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tv   U.S. Gun Rights Regulations  CSPAN  August 11, 2021 9:06am-10:08am EDT

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coming up on american history tv, a discussion on gun regulations, historians and a law professor talk about the drafting of the u.s. constitution's second amendment and how it has been interpreted. the national history center hosted this event. >> good morning. welcome. please note that we have distributed cards. they are on your chairs. the purpose of those cards is to facilitate the q & a. jeff is standing outside. there you go. there's jeff who will collect those questions. i will collate the cards and
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facilitate the discussion with the speakers. we are looking forward to a valuable hour of presentation and discussion. this briefing is part of an ongoing series sponsored by the national history center that brings historical perspective to issues confronting congress and the nation. the center is non-partisan and as such the purpose of the briefing is not to advocate for any particular policies or public positions, but to provide historical content to inform policymakers and the public. as ever, we are grateful to the mellon foundation for funding this and the office of congressman connolly for booking the room. today's subject is the history of gun rights and regulations in america. the depth and complexity of the politics of these or any subjects should not make us shy from the historical record. history is whether we are aware of it or not the context for every discussion we take, whether individual daily ones, such as assumptions that the trains will run on time or not,
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based on our historical experience, or collective political ones, such as when an how to engage in conflict. elevating historical context to the explicit, asking what has been the circumstances which give rise to the current situation, we can better appreciate why and how we are where we are. as a historian of the 18th century, i'm acutely aware of the sharp juxtaposition of the relevance of my field for contemporary americans. early america is both foundational to our democracy and yet often confined to a study of the eastern british colonies and the politicians who carried those into our nation. the wider continental early america shows an equally foundational but more complex picture of our how great nation emerged. history offers rare -- rarely offers a straightforward answer to questions we pose from later and typically a very different
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vantage. to paraphrase a scholar, history is not waiting in a kitchen cabinet, waiting for us to open the right door and we can see the past in all its fullness. rather, our comprehension of the past relies on the preservation of the historical record, which is often shaped by what is understood to be worth recording and then preserving and then on our ability to analyze that record, which is often shaped by what is understood to be worthy of analysis. we can track the progress of legislation through the congressional record. also through records retained by the offices of members and committees. but we know or rather you know that legislation is also the product of a individual efforts, energy, expertise, collaboration. how were those captured? what is the history? we do not so much revise history as we understand it afresh using
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new information, new tools, new perspectives. as the great american historian edward heirs likes to say, i'm a fan of revisionist history just as i'm a fan of revisionist medicine. lawyers and historians view and use the past in distinct ways. with the former by vocation having an instrumental view of the past. we are fortunate today to have with us both a legal scholar and a historian of the law. saul cornell is a chair of american history. he earned his ph.d. at the university of pennsylvania. his first book was a study of the other founders, anti-federalist. he published extensively on the second amendment and history of gun regulation, including his 2006 book "a well regulated militia, the founding fathers and the origins of gun control."
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his articles have appeared in journals such as the william and mary quarterly and yale law journey. he authored the chapter on the right to bear arms in the oxford handbook of the u.s. constitution. darryl miller is a professor of law at duke university school of law. he was a marshal scholar and oxford. he is the aunlauthor of "the positive second amendment." he published in leading law reviews such as yale law journal and the university of chicago law review and has been cited by the supreme court of the united states, the united states court of appeals, the united states district courts and in congressional testimony and legal briefs. we will begin this morning with darryl as he noted his work provides some of the historical work.
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>> thank you so much for that introduction. thanks to the national history center for this invitation to speak to you. i should start with a disclaimer. i'm not a historian. i am a legal academic. i'm a lawyer who is really interested in the way history influences the way legal doctrine develops. professor saul will be better at actually speaking with authority and detail on the actual historical regulations. instead, i want to offer a framing for you about how the supreme court does and may use history to justify its conclusions. in the 2008 discussion district of columbia versus heller, the high court resolved one very important but narrow issue. that issue was whether the second amendment right to keep and bear arms applied to rights
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to have and keep an arm for personal purposes like self-defense in the home, or whether it was a right that was solely related to participation in an organized group like the militia. in a 5-4 decision, heller said that the right is an individual right to have and keep arms for personal purposes. the late justice scalia, who wrote the heller opinion, also said expressly, quote, like most rights, the right secured by the second amendment is not unlimited. a long history of firearm regulation, he said, shows, quote, the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. justice scalia was quick to observe that quote. we do not undertake an exhaustive historical analysis of the full scope. nothing in our opinion should be taken to cast doubt on longstanding prohibition on the possession of firearms by felons
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or the mentally or carrying in schools and government buildings or laws imposing commercial sale of arms. his opinion in footnote 26 says these examples he offered were that, examples. quote, our list does not purport to be exhaustive. what the limits on the second amendment are and where to find them has been the subject of litigation now for a decade in the lower courts. the courts have mostly converged on a two-part test. this two-part test first asked whether the regulation implicates the second amendment at all. does the second amendment cover the matter in question? if it doesn't, well, theoretically, that's the end of the case. frequently, this first part of the two-part test relies on some evaluation of the history of the regulation or its pedigree in its specific details or as often in its overall purpose. for example, heller says that
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concealed carry can be prohibited. in fact, justice scalia used as illustrating a historical prohibition, saying, for example, to request the question held prohibition was lawful under the second amendment or state analog. according to heller prohibitions on concealed carry do not raise a second amendment question at all because there's a long history of regulating concealed carry. similarly, heller suggests machine guns can be prohibited because machine guns fall within a historical prohibition on the possession or carrying of dangerous and unusual weapons. it's not that these regulations on concealed carry or on machine guns require some other justification to support them. these laws are just constitutional under the second amendment in the same way that prohibitions on extortion or
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security fraud are categorically constitutional under the first amendment. if the second amendment covers the regulation at issue, the second part of the test asks whether the regulation burdens the right to keep and bear arms. this is a protection question. judges apply some means in scrutiny examining the purpose and how tightly the regulation fits its stated purpose. if the regulation burdens too much second amendment activity, then its unconstitutional. if it'sminor, then it can stand. on possessionthis, it covers th amendment. the regulation's burdens are so minimal that it can survive the challenge. some judges among them now justice kavanaugh have indicated they believe the second part of the two-part test, the balancing
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of the right against the regulation, is impermissible and have advocated an approach that would rely on text, history and tradition. under this test, it would be whether there is some historical pedigree or failing that some historical analog to decide whether a regulation was constitutional. that could change the type of questions that we might ask in a second amendment case. as justice kavanaugh himself said in the opinion, he wrote as a d.c. circuit court judge, quote, just because gun regulations are assessed by reference to history and tradition does not mean governments lack flexibility or power to enact gun regulations. according to the now justice, he says, governments appear to have more flexibility with a historical test than with other kinds of tests. what does justice kavanaugh mean that history may provide local governments more flexibility? as professor cornell will note,
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there's a long history of regulation in america. in addition to regulations on the types of arms people could possess, there was regulation on how they could be carried, where they could be stored, how they could be stored as well as various licensing regimes. that said, justice kavanaugh is clear in his heller two opinion that the second amendment does not only permit those regulations that exist only in 1791 any more than the second amendment only protects those kinds of firearms that existed in 1791. as he stated in his dissent, when legislators see new regulations because of conditions that have not existed, there obviously will not be a history or tradition of banning such weapons or imposing such regulations. that does not mean the second amendment does not apply to these weapons or in these circumstances, nor does it mean the government is powerless to address these new weapons or modern circumstances, rather in
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such cases the proper approach is to reason by analogy from history and tradition. to give a hypothetical but more concrete example, there were no commercial airliners in 1791. it was only in 1961, just over 50 years ago that congress prohibited the carrying of concealed weapons into the cabins of a commercial aircraft. it's possible that 50 years is sufficiently long time to be longstanding and therefore constitutional. even if it were not, i would wager that most of us would consider the inside of a jet plane a sensitive place. under a conventional second step of the two-step process, that kind of regulation may be upheld on the grounds that it is dangerous to have guns in a plane. there would be evidence about the dangers. there would be other kinds of expert testimony. not necessarily historical
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testimony. if instead we used justice kavanaugh's approach, we might come to the same conclusion, for different reasons. first, there are numerous regulations going back to the english common law of the late 19th and -- and extending into american history in the 18th, 19th and 20th century that prohibited firearms in places where people tend to congregate like in fairs, markets and other places of amusement. a commonly cited example of such a regulation is the statute of north hampton. it stated that with exceptions for government officials, no man great nor small of what condition so ever could go with arms in fairs, markets nor in the presence of ministers and that would be under penalty of imprisonment. you could say that there's a
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longstanding practice dating back to our english common laws of regulating firearms in places where people congregate in confined quarters. the cabin of an airline is the modern version of the kind of place people congregate. therefore, prohibition on a loaded firearm in the cabins of planes are constitutional as well. of course, how broadly or narrowly to look at the analogy is key to this kind of interpretation. that judgement is outside the scope of my brief comments here. it's just to say that history is likely to continue to play a significant role in the second amendment litigation whether the courts end up keeping the two-part test or adopting what justice kavanaugh has advocated, a strict test and having a good sense of the facts, the breadth and scope of regulations is
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essential to make informed decisions about our post-heller second amendment jurisprudence. [ applause ] >> thank you all for coming out to this briefing. i know you have busy, complicated lives. we appreciate you taking time away to spend this morning with us. my charge is rather modest. i have to summarize 500 years of the history of gun regulation with lucidity, wit and conciseness. fear not, i won't try and rap it. i will do it in a narrative form. when you look at the history of gun regulation, which is something i have spent a good deal of time over the last 20
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years, what immediately jumps out at you is that for as long as there have been guns in america, they have been regulated. in fact, not only did the english people bring firearms technology, they brought a concept of law that included fire arms regulation. one of the most obvious examples is the one darryl mentioned, limits on the ability to travel armed in certain areas. in some cases you mile say sensitive cases. you can't bring it in front of the king's ministers or courts or fairs or markets, which is populous areas. we have a common law tradition that was carried over. parliament also regulated firearms. the colonies themselves and after the american revolution the individual states and finally the federal government. when dealing with the history of regulation, we are dealing with multiple levels of government action, different spheres.
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i point this out just to say that there are many tools. there are different tools available to different levels of government. we need to keep that in mind. one of the things that seems so unusual when you just sort of step back and look at the current debate over what we should do about firearms policy, debate tends to be played out as if the choice is regulation or liberty. what's so interesting from the point of view from the founding generation is that there is no liberty without regulation. in fact, the ideal of the 18th century was something they called well regulated liberty. the closest term we have to it is a phrase, ordered liberty. we fear anarchy. the goal is to create a well regulated society where everyone can enjoy their liberty with the
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lowest cost in terms of public safety and other considerations. that's the kind of framework i think we need to always have in mind when we are talking about the history of gun regulation. indeed, i would argue, if you read the text of the second amendment closely -- i think there are few texts in american constitutional law that have been poured over as closely -- it's one of the few provisions of the constitution that there was a grammatical brief filed. you don't see that happen that often. i went to a progressive school, so i won't go into anything about that. we used grammar as we felt. we used comma and colons so they fulfilled our existential needs. i'm sure that almost everyone here can recite the second
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amendment. a well regulated militia being necessary to the security of the free state, the right of the people to keep and bear arms shall know be infringed. people who favor stronger gun regulation are fonder of the first part of the amendment. people who are more committed to gun rights like the second part. the part that always gets left out and the one that has drawn my attention more fully recently is the middle. security of a free state. i think again, thinking about this idea of well regulated liberty, whatever policies we design, whatever goals we do, whether it's an expansion of gun rights or gun regulation, both of those policies, to be true to the second amendment, have to further the security of a free state. how we interpret what promotes greater security is something -- that's why we have a political system to argue that out, to gather facts and to debate them. i want to stress that there's not just one liberty issue here. there are competing liberty
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issues. liberty that gun owners claim about the right to keep and bear arms. liberty that we the people have to legislate and enact beneficial laws for -- to govern ourselves. then a liberty interest that we don't hear so much about but was absolutely essential to early america, which is the peace. the right to live in a peaceful society. the right to live under a regime where the rule of law -- not rule with a state of nature and violence predominates. those are important values. with that global framework in mind, what kinds of laws do we see when we go through the long history of gun regulation? there are many kinds of regulations under common law. we have alluded to some of them. a number of them dealt with where you could carry firearms in public. there were statutory regulations. one of the first things any colony or any town did was to pass laws about regulating the storage of gunpowder, which
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poses serious public safety concerns. some localities passed safe storage laws. boston in 1786 passed a law that you could not have a loaded firearm in a domestic dwelling because it posed a danger in case of fire, the firearm would discharge. how do we analogyize that? does that mean a modern safe storage law is constitutional? is it different because firearms technology has changed and bullets don't work the way muskets work? the purpose of this briefing is to say, there's a long history of gun regulation. there's interesting things that have been tried over the years. we need to be mindful of them. there have been regulations about the militia. not only were you required to purchase a firearm, government imposed that on you. but those militia guns could be
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inspected. if george washington had his way, he would have will private inspection of firearms twice a year as part of the goal of preserving a well regulated militia. there are a variety of regulations about the sale, transfer of firearms, particularly as we moved forward in time in the market revolution and the number and types of weapons expands. how are we doing on time? i'm good. okay. one area of gun regulation that i just want to draw your attention to -- it's probably the least -- most underutilized, least central to the way we think about it but the most
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an it's like the analog of the affordable care act, 18th century style. if you think about it, the great thing about taxation as a policy is it gives you carrots and sticks. you can encourage safe gun ownership. you could just as easily give someone a tax writeoff for buying a gun safe as you could impose a higher tax on a weapon that is more potentially dangerous if it's out in the civilian population. i would encourage you to think about taxation, because taxation gives us a variety of tools to encourage public policy. there are ways of preserving privacy. we file taxes. you can provide incentives. it's one of the oldest forms of regulating firearms. i want to draw your attention. it has received almost no attention since the new deal. the imposition of certain taxes
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on machine guns and other weapons during that period of our history. the other point i will make is that for the most of our history, really up until the 20th century, most gun regulation was done either at the local or state level. there is very little federal firearms regulation until the modern period, except for regulations of militia and except for encouragements for the firearms industry. without government intervention, we wouldn't have a firearms industry. it was because the government pumped money into the firearms industry that america has one of the greatest firearms industries in the world today. another part of the history that has been relatively hidden but is important to bring to the front. this idea that somehow government and guns are on a collision course, that's a relatively recent problem. for most of the american history, government, regulation, they were complimentary. if you had to summarize, what
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was the dominant position in the 18th century at the time of the second amendment, it was that most were pro gun and pro regulation. the problem we have today is that you have to choose one or the other side. really, the only way to live in a sew sie society where there a of guns is to have effective gun regulation. think around the world where populations have lots of guns, israel, switzerland, they have robust regulatory regimes. they have a lot of guns. not as many as america perhaps. but this idea that only with regulation you actually achieve true liberty. that's the most important takeaway from studying gun regulation. there are lots of examples throughout our history. how we adopt them to circumstances of today, those are complicated questions. we won't solve them today. history does provide us a lot of interesting examples to at least think about. thank you very much. [ applause ]
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>> jeff is going to -- for anybody standing, there are a few seats up here if you would like to sit down. feel free. i can see at least two up here. two in the middle over here if you would like to sit. as i said at the start of the briefing, we provided cards for you to write down any questions and then send them forward. i will be happy to field those and ask some questions of our presenters. jeff is standing here, my lovely assistant, who is going to collect those cards and hand them to me. if you have a card, if you want to just pass them to the end of your row and he will collect them. i can't believe there are no questions. that would be odd. let's just say. while you are pondering this -- i hope while you are writing questions on your cards and while jeff is collecting them, i
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will start with just what might seem a very basic question, but i'm interested in this question about analogy and the history of history's place in law and how this notion of historical analogy comes to be. darryl, you started talking about the historical analogy as significant because we live in a world which is technologically as well as so many other ways different from the world of the late 18th century. how does historical analogy come to have a legitimate place in jurisprudence? >> that's an excellent question. i guess there's a couple answers. the one is the interpretation which focuses on history at the linguistic level, what do words mean, or as heller seems to
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indicate also a kind of contextual level. how do you understand these words in the context? justice scalia in his concurrence says you know what the boundaries of the second amendment are by the regulations that exist. that's the sort of -- that's the end point with respect to history, especially in this space, is it is being driven by the commitments of the majority in heller and in mcdonald. then we are at the point of trying to figure out, well, at what level of abstraction do we talk about it? there are no jetliners in 1791. there's concern with fire firearms in crowded areas. if you are going to do this kind of work, this historical analogy work, what is the relevant level
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of generality at which to make the decision? that's something that justices and judges disagree about. >> thank you. that's helpful and interesting. i have at least ten follow-up questions myself, but i am going to go to the cards. i have a question for you, saul, about historical views on restricting gun ownership by age. can you speak to that? >> an excellent question. this both -- thank you. this both raises the analogy issue and raises an empirical question. if you were to look through statutes about the militia from the colonial period and the early american period, you would notice that the militia is composed of white men, roughly between the age of 16 and 50, depending on the state. when we try to make sense -- by the way, one of my favorite
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parts of this, particularly in massachusetts and in virginia, is that faculty of harvard college are exempt from the militia. we can get behind the idea that arming the harvard faculty would be a dangerous idea. once again, the wisdom of the founders prevails. the question is, if government can force you to participate in the militia if you are between a certain age, does that mean you have a liberty interest, you have a right to carry that gun? does that mean the government lass the right to compel you or prevent you from carrying a gun if you fall outside of a particular age? we get back to darryl's question about analogy. if we go forward into the 19th century, we find examples of limits on purchase of firearms to minors. then we get to this other interesting question, whether heller says, longstanding, where is the metric for constitutional time? when is a short constitutional
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time? when is a long constitutional time? do you go back to the 18th century to demonstrate longstanding? if a particular weapon only became popular in the early 20th century and laws passed the moment it penetrates the market, does that mean the clock starts in 1915 for demonstrating something is longstanding? there are a host of issues that have not been fully theorized by either the courts or legal scholars about what some of the key constructs in heller, which is the governing precedent, what this mean and how we would apply them. >> thank you. feel free to ask for additional cards if you want follow-up questions. wave your hand. not to be a ping-pong, but i'm going back to you, darryl. is there any indication that kavanaugh's approach to the second amendment, by historical analogy and i suppose otherwise, has other adherence on the
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supreme court right now? >> i'm a terrible court watcher. i don't know. i suspect, without having any sort of inside knowledge, that perhaps justice thomas would be sympathetic to this approach, perhaps gorsuch. i have strong doubts that there are five justices that would go all in on a strict history approach to the second amendment. i don't think that's the whole game. right? the fact that it is in the water in some sense ends up shaping the other kinds of questions that get presented to the court. why? because you might -- if you know that some of the justices are inclined to be skeptical of some other type of test, the briefing is going to look different. so the justices can only make
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decisions on what they see. whether or not you have five votes for a strict history test doesn't necessarily mean that history won't be influential as a matter of practical supreme court litigation. i say this as a former litigator, but not a supreme court litigator. >> thank you. we were talking on our walk over here. history is itself a kind of contested terrain. there's information we can find in history, but what the sources of that information are and how they can be contextualized are different. that's not because anybody is necessarily trying to pervert the course of truth but because we can argue about what the sources of the past might mean. saul, a question for you. i managed to lose it. there we are. the first congress spent more time debating militias than the seconds amendment. how do the courts consider those
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debates and the relative weight of those debates in their interpretations? >> another excellent question. it really depends on what your theory of interpreting the constitution is. one of the most interesting things about the heller decision is we had two versions of originalism. justice scalia and we had justice stevens' more intentionalist version. scalia was more concerned about dictionaries and using those sources to illuminate the meaning of the second amendment. stevens really drilled down into what they were arguing about during the first congress. they are different modes of analysis. they are different theories of originalism. the scalia version seems to be the one that most originalists, in the academy, are championing
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these days. constitutional theories come and go like fashion. and probably less quickly. you invest in originalism, you are good for 20 years of wearing that to the court. like so many things, there will be a backlash, a different interpretation that will emerge. for the foreseeable future, briefs with a good chunk of originalism will be written in many cases and will absolutely be written in anything touching on second amendment or gun issues. >> can i weigh in here? i think it's now pretty clear that heller is a much better decision in terms of its justification. if you bring in the modern era about how people understand
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rights with guns, it's more defensible than to say all this discussion about the militia in the 18th century was really about defense against criminals and burglars, because it's not in the record. in some sense, justice scalia was trying to meld two different lines of reasoning. one having to do with his originalist commitments and the other having to do with the belief that the second amendment actually protects guns -- personal ownership guns for personal purposes. these things didn't really tightly fit together in the same way that if he would have just said, things changed in 1868 or things changed in the 20th century, that would have supported the opinion much better. >> thank you. i did forget that part about turn off your phone. that's all right. it happens to everyone every now and then.
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i want to follow up with a slightly different question about localities, actually. your thoughts about state preemption laws. to what extent will those -- will local restrictions fall before constitutional argument? >> the seconds amendment is the supreme law of the land. it is incorporated through the 14th amendment due process to apply to states. if there's a conflict between the second amendment and 14th and a pittsburgh regulation, however the pittsburgh regulation falls, that's basic constitutional structure. if the question -- maybe i'm not understanding the level that we are talking about. if the question is about if a state legislature wants to create more rights than what the second amendment would protect,
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that's within the domain of what states can do. if states want to say, we authorize concealed carry guns everywhere, you don't need a license, they have the authority to do that. it's not amendment requires it. it's because it's positive law. >> one of the great joys about working on this is you appreciate irony. the great irony about this debate is when you talk about guns and the second amendment, so many things you could have predicted no longer play out the way you would expect. conservative constitutional theory for a long time has been very focused on reducing federal power and restoring power to localities and states. you have conservative advocates
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of gun rights wanting to endow the federal government that would have made barry goldwater have a stroke. the idea that once upon a time many, many gun regulations were done locally or at the state level, we have actually moved -- it's not been the liberal side of the spectrum that moved us there. it's the conservative side have moved us away from allowing localities to enact a variety of different firearms regulations, which is ironic from the historian's point of view. what its significance from public policy is a complicated question. once upon a time, we did have at built to say, localities will do this, states will do this and the federal government will do that. we have slowly been eroding local control. interesting, there's a pendulum swing. we see the rise of the second amendment sanctuary counties as pushing back against national
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federal or state regulation. it makes the subject of the second amendment endlessly fascinaing if you are writing about it. you guys who have to make laws, my heart goes out to you. it's complicated. >> it's not always of great use when you are trying to make law. >> nope. >> i'm going to save this question -- this is a big question about the politics of legislation here. i'm going to go back to this question about security. i'm going to rephrase. i apologize to the person whose question this is. i will rephrase your question slightly. ask first darryl and then saul to comment on this interpretation of security, the emphasis you placed on the middle of the second amendment. the question about what -- how
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security is interpreted and debated with legislation and case law and whether that is changing over time as well. whose security, collective security, individual security? >> as the professor and i in or book try to say, the security is a hook to try to slightly reframe or at least understand what the second amendment is for. when you say, what's the second amendment for, people say self-defense. it can't be that simple, because the example i always go to is a prisoner that is incarcerated has moral rights and indeed maybe even legal rights to defend themselves against an attack in prison. but we don't think of the prisoner as having second amendment rights. unlike other kinds of rights in the bill of rights that a prisoner clearly does not shed by being incarcerated.
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there's some separation between just self-defense and the second amendment. understanding that then we have to sort of appreciate the fact that maybe it's something a little more nuanced like safety. the idea we have as society that permits the private ownership of firearms, but for reasons of safety. then we have policy disagreements about what creates an optimal regime of safety with gun rights proponents saying, more guns in more places leads to ideal safety. people that want to regulate guns saying that a free market in the tools of violence doesn't necessarily lead to optimal outcomes, and therefore, there needs to be some kind of regulatory structure to create optimal safety. in an environment in which there is a constitutional right to actually possess firearms
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personally. that's one way of unpacking maybe what security means post heller. >> again, one of the great fascinating things about digging into the history is you begin to see that many of the sort of ways that second amendment plays out in popular culture and popular ideas in culture and po ideas in modern america are almost the mirror image of the historical second amendment. it's not unusual. there many times where the history, the law and the culture of the constitution don't line up perfectly. but just to give you an example that speaks to this issue of security. you often hear about second amendment remedies or second amendment is a right of revolution, it's the ultimate check. well, setting aside the fact that the treason clause of the constitution defines treason as taking up arms against the government, and so that theory of the second amendment would have silently repealed the treason laws, which isn't really a very astute reading of the constitution, the simple fact is that the founding fathers were perfectly
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able and eager to confiscate as many guns as they could from a variety of groups in 18th century america who they believed should not have them, including loyalists. so the real gun grabbers, if you want it, are the people who wrote your second amendment. so, you know, how do we make sense of the fact that the people who wrote our second amendment engaged in more wide-scale gun grabbing than any group up until that point in western history. well, the only way to make sense of it is to realize we're dealing with 18th century wig political and constitutional theory, we're not dealing with modern liberalism, modern lit tearianism, modern socialism, we are dealing with a different world where different concepts and different ways of thinking about legal and constitutional questions predominated and that is the real challenge is to actually be able to think in the mind set of an 18th century lawyer or congressman. and unfortunately all too often people who are quick to invoke the second
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amendment haven't done the hard work to dig into the 18th century context to understand what those words meant. >> going back to this question about analogy and contemporary analogy, so i'm going to just repeat this pattern here of asking you to start. this is a question really for both of you. is it the case, can we make an absolute case that the second amendment is rooted in english -- and actually these constitutional principles are rooted in english common law or are there other traditions from which they derive which might give us a different perspective on the second amendment? >> well, i mean, it's -- it's an incredibly important question. like i said, the reason why we talk about english history or the statute of north hampton and what's going on in 17th or 18th century england is because
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heller in some sense says the right to keep and bear arms, as justice scalia understands it, is a right that comes over from england, the premise is that when they're writing the second amendment in 1861 they're simply encoding a british understanding. now, very quickly, it becomes apparent that that's not really -- it's hard to do that. why? because as james madison identified very early on when talking about a completely different constitutional provision, the 7th amendment, he says, well, i'm not sure -- is it the common law that existed in england? is it our common law? is it the common law as repealed by our statutes? what we end up with is this kind of weird mishmash of we've got english history and we've got american history and, you know, as justice harlan once said, the business of constitutional
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decision-making is figuring out what traditions we adopted and what traditions we broke from. and so when we're doing this sort of history analysis, that's really the question, there's -- i mean, the tradition in england was to disarm what they called papists. well, that's not our tradition, but that's part of the tradition. and so trying to sort that out is the tough part about doing the analogy but it doesn't mean that it can't be done, it just means it's hard. >> can i ask a followup to that too, and that will be for both of you, which is isn't part of the story the extent the founders understood an english common law tradition or to the extent there was a common law tradition? >> i think it raises an important point. one way of reframing heller, a much better way than they actually did probably was, was
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the second amendment intended to elevate traditional common right law to expressed constitutional provision. and i think the general consensus among scholars who have gone over the evidence time and again since heller is that's absolutely not what the second amendment was about. that doesn't mean the right of self-defense wasn't entrenched in american law, it clearly was, but the second amendment was about a very different constitutional issue that had to do with issues of federalism, militias and you had to have the kind of militia the founders wanted you had to have a well-armed and well-regulated population with access to firearms. another fascinating thing about how we analogize from the past, the main goal of english firearms policy before the glorious revolution was basically to keep guns out of the hands of the lower class. there were very strict property requirements that prevented people from owning firearms. the main goal of early american firearms policy is to encourage americans to buy the guns that
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the government wants them to do because the big problem, americans are reasonably well-armed compared to their english brethren, but underarmed compared to the idea of a universal well-regulated militia. if you're a farmer, you don't need a bayonet to get a turkey on the table, you don't need a musket, you want a light fouling piece or light hunting musket. so our problem where we have sort of over 300 million guns in america, we're trying to figure out how do we analogize from a society where there was gun scarcity, perhaps, abundance of guns compare today the european tradition, but compared to what we have today, how do we analogize anything we have where we live in a society where the dynamics and the realities of firearms are so radically different. it's not to say that, you know -- i think it's an error to say, we should only protect muskets. because that's what they did. that's not what i'm saying. i'm saying that
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technology changes but so do the social and cultural and comic-con texts in which technology functions. and one of the things we haven't fleshed out is how do we recreate some of the kinds of mechanisms of safety that were informal because people are living in rural close-knit communities? i remember when i was teaching at william and mary and i lived down the street from the magazine, i remember talking to one of the firearms re-enactors who explained to me, he said, i would have known everyone in town, i would have had to work on their musket because they needed constant repair. well, you think about being able to buy a gun on the internet, how do we analogize from the world of the willamsburg magazine and the local gunsmith to the world where you can buy it on an online website? so, again, the great thing about being a historian, i can frame the problem, i don't have to solve it for you. that's why they pay us the modest bucks at the end of the day. but that is in essence, one of the major problems. >> okay.
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just continuing on this question of contextualizing. i want to ask you a specific question about infringed and abridged and how those two words differ in their implication and whether there is a historical context to that or whether we only need to concern ourselves with our contemporary conception of the distinction between those two words. >> well, it depends on whether you think we're doing a linguistic exercise where the meaning is interchangeable. you could say infringed means just the same thing as to violate. this is one of the definitions. it could be a binary, either it's on or off. either you've inn fingd or you haven't. or you can think of it as some kind of a spectrum, right, there's a diminution and that's an infringement and there's not a good linguistic account that i have seen so far about which way to interpret that.
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and so, you know, as between infringed and abridged, i'm not sure how much -- i mean, i'm not sure how much work you can do with that kind of things. lots of times they say in the 18th century things like, certain rights shall not be questioned and i don't know what that means. in the system of judicial review where judges get to interpret the constitution, shall not be questioned, does that mean -- >> even ought not be questioned. >> i just don't know what it means. you can press really hard on that linguistic nuance, but i'm not sure -- i'm not sure -- >> i think there's one thing that's very clear, though, and i wholehearted agree with you, darrell. the first amendment talks in a language of -- of, you know, abridgment, and the second amendment talks about a language of infringement -- >> the specific question is about whether they're individual or collective. >> i think the more important question is the first amendment has this idea that you can
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diminish something without crossing the threshold of destroying it. the second amendment has this very different kind of sense that there's some point which you cross the threshold which you have undermined the nature of the right. what you do with that i think is still up for debate. >> yeah. okay. here's a specific question about very, very briefly, saul. >> spot the professor. >> takes one to know one. this is about the long history of gun regulation in the 20th century and how gun regulation has changed in the 20th century in two sentences. >> the federal government, the new deal. >> okay. all right. >> commerce clause. >> you can have one more sentence. >> clearly the major transportation is until the 20th century with the exception of militia, statutes, the commerce clause is not the great engine
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of regulating anything and that would include guns. >> did you want to add to that? >> no. >> all right. i have -- i'm going to wrap up with a question for you in just a second, but there's a question here for saul that's about historical analogs with the current trend of -- the way the question is phrased on the card is self-identification by gun ownership, meaning identifying one as a gun owner, having gun ownership being a sense of one aez identity. whether that is a 20 or 21st century kind of phenomenon and how significant that is in three sentences. >> thank you. i think it's very clear that in the 18th century, firearms are a tool. people node about them, they need them, they use them. they may have a powder horn that they carve in an elaborate way
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to lend some kind of an artistic quality to it. people do not identify themselves the way supergun owners, people own over 15 guns, as that this is who i am. this is what defines me. this is the thing that makes me an american, this is how i define my sense of self. it simply was not part of the way guns -- because they're not advertised the way they are in modern america. you don't get your man card the way you do when you buy an ar 15 in the 18th century, you just look in this horrible newspaper, somebody has some fire locks, i should get a new gun. >> you can't analogize to the display of other kinds of weaponry that were so popular including in 18th century america. if you go to the governor's palace in willamsburg, you will see an extraordinary collection of swords, broad swords and all kinds of things. in other words, displaying weaponry, what has a longer history? >> in terms of the state and the military function in the state, all kinds of rituals, like you have musters, you have parading,
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you have all kinds of symbolic -- but i'm thinking more of the sense of having this gun in my house is key to understanding who i am as an american. >> what about the english nobility and their ability to guard castles and so on with extraordinary weaponry? >> of course the right to be able to carry an arm in public is a privilege of rank in english society. they're one of the few people who are exempted out of the statute of north hamptons prohibition, they are allowed to carry weapons suitable to their condition and as allowed by law. >> okay. thank you. i have one final question, this is for darrell, which is to ask you to do some future casting for us, which is we've been talking about the history of history -- >> i gave that up in 2016. >> but, you know, some of what you have said suggests that history and particularly history by a very specific form, history by analogy, is going to have a significant role going forward,
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particularly in this legislation and legal realm. do you want to say anything more about how significant you think that will be, whether that will grow and become more intensive? >> i mean, it could. i don't -- i have a feeling that the history -- the history of the second amendment and the regulations will end up finding their way about shading what might otherwise be what i think most legal scholars think is a kind of conventional approach to second amendment adjudication or to any constitutional adjudication. there's always these coverage questions. are we even dealing with a constitutional issue? not every kind of speech is first amendment speech. even if it is first amendment speech it's not protected exactly the same way everywhere that such speech occurs. so it's going to -- you know, even if we adopt those sort of baseline run-of-the-mill constitution decision-making structures, the history, i think, is going to influence how
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both, you know -- both strokes of this piston, you know, operate. the other thing i will add is -- and this is what we keep dancing around -- is the issue about the historical materials is they don't present their own an logical bases. there is a jurs prudential imperative which is like a rule of -- a rule of relevance as fred shower has said. you can say that a crowded market is like a plane if what you think is relevant is the fear that people will be harmed in close spaces, but if you say, no, the relevant material between that is you go to a fair to entertain yourself and you get on a plane to travel somewhere, then the analogy breaks down and there's nothing in the materials themselves that tell you which way to jump. that's what the judge does. >> exactly. well, as a historian i thank you
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for essentially saying it's complicated. so thank you all so much for being here and thank you to darrell and to saul. >> thank you for coming out. go forth and legislate. c-span has your unfiltered view of government. we are funded by these television companies and more, including buckeye broadband.
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>> patrick charles is a former marine and now senior historian for the u.s. air force and author of the book "armed in america: a history of gun rights from colonial militias to concealed carry." thanks for being with us on c-span3's american history tv. >> thank you steve. glad to be here. >> let me begin with the origins of the nra, the national rifle association. how did the organization come about and why? >> well, it came about after the civil war where there was poor mark manship by the

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