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tv   U.S. Gun Rights Regulations  CSPAN  August 11, 2021 6:55pm-7:57pm EDT

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♪♪ coming up on american history tv, a discussion on gun regulations. historian saul cornell and law professor darrell miller talk about the drafting of the constitution's second amendment and how it's been interpreted. the national history center hosted this event.
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>> good morning, and welcome. it's a pleasure to welcome you to this briefing hosted by the national history center. i'm karin wulf, the executive director of the institute of history and culture at william and mary and also professor of history at william and mary, and i'll be introducing today's speakers and moderating the q&a afterwards. please note that we have distributed cards there on your chairs and the purpose of those cards is to facilitate the q&a. so, jeff -- jeff is standing outside. he's waving. there you go. there's jeff. he'll collect those cards for any questions that you have and then i'll manage to collate the cards and facilitate the discussion with the speakers. we are looking forward to a very 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 strictly nonpartisan and as such, the purpose of the briefing is not
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to advocate for any particular policies or public positions, but to provide historical context to help inform policymakers and the public. as ever, we are grateful to the foundation for funding this program and to 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 decision we take. whether individual daily ones such as assumptions the trains will run on time or not, based on our historical experience, or collective political ones such as when and 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
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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 colonies into our nation. the wider continental early america, however, shows an equally foundational but more complex and challenging picture of how our great nation emerged. yet, history often offers -- rarely offers -- let me try that again. yet, history rarely offers a straightforward answer to questions we pose from later and typically a very different vantage. to paraphrase the great haitian scholar, history is not waiting in a kitchen cabinet. waiting for us to open the right door. and et voila, we can see the past in all its fullness. rather, our comprehension of the past relies on the preservation of the historical record, which
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is often shaped but 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, for example, track the progress of legislation through the congressional record and 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 innumerable individual efforts, energy, expertise, collaboration, how are those captured? what is really the history? we do not so much revise history as we understand it afresh, using new information, new tools, new perspectives. and as the great american historian edward ayers likes to say, i am a fan of revisionist history just as i am a fan of revisionist medicine. the history of law and legislation is a particularly interesting case in part because lawyers and historians view and use the past in distinct ways.
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with the former, by vocation, having an instrumental view of the past. we're fortunate today to have with us both a historically minded legal scholar and a historian of the law. saul cornell is paul and diane gunther chair in law. saul cornell is paul and their chair in history at -- university. he earned his ph. d. at the university of pennsylvania. his first book was the city of the other founders, anti federalism and the dissenting tradition in america. 1788 to 1828. he subsequently published extensively on the second amendment in the history of gun regulation including his 2006, book a well regulated militia, the founding fathers in the origins of gun control. his articles have appeared in leading journals, such as the -- and the yale law journal. he offered the chapter on the right to bear arms in the oxford handbook in the u.s. constitution. he's the
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professor of law at duke university school of law. he was a marshals color at oxford university and he own -- earned his j. d. in 2001. just blocker, he's the author of a positive second amendment. writes, regulation, and the future of power. he's published in leading law review such as yale law and the 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 cold courts and in legislative legal briefs. we are going to begin this morning with darell for the historical work. >> thank you so much for the introduction. thank you to the
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national history center for this invitation to speak with. you i should start with a disclaimer which is i'm not a historian. i'm a legal academic. i'm a lawyer who is really interested in the way that history influences the way legal doctrine develops. professor cornell, saul is going to be much better and actually speaking with authority and detail on the actual historical regulations. instead i want to offer a kind of framing for you about what the supreme court does, adam eu's history to justify its conclusions. so the 2008 decision, district of columbia versus heller, the high court resolved one very important but rather narrow issue. that issue was whether the second amendment right to keep and bear arms applied to rights to keep unarmed for personal purposes like self-defense in the home or whether it was a right that was solely related to participation in a organized group like the militia. in a five to four decision, heller said definitively that the right is individual right to have and keep arms for personal
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purposes. but the late justice scalia, who wrote the hillary opinion also wrote expressly, "like most rates the right secure by the second amendment is not unlimited. a long history of firearms legislation, " he said, "shows the right was not the right can carry any weapon whatsoever in any manner and for whatever purpose." just a scalia was quick to observe the, quote although we haven't undertaken exhaustive historical analysis today, the full scope of the second amendment nothing should be taken to cast doubt on the long-standing prohibitions on the possession firearms and the mentally ill, -- insensitive places such as schools and government, buildings or laws imposing qualifications on the commercial sale of arms. in his opinion, in footnote 26 says these examples that he's just
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offered were that. that examples. our list doesn't purport to be exhaustive. what's 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 what is known as a two part test. this two part test first asked whether the regulation implicates the second amendment at all. in other words, does the second amendment cover the matter in question. if it doesn't theoretically that's the end of the case. frequently the first part of it to protest relies on some of valuation of the history of the regulation or it pedigree, even in specific details or as often in its overall purpose. for example, heller says fairly definitively that concealed carry can be prohibited. in fact, justice scalia used concealed carry positions as elusive story of a historical prohibition. to quote, "for example the majority of the court held the prohibitions were carrying concealed weapons were lawful under the state
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amendment were still analogs." concealed carry do not raise the second amendment question at all because there is a long history of regulating concealed carry. similarly, heller suggests that machine guns can be prohibited because machine guns fall within a historical prohibition on the possession or carrying of dangerous and/or unusual weapons. it's not that these regulations or conceal carry on machine guns require another justification to support them, they are constitutional in the second amendment the same way that prohibitions on extortion or securities fraud are categorically constitutional under the first amendment. now if the second amendment covers the regulation at issue the second part of the question asked of the regulation impermissibly earned the right to keep and bare arms. this is a protection question. typically judges apply some even scrutiny to this question examining the purpose of the legislation and how tightly the
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regulation fits its stated purpose. if the regulation burdens too much core second amendment activity then it's unconstitutional but if it's burdens or minor than the regulation can stand. so a prohibition for example on possessing a firearm with obliterated serial numbers has been held to be constitutional it covers the second amendment, the second amendment is implicated but the regulation burdens are so minimal that it can survive the challenge. some judges among them, justice brett kavanaugh, as indicated that the southern part of the two part test, the balancing of the right -- would advocate on approach that would rely solely on text history and tradition, under this text history and tradition text, when he wrote
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as a d. c. circuit court judge, -- doesn't mean that governments lack flexibility or power to enact government regulations. indeed according to the justice, he says quote, governments appear to have more flexibility with a historical tests then with other kinds of tests. so what does justice kavanaugh mean that history may provide local governments more flexibility? as professor cornell will note, there is a long history of regulation in america and in addition to regulations of types of arms that people can possess, there were regulations on how they can be carried, where they can be stored, how they could be stored, as well as various licensing regimes. that said, justice kavanaugh is clear in
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his heller two opinions that the second amendment does not only permit those regulations that exist only in 1791 and more than the second amendment only protects those kinds of farms that exist in 1791. as he stated that, when the legislation seek to a have new weapons that have not only existed on to impose new regulations because of traditions that have not previously existed, they're obviously will not be a history of tradition of banning such weapons when banning such regulations. that does not mean the second amendment does not apply to these weapons, or in the secret instances. where does it mean that the government is powerless to address these new weapons or modern circumstances, rather in such cases the proper interpretive approach as to resign by analogy from history and tradition. so, to give a hypothetical but more concrete example, there were no commercial airlines obviously in 1791. indeed, it was only in 1961, just over 50 years ago,
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that congress prohibited the carrying of concealed weapons and to the cabins of a commercial aircraft. it is possible that 50 years is sufficiently long time to be long-standing, and therefore presumptively constitutional even if it were not, i would wager that most of us would consider the inside of a jet plane a sensitive place. now, 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 will be other kinds of expert testimony, but not necessarily historical testimony. if instead we use justice kavanaugh's approach to analyze
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from history, we might come to the same conclusion, albeit for different reasons. first, there are numerous regulations going back to the english common law of the late 19th and early eight -- excuse, english common law and then extending into the american history, both in the 18th, 19th and even the 20th century that prohibitive firearms in places where people tend to congregate liking fares, markets and other places of amusement. a commonly sided example of such a regulation is the statute of northampton. an english regulation from i'd wear the third, that's stated that with exceptions for government officials, quote no man great nor small and wet conditions could go with arms and quote fairs markets knowing the presence of justices and other ministers and that would be under penalty of imprisonment. now, reasoning from analogies to history, you can say that there is a long-standing practice aiding back to our english common law forebears of regulating firearms and places where people congregating confined corners. the cabin of an airplane is just a modern version of the kind of place that people congregate in confined quarters, and
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therefore prohibition on loaded fire arms in the cabinets of planes are presumptively constitutional as well. of course, how broadly or narrowly do you look at the analogy is key to this kind of interpretation. and that kind of judgment is outside the scope of my brief comments here. it's just to say that history is a likely to continue to play a significant role in the second amendment litigation, whether the courts and up keeping the two part test or adopting what justice kavanaugh has advocated a strict text history of tradition test and having a good sense of the facts. the scope of regulations is essential to making informed decisions about our post heller
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second jurisprudence. [applause] >> well, thank you all for coming out to this briefing. i know you will have busy, complicated lives. should we appreciate you taking time away to spend this morning with us. my charges rather modest, i have to summarize a 500 years of their history of gun regulation with the lucidity, witt and incision, which of course i'm not even sure people can wrap 500 years of gun regulation history in the time permitted. fear not, i won't try and wrap it all just do it in a narrative form. so, when you look at the history of gun regulation, which is something i've spent a good deal of time over the last 20 years, what immediately jumps out at you is that for as long as there have been guns in america, they have been regulated. that in, fact not only that the u.s. who came over to america bring english farms technology, they brought a concept of law that included firearms regulation. and one of
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the most obvious examples is the one that my colleague darell mentioned that limits on the ability to travel on and in certain areas in some cases you might analogize them to sensitive places, so you can bring your gun in front of a kings ministers or in courts or markets which probably analogizes like darell suggested, to populous areas. so we have a common law tradition that was carried over, of course parliament also regulated firearms. and then the colonies themselves and eventually after the american revolution and the individual states and finally the federal government. so, when dealing with the history of regulation, we're dealing with multiple levels of government action, difference spheres and i point this out just to say that there are many tools, but there are different tools available to different levels of government. we need to just keep that in mind. so, one of the things that seem so unusual when you just sort of step back and look at the current debate over what we should do about firearms
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policy, the debate tends to be played out as if the choice is regulation or liberty. what's so interesting from the point of view of the founding generation is that there is no liberty without regulation. in fact, the ideal of the 18th century was something that they quite literally caldwell regulated liberty. that term is probably not used as often in modern terms, the closest term to me have to it is a great phrase that justice cardoza coined, ordered liberty. so, the notion is we fear tyranny, but we fear anarchy and so the goal is to create a well regulated society where everybody can maximally enjoy their liberty with the lowest cost in terms of public safety and other considerations. so, that's the kind of framework i think we need to always have in mind when we're talking about the history of gun regulation. indeed, i would argue if you actually read the text of the second minute closely, and i think there are very few texts
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in american constitutional law that have been court over that closely. it's one of the few provisions of the constitution that there was a grammatical brief filed in the supreme court case during hller for linguists that gave the court a lesson in abject of absolute, which is a latin grammatical construction. you don't see that happen too often. i want to progressive school so i won't go into details about that. we sort of used grammar as we felt. we used comments and cohen saw the kind of fulfilled our existential needs. but, you know, progressive schools have the versus two, i suppose. so, know, progressive schools have the versus two, i suppose. so, i'm sure that almost everybody i'm sure that almost everybody here could reside the second here could reside the second amendment, but i will make you amendment, but i will make you do it. but of course, it's as a well regulated militia being do it. but of course, it's as a necessary to the security of well regulated militia being each state, the right of the people to keep and bear arms necessary to the security of shall not be infringed. generally speaking, people who favor stronger gun revelation our founder of the first part of the amendment. people who
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are more committed to gun rights like the second part of the amendment, and the part of the amendment that always gets left out in the one that has drawn my attention more fully recently is the middle. security of a free state. so, 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 an expansion of interpret -- what promotes gun regulation, both of those policies to be true to the second amendment have to further the security of the greatest cured for the free state is of course something that's why we have a political free state. and, how we system to try to argue that all together, faction to debate them. but again, i want to stress that there is not just one liberty issue here. there are competing liberty issues. there is a liberty that gun owners claim about the right to keep me and bear arms, there's liberty of we have people have to legislate and enact beneficial laws to govern ourselves and then a liberty interest that we don't hear so much about but it is absolutely essential to early america, which is the peace. you have to
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live in a peaceful society, the right to live under regime with the rule of law, not a rule where the state of nature and violence per dominates. those are all important values. so, with that sort of global framework in mind, what kinds of laws too we see when we go through the long history of gun regulation? there are many kinds of regulations under common law, we've already alluded to some of them, and have them dealt with where you can carry firearms in public. there were statutory regulations, one of the first things any colony or any talent did was the pass laws about regulating this sort of gunpowder, which of course poses public safety concerns. some localities passed safe storage laws, for instance, boston in 1786 passed a law that you cannot have a loaded firearm in domestic dwelling, because it posed a danger in
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case of fire. the firearm would discharge. so, again, how do we analogize that? what does that mean? is that law mean that a modern safe storage law is presumptively constitutional. is it different because firearms technologies changed and bullets don't work the way muskets worked? these are interpretive issues that require flushing out by the purpose of this briefing is just to say, there's a long history of gun regulation, there's a lot of interesting things that have been tried over years. and we need to be mindful of that. there have been regulations about the real isha, and, you know, not only where you're required to purchase a firearm, government imposed a requirement on you, but those militia guns could be inspected. if george washington would have had his way, he would've had private inspection of firearms twice a year. as part of a goal to preserve a well regulated militia. and, there are a variety of regulations about the sale, transfer of firearms
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particularly as we move forward in time in the market revolution expands and the number and types of weapons expand. now, how are we doing on time? i'm good. okay, one area of gun regulation that i just want to draw your attention to because it's probably the least -- most under you really utilize, the least central to the thinking we're about it but some ways is the most ancient ways of achieving public policy goals is taxation. as i've already suggested, the state militia acts and the first militia act where the federal one was the first unfunded federal mandate. you're required by law to purchase a firearm, if you fail to do that you could be penalized. it's sort of like the affordable care act. 18th century style. now, if you think about it, the great thing about taxation is as a policy is it gives you both carrots and sticks. so for instance, you can encourage safe gun ownership, you could just as easily give someone a tax
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writeoff or buying a gun safety denies you could impose a higher tax only weapon that is potentially dangerous if it's out in the civilian population. so i would encourage you to think about taxation because again, taxation gives us a hold variety of tools to encourage public policy their ways of preserving pot privacy because the all file are taxes, you could provide incentives and it is one of the oldest forms of regulating firearms so i just want to draw your attention but it has received almost no intention, really since the new deal. and the imposition of certain taxes on machine guns and other weapons during that period of our history. the other point i'll 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 was very little federal firearms regulation until the modern
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period except for regulations of the militia and except for encouragements for the firearms industry. so, essentially without government intervention, we will have a firearms industry. who's become the government pump money into 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 it's important to bring to the fore because this idea that somehow government and guns are in on a collision course, that's a relatively recent problem in american history. for most of american history, governments, regulation are complementary so that, if you had to summarize what was the dominant position in the 18th century at the time of the second amendment was framed, would be that most americans were probably pro gun and pro regulation. the problem we seem to have today is that you have to choose the other side. but, really the only way to live in a society where there are a lot of guns, is to have a society where there is effective gun regulation. if you think of examples around the world, where populations have lots of guns, israel, switzerland, they all have very
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robust weems. there are societies that have a lot of guns for capital, covid as many as america perhaps, but this idea of only with regulation, you actually achieve true liberty. that is i think the most important takeaway from studying the history of gun regulation. and there are lots and lots of examples throughout our history how we adapt them to the circumstances of today. the history does provide us with a lot of interesting examples. thank you very much. >> if anybody is standing, there are still some seats, up here, please come down. feel free. there are some over here if you would like to set. so as i said at the start of the briefing, we provided cards for you to some forwards. well as some questions of the presenter. is my lovely
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assistant who will collect the cards and hand them to me. and you've got a card, passed them to the end of the, row she will collect them. i can't believe there are no questions. that would be odd. let's just say. well jeff is collecting them and bring you've been up to me, i have what might seem like a basic question, but a bird's-eye view historically, i am interested in this question about analogy, and histories place and law, and how this notion of historical analogy comes to be. darrell, you started off by talking about
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the specific invocation of historical itty because we live in a world technologically and in so many other ways we are different from the world of the late 18 century but how does historical analogy come to have a legitimate place in jurisprudence? >> it's an excellent question. there's a couple of answers. one is the interpretive movement of originalism that focuses intensely on history, either at the linguistic level, what do the words mean? or as heller seems to indicate, also a can -- contractual of. well how do you understand the words in the context, justice scalia, his concurrence, the city of chicago, mcdonald, says you know the boundaries and the regulations that exist. so that is the end point with respect to history, especially in this
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place, it is being driven by the commitments of the majority, and heller, and the macdonald. we are at the point we are trying to figure out what level of obstruction to talk about? obviously there were no jetliners in 1790, one but there is concern with fire arms in crowded areas. so that is the dress prudential point, if you are going to do this kind of work, this historical analogy work, what is the relevant level of generality at which to make the decision? that is something that justices and judges disagree about. >> thank you. that is really helpful and interesting. i have at least ten follow-up questions myself, but i'm going to go to the cards here. i have
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a specific question for you about historical views on restricting gun ownership by age. can you speak to that? >> this both raises the analogy issue and it raises the empirical question. if you are to look at statutes from the militia, from the colonial period and the early american period, you would notice that militia is composed of white men roughly between the ages of 16 and 50 depending on the state. so, now when we try to the great with that, means by the way one of my favorite parts of the 18 century was massachusetts, particularly in massachusetts and virginia the faculty of harvard college are exempt from -- i think we can get behind the idea that arming the harvard faculty would probably be a very dangerous
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idea, so once again the was dumb of the founders prevails. -- if you are in between is certain age. does that mean you have a liberty interest? the you have the right to carry the gun or does it mean that the government has the right to prevent you or prevail you from where -- using your gun if you fall in between certain age. so we get back to darrell's question about analogy. if we go forward into the 19th century we actually find examples of limits on purchase of firearms to minors. then we get to this other interesting question, when heller says long-standing, where is the metric for constitutional time? when is a short constitutional time? one is a long constitutional time? do you have to go to the 18th century to demonstrate long-standing? do you have to go to the civil war era? if a particular weapon only became popular in the early 20th century, and the laws passed the moment it penetrated the market. does that mean the clock starts in 1915 for demonstrating something is long-standing? there are a host of issues that have not been fully theorized
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by either the courts or legal scholars about what's some of the key construct in heller, what they actually mean and how we would apply them. >> you should all feel free to ask for additional cards if you want follow-up questions. stick them. waiver hand. not to be a ping-pong here but when you go back to you daryl. so is there any indication, question asked, kavanaugh's approach to the second amendment that is by historical analogy or i suppose otherwise that has hearings to the supreme court right now? >> i am a terrible court watcher. i suspect without having any kind of insight -- inside knowledge, that perhaps justice thomas would be sympathetic to this approach. perhaps justice gorsuch. i have really strong gets that there
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are five justices that would go all in on a strict history approach to the second amendment. but i do not think that is the whole game. right? the fact that it is in the water in some sense ends up shaping that other kinds of questions that get presented to the court. why? 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. justices can only make decisions on what they see. whether or not you have five votes for a history test doesn't necessarily mean that history won't be influential just in terms of a practical supreme court litigation. i say this as a former litigator, but not a supreme court litigator. >> thank you. as you and i were talking about history itself is kind of a contested terrain. there is information we can
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find in history. with the sources of the information are and how they can be contextualized or radically different. people are not necessarily trying to provoke the course of truth. but because we can argue about with the sources of the past might mean. so saul, a question for you. i just managed to lose it. the first congress spent more time debating militias than the second amendment. so how did the courts consider those debates and the relative weight those debates in their interpretations? >> another excellent question. it really depends on what your jurist potential theory of interpreting the constitution is. one of the most interesting things about the heller decision is we had two versions of originalism. we had justice scalia's originalism and justice kelly is more
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intentional version of intentional-ism. justice scalia was more concerned about dictionaries and what went on in the antebellum period and using those horses to illuminate the meaning of the second amendment. russ justin stevens really drilled into whatever talking about in the congress. there are different interpretive, modes analysis, different theories of originalism. the scalia version seems to be the one that most original lists, at least in the academy are championing these days. constitutional theories come and go, sort of like fashion. but probably less quickly. you are probably good for 20 years wearing originalism to the court. like so many things, there will be a backlash. there will be a different interpretive modality that will emerge. for the foreseeable future, briefs with a good chunk of originalism will be written in anything touching on second amendment or
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gun issues. >> can i weigh in? i think it is now pretty clear that hillary is much better decision in terms of its justification if it abandons originalist premise. right? if you second bring instep from the 19th century or early 20th century or even in the modern era about how people understand rights with respect to guns it is a much more defensible decision than to say all the discussion about the militia and the 18th century was really about offense against criminals and burglars, because it is not in the record. so in some, sounds justice scalia you know was trying to meld to different lines of reasoning. one having to do with his original commitments. the other having
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to do with the belief that the second amendment actually protects ownership, personal ownership of guns for personal purposes and these things didn't very tightly fit together in the same way as if he said things change in 68 or in the 20th century, that would have supported the opinion in the matter. >> i did forget the part about turn of your phones. that's all right. it happens to everyone now and again. i will follow up with us separate question about localities. back to darrell about state presumption laws and do localities -- the examples added on the card is pittsburgh stand a chance of enacting local ordinances and local challenges? to what extent will the local ordinances fall before the constitutional argument?
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>> the first law is the supreme court of the land. it is interpreted with the -- if there is a conflict between the 13th amendment and the 14th amendment and eighth pittsburgh organization, the pittsburgh regulation falls, if the question is about, if a state legislature wants to create more rights than with the state legislature would protect that is within the domain of what states would do. if states want to say we offer conceal gun carry everywhere, don't need a license, they don't have the authority to do, that not because the second event requires it. >> one of the great choice about working on this issue as a historian is you get to push the -- the trope of the
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historian. the great irony about this debate is when you talk about guns and the second amendment so many of the things that you could have protected no longer start to play out the way you expected. so constitutional conservative theory for a long time has been focused on reducing power and restoring powers to states. that was the driving force behind federalism. when you look at reciprocity you have a conservative holders of gun rights -- what made very goldwater just basically have a stroke. so the idea that once upon a time many, many gun regulations were done either locally or at the state level,
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we have actually moved. it hasn't been the liberal side of the spectrum that has moved. the conservative side of the spectrum has moved as a way from allowing localities ten activity of our arms regulations. which is again ironic from a historians point of view but the significance of public policy is a complicated question. once upon a time, we did have the ability to say localities will do, this states will do, this and the federal government will do that. we have slowly been a road in local control. interesting. there's a pendulum swing. we are seeing the rise of sanctuary counties as another example of people pushing back against national, federal, where state regulation. so it just makes the second amendment endlessly fascinating if you are on the sidelines writing about it. actually they don't have to make laws. my heart goes out to you because it is complicated. >> it is the true trope of the
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historian. it's complicated. not. irony its complexity. which is not always of great use when you are trying to make law. okay. 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 your question slightly. and ask for to comment on this interpretation of security. the emphasis you placed on the middle of the second amendment and the question about what's -- how security is interpreted and debated with legislation and case law and whether that is changing over time as well. that is who is a security. collective security? in individual security? >> well, as professor joseph
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and says in our book sort of tried to say is that security is a text tool hook to try to slightly refrain or at least understand with the second amendment is for. when you say, well what's the second minute for? it will people say self-defense. but it can be that simple, right? because the example i always go to is a prisoner that is incarcerated has moral rights and maybe even legal rights to defend themselves against an attacking prison. but we don't think of the prison is having second amendment rights. unlike other kinds of rights and build rights clearly does not shed by simply being incarcerated, so there is some separation for self-defense and the second amendment. so, understanding that, then you sort of have to appreciate the fact that will maybe it's something a little bit more nuanced like safety and that is the idea we have a society that permits the private ownership of firearms, but for reasons of safety. and
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then we have policy disagreements about what creates an optimal regime of safety with gun rights proponents for example saying, more guns and more places leads to ideal safety and 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 personally firearms. and that's one way of unpacking maybe what's security means in post howler. >> so again, one of the great fascinating things about digging into the history ace you came to see that many of the sort of ways that second amendment plays out in popular culture in modern america are almost a mirror image of the
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historical second amendment. and it's not unusual, there are many times where the history, the law and sort of the culture of the constitution don't line up perfectly. but just to give you an example that speaks this issue of security so you often hear about, you know second amendment remedies or second amendment as a right of revolution as the ultimate check. well, setting aside the fact that the clause of the constitution to find the constitution -- and that theory of the second amendment would've silently repeal the treason clause, which isn't really a very astute reading of the constitution. the simple fact is, that the founding fathers were perfectly able and eager to confiscate as many guns as they could from a variety of goods in 18th century america. who they believed should not have them, including loyalists. so, the real gun grabbers, if you wanted, are the people who
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wrote your second amendment. so, again, how do we make sense of the fact that people who rode our second amendment probably engaged and more wild scale money grabbing than anyone group up to that point in western history. well you want to make sense, we're dealing with 18th century whip political and constitutional theory. we're not dealing with modern liberalism, modern libertarianism, modern socialism, we're dealing with a different world where different concepts and different ways of thinking about legal and constitutional questions dominate. and that is the real challenge, is to actually be able to think in the mindset of an 18th century lawyer or congressman. unfortunately, all too often, people who are quick to invoke the second amendment and almost incantation like way, haven't done the hard work to dig into the 18 century context to really understand what those words meant.
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>> going back to this question about analogy and contemporary analogy. so, i'm going to just repeat this pattern here, i'm asking you to restart. 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 and i actually its constitutional principles a ruling english common law, or are there are traditions that when which they may derive which may give us a another perspective on this amendment? >> well, it's an incredibly important question. like you said, the reason why we talk about english history or the statute of the northampton north what's going on in the 17 13th century england is because heller says, the right and to keep and bear arms, as just ice scalia understands, it's a right that comes over from england. the premise is that when they're writing the second amendment in 1791, they're simply including a kind of british understanding. now, very quickly, it becomes
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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 in the seventh amendment, he says i'm not sure whether the common law that exist in england? is that are common law? is it the common law as repealed by our statutes? so, what we end up with is this kind of weird a mishmash of, we've got english history and then we've got american history and, you know, as justice harlan when says, the business of constitutional business making is figuring out what traditions we have gone and with traditions we broke from. and so, when we're doing this sort of history analysis, that's really the question. the tradition in england was to disarm what they called,, right? well, that's not our tradition. but that's part of the
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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 follow-up to that two and that'll be for both of you. which, is is it part of the story as, well the extent of which the founders understood and english common law tradition and actually to which the extent there which there actually was a common law tradition? >> i think that's a good point to raise because one way of reframing heller, probably a much better way than they actually did was the second amendment intended to elevate traditional common -- to actually express provision, and i think the general consensus among scholars, who have gone over the evidence is that that's absolutely not what the
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second ammendment was about that doesn't mean that english common law of self-defense wasn't further entrenched as american, like clearly was. but the second amendment was about a very different constitutional issue that had to do with issues of federalism, had to do with militias, and had to do with the fact that in order to have the kind of man they shut the founders wanted, you had to have a well armed and well regulated population with access to firearms. i mean, 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 lower class. there were very strict property requirements restricting people from owning firearms. the main goal of earlier american firearms policy, was to encourage americans to buy the guns that the government wants them to do. because the big problem americans are reasonably well armed compared to their english brethren but woefully under armed compared to the ideal of our universal well regulated militia because if you are a farmer, you don't
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need a buy a bayonnet to get a turkey on the table. you don't need a musket, you want a light fallen trees where a light hunting musket. so, our problem or we have sort of a gun scarcity - over 300 million guns in america, were constantly trying to figure out, how do we analogize for the society where there was gun scarcity, relatively speaking, perhaps an abundance of guns compared to their european tradition -- how do we analogize anything they did when we live in a society where the dynamics and the realities of firearms are so rapidly different? now, it's not to say that, you know, i think it's an error to say, that we should only protect muskets because that was what they did? that's not what i'm saying. i'm saying that technology changes but so do the social and cultural economic context in which technology functions and one of the things that we have been fleshed out is how do we recreate some of the kinds of
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mechanisms of safety that are informal. i remember when i was teaching at -- and i lived down the street from the magazine, i remember talking to one of the firearms reenactor's who explained to me, i would've known everyone in town, i would've had to work on musket because they needed constant repair. well, you think about being able to buy a gun on the internet how to be analogize from the world of the williamsburg magazine and a local gun smith to the world where you can buy it on an online website. so, again, the great thing about being a historian, i can frame a problem, i don't have to solve it for you. that's why they pay us the remarkably modest bucks at the end of the day. but that is an essence one of the major problems. >> so, just continuing on this question of contextualizing. i want to ask a very specific question about infringed and abridged and how those two words differ and their implication and whether there is a historical context that or whether we only need to concern
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ourselves with our contemporary inception 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. so, you know, you could say infringed means just the same thing as to violate. i mean, it's one of the definitions. so it could be a binary. here it's honor off. either it's infringed or you haven't, or you can think of it has some kind of spectrum, right? there is a diminish in and that's an infringement. and there is not a good linguistic account that i have seen so far about which way to interpret that and so, you know, as between infringed unabridged, i'm not sure how much -- i mean i'm not sure how much work you can really do with that kind of thing because a lot of time they see in the 18th century things like certain rights shall not be questioned. and i don't know
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what that means. in the system of judicial review where judges get to interpret the constitution you say, shall not be questioned. >> even ought not be questioned. >> i just don't know what it means. so you can press really hard on that sort of linguistic nuance, but i'm not sure -- >> i do think there's one thing that's very clear and i wholeheartedly agree with that. the first amendment talks in a language of, you know, abridgment and the second amendment talks about a language of infringement. >> the specific question is actually about whether there are individual or collective. >> i think the more important question is the first amendment has this idea that you can diminish something without crossing the threshold of destroying it. the second amendment has this very different kind of sense that there is some point, which you cross the threshold which you have undermined the nature of the right. but, what you do with that i think is still up for debate. >> okay here's a specific
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question about very briefly. >> i thought the professor. >> takes one to no one. so, this is about the long history of gun regulation in the 20th century and how gun regulation has changed in the 20th century into sentences. >> the federal government, the new deal. >> okay, thank you. you can have one more sentence. >> clearly, the major transformation is until the 20th century, with the exception of militia statutes, the commerce clause is not a great engine of regulating anything and that would include guns. >> did you want to add to that? >> no. >> all right, 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
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about historical analogs about the current trend about -- self identification by gun ownership, meaning identifying oneself as a gun ownership, having gun ownership as being a sense of one's identity. and that is a 20th or 21st century phenomenon and how significant that is in three sentences. >> thank you. i think it's very clear that in the 18th century, firearms are utilitarian. they are a tool. people know about them, they need them, they use them, they may have a powder horn that they carved in an elaborate way to land some kind of artistic quality to it, people do not identify themselves the way modern so-called super gun owners, people own over 15 guns as this is who i am. this is what defines me. this is the thing that makes me an american. this is how i define me sense of self in society. it simply was not part of the way guns
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because they're not advertised the way they are in modern america. you don't need your man card the way you do you buy an ar-15 in the 18th century, you just look at this horrible newspaper and say somebody's got some firelocks, i should go down to the gun smith and get a new gun. >> so you can't analogize that to the display of other kinds of weaponry that we are so common in the modern period including in 18th century america. if you go to the governor's palace and williamsburg you will see an extraordinary collection of swords, broadsword, displaying weaponry, what has a kind of longer history. >> sure, in terms of the state and the military functions of the state, you've, musters you have parading, all kinds of symbolic -- i'm thinking more in the sense that having this gun in my house is key to understand who i am as an american. >> what about their english nobility 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
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english society. they are one of the few people that are exempted out of the statute of northampton's prohibition. they are allowed to carry weapons suitable to their condition. that's allowed by law. >> one final question. this is for daryl. to ask you to do future casting for us. we've been talking about the history lessons. but you know, some of what you have said suggests that history, history by a specific form, history by analogy, is going to have a significant role going forward. particularly in this legislation and legal realm. do you want to say how significant you think that will be? whether you think it will grow and become more intensive? >> it could. i have a feeling that the history of the second amendment regulations will end
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up finding their way about shaping what would otherwise be what's most legal scholars think this a conventional approach to any constitutional adudication. there are all these legal questions. are we dealing with a constitutional issue? -- even if its first amendment speech, it's not protected exactly the same way everywhere that such speech occurs. so even if we adopt those more baseline run of the mill constitution decision-making structures, the history i think is going to influence both strokes of this piston will operate. the other thing that i will there is a
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judas prudential imperative, a rule of relevance. that's what fred tyler said. you can say that a crowded market is like a plane if what is relevant is that the 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 to a plane to travel somewhere than the analogy breaks down. there's nothing in the materials themselves to tell you which way to jump. that is with the judge does. >> as a historian, i thank you for essentially saying it's complicated. >> thank you so much for being here. thank you to darrell and to all. >> good job.
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