendment.
And then the Court went through a period when it was not rendering any decisions. There were cert petitions being denied, but no more decisions on the Second Amendment. And lo and behold, after Justice Scalia passed away, the Court came out with an opinion in Caetano v. Massachusetts which had to do with reversing the Supreme Judicial Court of the Commonwealth of Massachusetts, which had held that a stun gun could not be protected under the Second Amendment. Supreme Court in an 8-0 per curiam opinion said that that's not correct.
And what's interesting about Caetano is that the stun gun was being carried by a woman who had been subject to abuse by an ex-boyfriend, to beating and what not. She carried this stun gun outside of her home. She was arrested with it in a parking lot of a grocery store. So if the Supreme Court didn't think that the right to bear arms included any arm outside the home, you would think that the Court could've just denied cert on that basis. I mean, why even pick it up?
But the Court implicitly assumed that the Second Amendment must apply outside the home because Ms. Caetano was found to have an entitlement, a proven entitlement at least, to have the stun gun off her home premises. And by the way, she was homeless. It would've been difficult for her to possess it at all had the rule been that that Second Amendment is home bound.
So now we have a circuit split. As Mark mentioned, you have certain states -- only six states actually, generating most of the litigation because they're the only ones that have may-issue as opposed to shall-issue. The First, Second, Third, and Fourth Circuits hold basically that well, the Supreme Court talked about text history and tradition, but we're going to talk about balancing and we're going to say that we're going to balance this right away. It's a -- yeah, there's a right to bear arms, but who knows what the Court meant when it said that -- when it discussed the actual meaning of bearing arms.
Legislatures can do away with rights of that kind because if it balances out in that manner -- it reminds of Fats Domino's song, play the limbo game, "How Low Can You Go." I mean, the standard of the review is so low in these intermediate scrutiny cases that basically, the presumption seems to be that you don't have a right and we're going to show you why.
So what you don't see -- what, 44 states that have shall-issue or have no requirement even to get a permit to carry, you don't see cases coming out of those circuits because there's no laws that are being challenged because they're fair. The right to bear arms is being recognized in those states. So it's easy to get a distorted view and think oh, well, there's more decisions upholding these may-issue regimes than the other way around. But the fact is there's a reason for that is that the right is being respected in these other states that the majority of circuits oversee.
That brings us to the New York City case, the New York State Rifle and Pistol Association v. City of New York. Probably, most of you know the story. You cannot take a gun out of your home. The Second Circuit upheld that because a police official, retired, said that oh, it'd endanger public safety to let anybody take a handgun to a second home or to a shooting match or to a shooting range outside the City of New York; an incredible abuse of application of judicial power after the ruling in Heller, after we see the text of the Second Amendment, even under basic summary judgment procedures. You don't just get an affidavit by some police official saying that well, this is a danger to public safety and therefore you can't do it. That's just totally not the way the system is run, even for activities that have nothing to do with a constitutional right.
So you all know, probably, the City is trying to weasel out of that case. They've changed the law, and they want to -- they argued that the case is moot and therefore that the Court shouldn't render the decision. I think they're supported in that effort by the anti-gun movement in this country because there's fear that the Supreme Court will say oh, you do have a right to take the gun out of your home, and that starts to get into the bear arms issue very directly. And there's a fear on the side of the anti-gun lobby that we don't want the Court to go there, so let's get this case mooted.
Finally, we come to our coronavirus closings of gun stores because of the coronavirus steps that are being taken by various states and localities. You had the State of New Jersey, for example, closing down the gun shops but saying that there are some essential businesses that can stay open, and that would include marijuana dispensaries, liquor stores, and yoga classes. There was some litigation about that, and before the end of the week, the governor had reversed course and said that gun shops can open.
There’s still some litigation going on about that, but that directly impacts not just, of course, the right to bear arms, but the right merely to keep arms, to merely possess arms. And we’ll see where that goes, but most jurisdictions have fallen in line with saying that gun shops, the gun industry, shooting ranges, were essential businesses, that they can stay open, albeit like with other stores, under certain rules where you try to minimize contact between different persons.
So I’m looking at my watch, and I’m thinking probably this would be a good time to see if Mark might have some other comments or questions, and also to open the lines up for questions.
Mark Smith: Great. Well, thank you very much, Stephen. That was very helpful. I just want to ask one question I think that might be helpful to the listeners. Can you just talk about the two types of carry permit systems in the United States? There are some states I know that don’t actually require any form of a permit for a law abiding American to carry guns outside the home, and then there are other states that have a permitting system. And then there’s two types of permitting systems, one referred to as “shall issue” and one referred to as “may issue.” So maybe you could just talk about the 44 states that allow the carry outside of the home, just so we can make sure that the audience understands the difference between constitutional carry, shall issue, may issue, and those terms.
Stephen Halbrook: What’s interesting, as I mentioned, at the Founding, there were no carry restrictions as long as it was done peaceably. There were a minority of states that enacted concealed weapon restrictions. After the Civil War, more states enacted concealed weapon restrictions, but most states remained free to openly carry, they were open carry states. And New Jersey, of all states, was an open carry state all the way until 1966. Virginia is still an open carry state. It’s been open carry since 1607 when it was first settled. Delaware is open carry. So that’s without a permit. You can openly carry without a permit.
And then you have the states that require a permit to carry a concealed weapon, and that would be the majority of states. And the majority are now shall issue, as long as you have good character, you have no criminal record that’s disabling or mental commitments, things like that. And if you have training, then you can get a permit.
There are some states now, maybe eight or so, that are called constitutional carry where you can carry concealed or openly without a permit. In fact, Vermont has always been that way. Vermont has never enacted a carry restriction, as long as it’s peaceable, since they’ve been founded. That’s the great state of Ethan and Ira Allen, the founders of Vermont. And they carried a lot, and they did a lot of hunting and shooting and fighting the Brits, and the state’s remained the same ever after.
And then, of course, there’s the may-issue regimes of the six states, the usual suspects that have owners gun restrictions, California, New Jersey, New York, Massachusetts, states like that. And in those states, it’s very difficult to get a permit. And usually, you have to be somebody special. You have to be influential politically. Did you give money to the sheriff’s campaign? Are you wealthy and therefore a very important person? But if you just have -- if your only reason for applying for the permit is that you live in a poor neighborhood and there’s a lot of crime there, no, you’re like everybody else and you don’t deserve a permit.
So that’s basically what this issue comes down to, the states that you have to show to a government official that you need to exercise a constitutional right, which seems like that would be on its face anathema to the very idea of a constitutional right.
Mark Smith: Stephen, quickly, just what is the difference between open carry and concealed carry, for the listeners?
Stephen Halbrook: Well, so open carry would be you’re carrying the firearm in plain sight so it’s visible. Concealed carry would mean that it would be hidden from public view, either within the clothing or in a briefcase or purse or some other obstruction of that type.
Mark Smith: Great. Well, Micah, I think now is a good time to take questions from the audience.
Micah Wallen: A few questions lighting up the lines right away, so without further ado, we’ll move to our first caller.
Luke Zahn (sp): Hi. Good afternoon, everyone. My name is Luke Zahn. I’m from Flint, Michigan. I think that kind of goes with saying that I’m in a city in which we don’t have an adequate police force, let alone one to handle the current situation that we’re dealing with. So a lot of residents here do exercise their right and have a firearm in their possession but have struggled to get some ammunition over here.
But I wanted to ask is that, particularly in regards to the New York case, in a post-Heller kind of world, one of New York’s restrictions placed an undue burden not only on the right to bear arms, but given that the right to bear arms is an explicitly written constitutional right as opposed to, let’s say, another, quote unquote, “right” such as abortion which is not explicitly written. And I was wondering if you can comment on future Supreme Court litigation or even appellate litigation that would be addressing the Second Amendment and whether they’re going to take that undue burden approach?
Stephen Halbrook: Well, sure. As far as I know, that standard was invented for the abortion cases. The other rights that are in the Bill of Rights, for example, what do they say, that certain rights will not be abridged, will not be infringed. The Fourth Amendment has a reasonableness standard as opposed to a blanket standard. But the rights like First and Second Amendment rights appear to be written in a way that are more unyielding to exceptions. There again, the criminal procedural rights look pretty solid in terms of you can’t just say, for example, well, no, a person does not have a right to counsel or a right against self-incrimination. But in the day and era when rights are kind of invented out of thin air, then you have different kinds of jurisprudential doctrines.
But what’s incredible about the contrast between the made up rights and the explicit rights is that the Second Amendment has been the one explicit right that’s been so disfavored it’s like the black sheep of the family that you keep in the closet and maybe bring the person out briefly on Thanksgiving, and then you put them back in the closet. I mean, it was ignored by the Supreme Court for a long time.
And on the other hand, things change with the Justices. We have the new guys on the block, for example. That’s why the Kavanaugh hearings were so exceptionally crazy. Justice Kavanaugh was looked at as a person who might question Roe v. Wade or some of the other decisions of that type.
So yeah, we’ve got those rights that are written and they’re clear, and then we have the other rights that sort of come out of the imagination of different justices. It really boils down to a question of the rule of law, though, doesn’t it? I mean, whether we have a written law or whether we have something that’s sort of made up as it goes. But you would think that you would have the most stringent standards for rights that are written, rights that are clear. And instead with the Second Amendment, we have intermediate scrutiny which basically comes down to no scrutiny.
Micah Wallen: All right, we’ll now move to our next caller.
Caller 2: Looking over the Peruta -- the en banc decision from the Ninth Circuit, it really brings out what you’re talking about, sort of a class based distinction that applicants who would be given a permit on good cause were CEOs or business owners who would carry large sums of cash. By contrast, those who would be denied permits were, quote, “those who had a concern for their personal safety due to job conditions placed on the applicant by their employer.” So it seems that, as you say, those who were the CEOs or wealthy would be entitled to a permit, but those who were placed in danger due to their employer’s decisions would not get one. And I’m wondering if any of these laws have been challenged, not on the basis of an absolute right to carry but rather the discriminatory nature of the good cause provisions.
Stephen Halbrook: And the answer is yes, they have. And in fact, before the Supreme Court’s decision in Heller, a number of circuits did not recognize Second Amendment rights, and therefore, you did have challenges to these arbitrary issuance regimes based on the Equal Protection Clause, for example, including cases arising in California because you had a long history in California of political favoritism and the denial of rights of ordinary people in favor of the privileged elite. And so I think that issue might have even been raised in Peruta in addition to the Second Amendment challenge.
But one more thing about Peruta that’s interesting is that Peruta did not say there’s no right to carry. When that case was brought originally, there was a limited right of open carry. You could carry an unloaded firearm. You could have ammunition nearby but could not be loaded. And then the concealed weapon permits were being denied, and that’s what went up to the Ninth Circuit. And in the meantime, California -- the legislature amended the prior law to ban any kind of open carrying. So then you had both concealed and open carry banned.
And so when the en banc majority in Peruta made the decision, they said, “Well, we’re not going to decide whether open carry can be banned. We’re just going to say there’s no entitlement to concealed carry, and therefore, the case is ended.” And what’s incredible -- you could say that was quite a cowardly decision because go ahead and say -- if there’s no open carry that you’re going to recognize, why don’t you just say it because the law had been amended by that point to do just that. So the interesting part about the Ninth Circuit at this point is the rule is that there’s no right to concealed carry, but we don’t know whether there’s a right to openly carry.
And there was the state that came from Hawaii that held there is a right to carry at least openly. In that state, you couldn’t get -- nobody could get a permit to carry either openly or concealed except for a security guard. And so the security guard could get an open carry permit when on duty. And as the panel decision noted in that case, the Second Amendment doesn’t just protect open carry by security guards.
Now, that case, of course, is going up en banc. There’s no decision at this point. So we’ll see what the Ninth Circuit does with that.
Micah Wallen: All right, we’ll now move to our next caller.
Sean McDonald: Hello. My name is Sean McDonald. I’m a law student at George Mason University and president of the Law Students for the Second Amendment there. In Virginia, we had the legislature going blue for the first time in, I think, 20 years. And then we had the gun rights rally in January, which seems like a million years ago.
But we’ve had a number of -- almost every county in Virginia declaring itself a sanctuary county from the Virginia legislature’s attempts to limit the Second Amendment and gun rights here. Could you speak at all about that situation and how Virginia governor can hope to enforce some of the things that he’s trying to enforce against these sanctuary counties and just the idea of a sanctuary county and the Second Amendment in general?
Stephen Halbrook: Well, sure. It’s been quite an interesting phenomenon. When you look at the map, almost the entire Commonwealth of Virginia is the sanctuary county or something like that. Not every county voted to be sanctuary. Some of them used language like, “We’re supportive of the Second Amendment, and we don’t want to have enforced laws that are unconstitutional.” But if you look at, it almost the entire state -- other than Arlington and Fairfax counties and maybe Richmond are not sanctuaries.
So this comes about after so-called progressive prosecutors had been taking the position they don’t have to enforce laws that they don’t like, including the marijuana laws, the laws about larceny, laws of that type. When he became Attorney General, Mark Herring said that, “I’m not going to defend Virginia’s law on the meaning of marriage.” And so you have that side picking and choosing which laws they think they can enforce. By the same token, when the shoe is on the other foot, Mark Herring issued an opinion that, “Oh, no. Everybody’s got to enforce these new gun laws out the kazoo. I mean, they have to be -- it’s like the biggest priority.”
But the answer is no, they don’t. The police department has discretion, the sheriff’s office has discretion in what they do. And if you’ve got unsolved murders, you’ve got a wife beating in progress, you’ve got a robbery over here or something, that’s where you put your priorities. You don’t go sneaking around gun ranges and see, “Oh, does somebody have a compensator on the end of their rifle?”
And by the same token, prosecutors have discretion. I used to do criminal defense work in Fairfax County, and they would nolle pros a case. You work your case out. You reach a plea agreement. You don’t have to prosecute every case as charged, and they don’t have to prosecute at all. And so the jurisdictions that have become sanctuaries, certainly those public officials have discretion in to what extent they use their law enforcement, their scarce law enforcement resources to enforce laws that are important to the citizens.
And this is not only in Virginia. It’s in other states. And I think you’ll see it grow as the anti-gun movement grows and you have so much money being put into state legislatures trying to turn them into more restrictive ones.
Micah Wallen: All right we’ll now move to our next caller.
George Roe: My name is George Roe, Professor Emeritus, University of Illinois at Chicago. Stephen, one, thank you very much for an excellent presentation. One of the issues that is front and center is this concept of reasonable restriction. Now, except for those who want to ban the Second Amendment in its entirety, the other side looks up and says, well, the Supreme Court has maintained you can have certain reasonable restrictions. I’d like to narrowly focus my question on the concept of red flag laws as a reasonable restriction on the right to keep and bear arms as it also involves due process. And I realize this is kind of a complicated issue, but I’d love to hear your thoughts. Thank you.
Stephen Halbrook: Yeah, thank you for that question. Traditionally, if a person is a danger to self, you do a mental commitment. You do mental observation. You take them in. They get right to counsel. You don’t just deprive them of rights. You go through a process. You get medical personnel. You have some kind of judicial officer. You have counsel. And so the way you handle people traditionally who might be a danger to themselves or to others is through that process. The problem with the red flag laws is the standard is the person a danger to self or others, the same as in the prior regime. But what happens? You don’t necessarily get any help. The only consequence that might happen to you is that they might seize firearms from you.
And that’s where the due process problem comes in is because there can be an ex parte order to confiscate firearms from a person without any hearing beforehand. And in fact, the warrant that might be issued is not to seize evidence of a crime. It’s to seize property for which there’s been a one-sided judicial hearing, or maybe not even much of a judicial hearing, just basically a report. It might even be telephonic. So there’s tremendous room for abuse of that. If you don’t like somebody, you denounce them. You get this red flag order pronounced against them, and then their guns are seized for a year. I don’t see that you have a right to appointed counsel if one of these actions is brought against you.
There are some different varieties between the different states with these laws, but I think they raise a host of problems, and it’s hard to see how they really get at the major problem that if a person is really a danger to someone else or to themselves, they need to be taken into custody and they need help, as opposed to just seizing a firearm and leaving it open for them to harm other people through other means if they’re really a danger. So it’s a complex subject, as you stated, but it’s something I think in the future we’re going to see more litigation about.
Mark Smith: This is Mark Smith here. I’m going to add one little thing. For those of you who have been reading for the last many months about the Inspector General’s comments on the abuses and errors associated with the FISA court application process, my thought is if the FBI and the federal government and the FISA court in D.C. cannot run smoothly without major concerns about abuses and errors, then one wonders how reliable a small family court in some borough in the middle of the country can be relied upon to exercise appropriate due process and protect the rights of the accused, especially without due process and a hearing.
I mean, most of these orders -- you have to look at the practical effect of red flag laws. You have a judge sitting there. Someone comes in and says, “I fear this person may be a danger to himself or to the community.” And the judge has no information, and he or she has to say to themselves, “Well, what am I going to do here? The safest course is to just order taken away of the guns because if I’m wrong, in a year from now, the guy will get his guns back. But if I don’t enter that order and say, ‘No, I’m not going to do that,’ and then, heaven forbid, the alleged mentally ill person goes off and does something terrible…” Well, that’s likely going to be the end of that judge’s career.
And I think there’s this inherent bias in the system that especially at the local level with local judges that the local judges will largely rubber stamp these kinds of requests. And again, if the FISA court with all of its resources can’t get it right, one wonders how local family courts are going to do it in these very small contexts that are very important to the individual losing his gun rights. But again, it’s just a rubber stamp for most of these local courts.
Micah Wallen: We’ll now move on to our next caller.
Caller 5: I have a question in regards to the handful of cases on hold in what I’ll call certiorari purgatory, among them Worman v. Healey now, the California handgun roster case. Is there anything we can read into the fact that the Court has put a handful of gun cases on hold in that perhaps they’re determined to make some kind of Second Amendment decision? Even if New York is mooted, maybe they’d call up one of the other cases. Or is that way to speculative to bother with?
Stephen Halbrook: Yeah, that’s a good question. And we can only speculate what the justices are thinking or doing. We don’t really know. But in my opinion, these cases are being held, cert’s not being denied because they’re waiting to see if there’s going to be a decision on the merits in the New York City case. If there’s a decision on the merits, it’s going to say that -- it’s most likely to say that the New York rule was unconstitutional and that you do have a right to take a gun out of your home.
I mean, the fact that that Second Circuit could have upheld this with a straight face just seems incredible. And I think everybody was reading the Court as having the -- rendering the opinion that you can take it out of your house. And note that in that case, the guns were not to be carried on the person. They were to be unloaded, locked away, and inaccessible. So the issue was whether you could transport it, whether you could take it out of the home and move it from one place to the other.
The reason there was such resistance against the Court making a decision, the reason that the city changed the law and that other jurisdictions’ AGs who were in line with being anti-Second Amendment urged the city to do that, was they did not want the Court to make a decision on the Second Amendment that would be favorable because also the Court would be likely to make other statements that would be favorable to and explaining why you can take the gun out of the home, expositing the nature of the right to bear arms in more detail, things like that, and also maybe clearing up the standard of review to some extent. So I’ll stop there because I know we have a couple more questions.
Micah Wallen: All right, we’ll move to our next caller.
Caller 6: I was wondering if you could speak more to about Donald Trump banning bump stocks through executive order, if that was constitutional. Just elaborate on that, please. Thank you.
Stephen Halbrook: Well, the National Firearms Act has a definition of machine gun, and as everyone knows, ATF for many years said it did not apply to the so-called bump stocks. And it’s difficult to see how you can change the meaning of a criminal statute through litigation -- I’m sorry, through rulemaking.
But I did note a decision just came out, I think, yesterday or the day before. The litigant’s name is Lane, L-A-N-E, which, I think a judge from the Northern District of Texas castigated the U.S. attorney’s argument that the federal government can do what would otherwise be a taking because of its attempting to enforce public safety, the traditional power that’s really up to states. The federal government doesn’t have it. And you might look for that decision. It’s the first time a court has ruled favorably to the persons who previously owned bump stocks.
And as I said, it’s a takings case. It’s not a case about -- I’m not aware that it’s a case about the definition, but it’s -- this litigation’s going to go on, and it’s unclear that the regulation would have any rightful use in a criminal prosecution. A jury would have to hear -- would have to be instructed on the meaning in the actual statute, the meaning of machine gun, and it would be improper for them to be told what ATF made up after the fact.
Micah Wallen: All right, we’ll now fit in our last caller of the day.
Jaime Herrera: Hi. My name’s Jaime Herrera. I’m an attorney in Pittsburg, Pennsylvania. And just similar to the last question, have you been seeing anything with states around the country trying to limit the right to keep and bear arms through the administrative or executive process, perhaps because they can’t get a bill through the legislature so they’re trying those channels? Just curious on your thoughts on that. Thank you.
Stephen Halbrook: Well, you may have -- I’m not sure of explicit instances, but you may have specific police departments or issuing authorities trying to do things administratively and changing policies. In fact, you’ve seen a lot of that in California over the years where you had -- it was considered to be a proper reason for a carry permit that you wanted it for protection. And then the enforcement agency could change the policy and say, “Well, from now on, we’re only going to consider a person has some kind of unique threat in the future. Threats in the past don’t matter, and it doesn’t matter whether other people have similar threats. You have to have a unique threat, and it’s got to be something in the future.”
So we’ve seen policy changes like that that enforcement officials can take, and so that certainly bypasses the legislature when you’ve got a long period of implementation of a statute in a certain way, presumably in accord with legislative wishes. And then you have arbitrary changes of that type. So certainly there’s ways to do that. There may be other aspects that you have in mind or that might be going on that I haven’t mentioned, but there’s more than one way to -- to do what, cook a squirrel? I don't know -- skin a cat. I’m sorry. Sorry, cat lovers. But yeah, there’s ways to get around the law, certainly.
Micah Wallen: All right. And I’ll give -- Stephen or Mark, do either of you have closing remarks before I wrap us up today?
Stephen Halbrook: Yeah, I think what’s interesting about the subject is most states recognize the right to bear arms. I think it’s fair to say that the laws are fair in most states, and it’s just a handful of outlier states that have these adverse laws. And it’s those states where the litigation’s coming from. And one would get, maybe, a misimpression that, oh, well, most courts seem to think that there’s no right to bear arms. But it’s only because the only courts rendering decisions are the handful of circuit courts in the handful of states that have these restrictions.
So there’s more -- there’s at least four circuits held against the right to bear arms. The D.C. Circuit and the Seventh Circuit and to some extent the Ninth have said there is such a right. The Ninth is going to change, most likely, going from panel to en banc decisions. But you know why there’s no Fifth Circuit cases on this? Because Texas hasn’t banned the bearing of arms. Or there’s no Eleventh Circuit case because Florida fully recognizes the right to the concealed carry permits.
So I think when you look at it in that perspective, the predominant American view is that you do have a right to bear arms. That’s what’s explicit in the Second Amendment, and that’s recognized by most states.
Mark Smith: And this is Mark here. I would say yes, whether you look at it from the text, the history, or the traditions of the United States, there’s a clear and powerful right to keep and bear arms both in the home and outside the home. And even if you want to apply a standard of let’s see how Americans behave today in American and contemporary society, I think the millions and millions and millions of firearms and people that own firearms and ran out and lined up around gun stores just recently for the Coronavirus crisis, I think that speaks volumes about that America remains a robust gun culture, contrary to what some of the media reports may say.
And I would also wonder how many more gun owners and guns there might be in the United States if we allowed the gun owners and the wannabe gun owners in these blue states like New York and California and New Jersey who want to get guns but realistically cannot get guns because of the laws, one wonders how many more guns and gun owners there would be if you allowed that pent up demand to exercise their rights and their desires freely without these onerous government restrictions that are so over the top that I’m sure there are millions of people that would like firearms choose not to go through the hassle of getting them because of where they happen to live.
Micah Wallen: All right. And on behalf of The Federalist Society, I would like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
Operator: 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 www.fedsoc.org/multimedia.