PANEL DISCUSSION: “THE SECOND AMENDMENT IN
THE SUPREME COURT”
SENIOR EDITOR, SLATE
CARL T. BOGUS, PROFESSOR OF LAW,
ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW
DAVE KOPEL, RESEARCH DIRECTOR,
JOHN PAYTON, DIRECTOR-COUNSEL AND PRESIDENT,
NAACP LEGAL DEFENSE FUND
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MS. LISA BROWN: My name is Lisa Brown. I am the executive director of the
American Constitution Society, and I want to welcome you to this briefing. We’re
thrilled to be doing this briefing on the Second Amendment in the Supreme Court. And I
know all of you are aware that the court is scheduled to hear next Tuesday oral arguments
in the District of Columbia versus Heller, which raises a question about the
constitutionality of D.C.’s ban on private handgun possession.
And this is the court’s first foray into Second Amendment law in almost 70 years.
And the case has generated tremendous media attention, both because of the multifaceted
legal arguments about the constitutional issues raised in the case, and also because those
constitutional issues have very real world implications for government’s capacity to enact
gun safety regulations. There are no easy answers here, as evidenced by the fact that
there is not only a difference of view between the two sides in this case, but also within
each side, as evidenced by the different positions taken by the Justice Department and
Vice President Cheney on the one hand, and then also differences of opinion within the
progressive academic community on the other side.
So this is, in our view, the perfect topic for an ACS briefing, and I think as many
of you are aware, this panel is really emblematic of what ACS is doing all across the
country. And we are educating lawyers, the media, the public about the critical legal and
policy issues facing our country. And our mission is to ensure that our founding values
of liberty, justice and equality are accorded their rightful central place in American law,
and it is just those values that are at stake in this case.
So we have a terrific panel of experts with us today to shed light on the issues
raised in this case. They will talk both about the historical and policy issues on both
sides, issues that are likely to be of particular interest to the court as it hears oral
argument, and then the implications of particular decisions by the court for gun safety
laws across the country.
And we’re thrilled to have Dahlia Lithwick, who all of you know, as our
moderator today. She’s senior editor and legal correspondent for Slate. I know you all
have read her cogent, sometimes provocative, always thoughtful pieces, and we’re
thrilled to have her moderate this panel, so thanks.
MS. DAHLIA LITHWICK: Thank you. And I want to thank ACS for putting
this panel together and inviting us to be here. This is one heck of a roster here, and I
want to introduce you to them. I’m honored to be sitting next to them. I think their bios
could take the whole 90 minutes, so I’m going to just hit the high points. And they each
have a toe in this pond of the Second Amendment, so they can amplify their role in this
particular case as they go on, but I’ll let you know from my far left to my immediate left.
We’ll start with Carl Bogus, teaches law at Roger Williams University, the author
of Why Lawsuits are Good for America, and has written numerous scholarly and popular
articles including the “Hidden History of the Second Amendment,” which you can pick
up, I think, at the door there; has testified before Congress on the Second Amendment.
Next to him, Dave Kopel, research director at Independence Institute, also an
associate policy analyst at the Cato Institute. He blogs for the Voloch Conspiracy, and
his writings appeared in numerous, numerous places as well, including the Wall Street
Journal, the LA Times, the Washington Post, and many, many law reviews.
And finally, immediately to my left, John Payton, director, counsel and president
of the NAACP Legal Defense Fund. Before that, he was a partner in Wilmer Hale’s
Litigation and Controversy Department and a member of the Government and Regulatory
Litigation Practice Group. He’s also the former corporate counsel of the District of
Columbia and D.C. president, and recognized as one of the foremost litigators in
So welcome to you all. Before I turn it over to the panelists to lay out the lengthy
and complicated history, and sort of linguistic gymnastics that is the Heller case, I just
want to give a brief opening landscape of what the case is about. You can call this
section, things you already know.
The Second Amendment provides, quote, “a well regulated militia being
necessary to the security of a free state, the right of the people to keep and bear arms shall
not be infringed.” There are commas in there that we can fight about later. Another
thing you probably already know is that the D.C. code provides that Section 7.2502.02(a)
generally bars registration of handguns, Section 22.4504(a) prohibits carrying a pistol
without a license, Section 7.2507.02 requires all firearms to be kept unloaded and either
disassembled or trigger-locked. That’s the law.
The plaintiffs in this case, the original group of plaintiffs, sued the district over
that law, claiming they wanted to have handguns at home, or they wanted to have them
for self-defense or they wanted to keep the gun that they were using at work, in one case,
at their home. The federal trial court initially dismissed this case. They granted the
motion to dismiss holding that the right to bear arms applies to service in militias and is it
not an individual right. The D.C. Circuit Court of Appeals reversed that in a two-to-one
opinion. That’s the opinion we’re going to look at today.
Judge Silverman, writing for the majority, essentially held that the Second
Amendment protects an individual right to bear arms, not associated necessarily with use
in militia and needless to say, this created an enormous circuit split. It was the first time
that a Court of Appeals had done something this dramatic, and so, here we are today at
Heller, which will be argued next Tuesday at the Supreme Court. We’ve asked all three
panelists to give brief opening statements, five to seven minutes, to sort of tell us how
they come to this case and what it all means, and then we will ask questions of them
thereafter. So we’re going to start with John Payton.
MR. JOHN PAYTON: Thanks a lot, Dahlia. I think all of us do have our feet in
this, so let me just tell you what my footprints are. There is, I think, a very significant
brief from the Brady Center and an array of chiefs of police and the international chiefs
of police, and I’m the counsel of record on that brief. The organization I now head, the
Legal Defense Fund, also filed an Amicus Brief, and I’m now the Legal Defense Fund,
and I was corporation counsel and some of the laws involved, obviously, I played a role
in dealing with. So those are my footprints. Everybody else can describe theirs.
I want to be a little provocative, and I think to set the stage a little bit differently.
We’re looking at some language that when you read it quickly, as Dahlia just read it out,
you think you know what it means because every one of those words, you know. In fact,
it’s a very obscure phrase in there, and the clause is itself quite obscure, and it’s been
obscure for quite a while. And when you look at it carefully, it will cause you to pause
and say, well, I thought I knew what that meant; now, I’m not so sure.
The world that spawned the Second Amendment is a world that is very different
from this world today, and I want to just sort of paint that picture just a little bit, so we
can look at it that way. We’re now very comfortable with a federal system in which we
think of ourselves as citizens of the United States, and we think of – usually we identify –
as – United States. When we’re out of the country, we’re only the United States. We
think that the federal government is having powers that sort of pervade almost everything
we do. We all are about to file our taxes and we think of the tax obligations that we have.
In 1791, people thought of themselves as citizens of the states, and only
secondarily, sometimes not at all, as also in the United States. We’re used to the
Supreme Court saying that the federal government occupies a field and the states are
preempted from even passing legislation there. That would have been so bizarre a
concept, it would not have made sense to someone in 1791. We’re used to the federal
government saying that the states can’t do certain things, that the states must do certain
things. Both concepts would have been completely antithetical in 1791. So we have a
different frame of reference than these words.
Here are – I’m going to read the words again that Dahlia read out, but I’m going
to read the first words about this in the Constitution first that is what led to the Second
Amendment. Militias are in the Constitution, and in Article One, Section Eight,
Congress has the power to call to – provide for calling forth the militia to execute the
laws of the union, suppress insurrections and repel invasions – that’s Article One, Section
Eight – to provide for organizing, arming, disciplining the militia and for governing such
part of them as may be employed in the service of the United States. Under the
president’s power, he is the head of the militia and can use them as he sees fit for these
So just to start out, to the extent that we have a split between the feds and the
states, it’s clear that the Congress has quite significant power over the militias.
There’s another point, and it comes up in the one case that we’re going to talk
about, Miller, which is the last case to deal with this. As Miller says, the Constitution
says that the states cannot have armies; the federal government can have an army, but the
states can’t have militias, subject to what I just read.
And then, here’s what the Second Amendment says, and it is to clarify something.
So there was some concern about whether or not the Congress could virtually extinguish
the militias by disarming them; that is the power to arm, it’s the power to disarm, the
power to organize, and it’s the power to disband.
So here’s the Second Amendment in that context: a well regulated militia being
necessary to the security of a free state, the right of the people to keep and bear arms shall
not be infringed. That’s to make it clear that whatever Congress does, it’s the states’
militias and the states can maintain the militias.
Now, we’re going to argue about what every one of those words means in there,
but I just want to point out that well regulated, I think, if you just looked at it carefully,
you’d say that obviously is more than just a band of volunteers organizing themselves.
And the phrase “keep and bear arms,” that’s truly an obscure phrase. If you were going
to say, we want an amendment that gives individuals the right to own guns, you would
not write it that way.
So the point of the context is it’s a different world that spawns this. There is a –
I’m going to call it a rural myth, not an urban myth, a rural myth – (laughs) – that is
pervading a lot of the arguments here. The rural myth is that because there was
incredible distrust of tyranny on the part of the government, the Second Amendment was
passed so that armed citizens will be the last bulwark against tyranny of the government.
Now, it is true that there was concern about the effect of a standing army, and I’d
say that concern pervaded everywhere. But the tyranny of the government leading to the
implementation of militias is simply false. And the falsity is from what I just read you.
It’s absolutely plain on its face. Article One, Section Eight says Congress shall have the
power to provide for calling forth the militia to execute the laws of the union, suppress
insurrections, and repel invasions. The whole point of the militia is to, in fact, defend the
state, suppress insurrections, and I’ll stop at the end of this.
But there’s another part of our past that we don’t talk about because it just doesn’t
come up anymore, but it’s a big point. Suppress insurrections; this was not a mythical
worry. Suppress insurrections in the first 70 years, 80 years of the country was about
slave insurrections. And the worry was that, gee, the federal government, the Congress,
wouldn’t have the commitment to deal with the Southern States’ fear, terror of slave
insurrections, and slave insurrections are more than just slaves; it’s free Negroes; it’s
John Brown. It’s people who were abolitionists and militant abolitionists and their fear
was not misplaced. There were slave insurrections, and the militia, defined as white
males, and in the government’s brief, one of the jarring first sentences is he, Paul
Clement, says the militia were white males. The white males were called upon to be
available to help suppress slave insurrections, not something we’re worrying about today.
But I’m just saying that the context in which all of this comes up, why do we have
a Second Amendment? It’s to make it clear that the Congress can extinguish the militias.
Why do we have militias? To in fact, defend the government, and so there is an
obligation to be available to be in a militia, but it’s a well regulated militia there to help
suppress insurrections – and the insurrections that were out there, that in fact were
happening. In South Carolina they were called out. They were called out all across the
South to suppress slave insurrections.
And the final irony, of course, is that when we get to the real joining of the issue
about slavery, in fact, the states don’t rely on their militias; they secede and form armies
to fight the federal government’s army. And that’s the end of the militias. We essentially
don’t have anything that would be described functionally as militia after the Civil War at
In that context, and I think that is the context, I think it is really, really difficult to
see the Second Amendment as doing anything other than saying states may have militias,
so that the federal government cannot extinguish them. There is an obligation to be
available for a militia, and the purpose for the militia, which is to suppress insurrections,
has simply been yanked out of our need and necessity.
MS. LITHWICK: Dave, I think John set you up to have a fight over what every
one of those words mean. (Laughter.) Can we stipulate that there’s a “the” that we can
agree on, and then if you could give your seven-minute opening statement.
MR. DAVE KOPEL: Sure. And actually, the reference to the right of the people,
as the District Circuit Court of Appeals pointed out, refers to a pre-existing right. And
the Brady Brief tries to say, well, that’s something that comes from the Articles of the
Confederation or the seize of arms, neither of which mention rights and they say it
doesn’t come from 1689 English Bill of Rights, which does mention a right to arms.
My brief is presented on behalf of the Independence Institute, a think-tank in
Colorado where I work, and a broad law enforcement coalition, the Maryland State
Fraternal Order of Police on one coast, all the way out to the San Francisco Veteran
Police Officers Organization on the other coast, and on behalf of the Southern States
Police Benevolent Organization, the association of 12 state organization, and perhaps
most notably, on the behalf of the two major police organizations for firearms training in
this country: the International Law Enforcement Educators and Trainers Association and
the International Association of Law Enforcement Firearms Instructors.
We present some practical information about something that’s entirely ignored
almost in the briefs of the D.C. in its amicae, which is how guns save lives, the beneficial
effect of law-abiding firearms ownership in American society for the public at large, for
public safety and especially in this brief, for the police themselves.
According to the Centers for Disease Control study, firearms are defensively used
against burglars, not necessarily with a shot being fired, usually with just the burglar
being scared off because, for example, the sound of a shotgun being racked is a very
distinctive sound, which makes unwanted people often interested in leaving the premises
quickly. They’re used defensively about 600,000 times a year against burglars in the
United States according to the Centers for Disease Control.
According to the National Institute of Justice Studies, only about 13 percent of
American burglaries against homes are what are called hot burglaries, burglaries that take
place when the victims are home. That’s in great contrast to the research we present from
countries like England, where it’s 59 percent of burglaries who are against occupied
residences, because they want – the burglars there know that the alarm system will be off
and that the victims will be home, so they’ll have their wallets and purses and cash that’s
easy to take; similar data from England, from the Netherlands, from Ireland – the
Netherlands, as well as England and Wales. And also a study from the city of Toronto
shows home invasion burglary rates at about 50 percent of the total rate of home
burglaries, very different from the United States where it’s axiomatic in the
criminological textbooks that American burglars try to avoid breaking in when
The reason that they do, according to the studies of burglars that have been done,
for example, the one in Saint Louis, which was the most in-depth study of actual active
burglars on the job, was that American burglars are afraid of getting shot, which is a
reasonable fear for them to have. The data show that an American burglar’s chance of
getting shot is about equal to his chance of going to prison, and if you figure the prison
has some deterrent value, which I think it does, the risk of getting shot is an even more
immediate punishment and it displaces burglaries from occupied residences to places that
are not occupied. And it’s terrible to have your home burglarized in any case, but it’s
much less traumatic and much less dangerous when it doesn’t – when there’s no one else
In fact, we know that of the burglaries that do take place when someone is there, a
fairly large fraction lead to assaults against the victims in the home, and some of them
also lead to rapes. We present the data in this brief showing that if you simply raised the
proportion of American burglaries that take place when the victim is home, without even
changing the total burglary rate, and we raise that to about the Canadian, English, Irish,
Dutch level, you would get a 9 percent increase in assaults – sorry, a much larger increase
in assaults net in the United States. And because we have a lower assault rate derivative
of our lower hot burglary rate, the overall violent crime rate in the United States is 9
percent lower than it would otherwise be.
This is very consistent with studies that have been done by the national under the
– grants from the National Institute of Justice interviewing prisoners in 11 state felony –
felony prisoners in 11 state systems, finding that they personally expressed tremendous
concern about committing a crime against a victim who might be armed, talked about –
how a large proportion said they personally had decided not to commit a crime because
they were afraid the victim might be armed.
This has important benefits, of course, for the people in the home; it has benefits
for society as a whole, because unless you put a little sticker on your window that says
this is a gun-free home, all the people who don’t have guns enjoy free rider benefits from
the roughly half of the American population that does, since the burglars have to avoid
This also helps the police tremendously, because it means they’re – by reducing
the number of emergencies where there’s a burglar in the home when the victims are
there, there are many fewer emergencies to which the police have to respond
immediately. This frees more police resources for crime prevention, for investigation and
for responding to other emergencies.
It’s also important that as – this is a point made very strongly by the law
enforcement training organizations. Citizens who have prior experience with handguns
before they join the police are much more easily trainable to be high quality police
officers in their firearms skills. Yes, there’s only a certain amount of time in a police
academy, and whether that goes on for three months or whatever, a half a year or
whatever the period is, you can’t spend the whole practicing shooting. It’s merely one of
many things you have to learn.
A police officer who has taken an honorary gun safety course, has some practice
with target shooting, perhaps with handgun hunting, already knows a great deal about
handgun safety, how to use a handgun properly, and that kind of officer can, in the police
academy, be taught the more advanced skills, such as engaging multiple targets at once.
And in contrast, when you have a situation, as in the District of Columbia has
created within its own recruiting, where most police officers come in with no skills
having used handguns from their own experience as citizens, and in effect, very little
skills likely with long guns either, you have to spend much more time teaching them the
simple basics, how to get the gun out and bring it up while disengaging the safety as
you’re doing the draw, acquiring that instinct to keep your finger outside the trigger
guard even while you’re drawing the gun and bring it into the ready position.
As Justice Scalia talked about in his book, hypothesizing a differently written
Second Amendment, police officers being necessary to law and order, the right of the
people to carry handguns shall not be infringed. That is the situation we’re in today and
what we’re presenting the court with that the police efficiency is greatly enhanced by
law-abiding citizens having firearms for protection.
We present the data about how often firearms are used in this country for lawful
self-defense and there’s a dispute. The National – and we talk about all 13 studies, which
show a range from about 700,000 up to about 2.5 million. Other studies, the Census
Bureau has studies which we think are flawed, in that they ask the questions in a much
more indirect way, but they even report 97,000 defensive gun uses annually. Whatever
the actual figure is, and the court doesn’t have to decide it, it’s clear that it’s common and
an important benefit to public safety. Disarming law-abiding, good citizens doesn’t help
public safety. It substantially harms public safety.
The author of the Washington, D.C., handgun ban, City Councilman David Clarke
said, quote, when he was asked about the ban on self-defense in the home and the overall
effects on self-defense of his law, “I don’t intend to run this government around the
moment of survival.” In our brief, the Police Associations say that survival is a
constitutional value that should be taken into account and the handgun ban and the ban on
self-defense in the home are contrary to that.
MS. LITHWICK: Thank you, Dave.
John’s now sketched out what the framers were thinking. I think Dave has
sketched out what your average burglar is thinking. (Laughs.)
Carl, you’ve been thinking about this in a scholarly way for a long time. Can you
add a – we’ve had a sort of a historical view, a very pragmatic view. Can you bring a
third view into the conversation?
MR. CARL BOGUS: I don’t know whether there’s a third view. There is a
historical view and there is a prudential view, a pragmatic view. Why don’t I start by
picking up where John Payton left off, because I think that his point is important. And
maybe I can flesh it out a bit more.
Although there are variations on the themes, there are basically two camps on the
Second Amendment. There are those who believe that it provides an individual right or a
private right of individuals to have guns – David is in that camp – and there are those
who believe that it provides only a right to keep and bear arms within the militia, often
known as a collective rights view or a militia-based view.
And one might ask why would the framers provide a right of people to keep and
bear arms within the government-regulated militia, when that – everybody would
concede that the militia can regulate entirely the weapons on part of their members. Why
would they do that? And John Payton’s pointing to slavery is incredibly important. It’s a
complicated story, but let me see if I can do it very briefly, having tried to do it very
briefly before and having failed, but I’ll try once again. (Laughs.)
The founders proposed a constitution in 1787, and John Payton told you what the
militia clauses are in the Constitution. Incidentally, I think it’s incredibly important to
point out that the militia is a defined term. In the main body of the Constitution there’s a
lot of conversation all the time about how the founders envisioned the militia, and
whether our vision is faithful to their vision. And in fact, there was a big debate among
the founders as to whether the militia should be universal and include all white male
adults, or whether it should be select and be a highly trained, smaller, more professional
And Madison favored a universal militia, Hamilton favored a select militia, but
they agree – and they’re both clear about this in the Federalist Papers – that they in
Philadelphia decided that this would be left up as a policy matter to Congress. Congress
would have the power to organize the militia, and that means to organize it however
Congress, from time to time, thinks it ought to be organized. So what the militia was like
in the 18th century doesn’t matter. What does matter is how Congress chooses to
organize it. Today, of course, it’s organized as the National Guard system.
Now, one of the other rights that – or powers that the Constitution had given to
the national government was the right not only to organize the militia, but to arm the
militia, also to provide discipline for the militia. During the ratification debates, when
the anti-federalists were arguing against ratifying the Constitution, one of the most
dramatic events during this episode took place in Richmond, Virginia, in 1788. It was the
Ratifying Convention in Virginia, incredibly dramatic. It looked at that point as if
Virginia did not ratify, there would not be the necessary nine states to ratify it and the
United States would not come into being.
And on one side were the brain of the anti-federalists, George Mason, and the
most eloquent member of the anti-federalists, Patrick Henry, and on the other side, for the
federalists, was basically the man who wrote the Constitution, James Madison – very
dramatic. And the anti-federalists raised many, many arguments against ratification, but
one of them that Mason and Patrick Henry launched was they basically said to Madison –
this was in Virginia, this was in Richmond, Virginia, Eastern Virginia. Majority
population in Eastern Virginia was in the enslaved black population. John Payton is
absolutely right. The white population lived in perpetual fear of slave revolts.
And what Mason, and particularly Patrick Henry, basically said to Madison was
they said, James, in Philadelphia, you deprived the federal government of the power to
abolish slavery. That was part of the slave compromise – very good. But you have given
the national government a mechanism to undermine the slave system indirectly when you
gave Congress the power to arm the militia. That’s exclusive. That means only Congress
can arm the militia.
And the Eastern states – that’s what they called the Northern states, but I’ll call
them the Northern states from now on – they were already abolitionists. They already
hate the slave system, and now you’ve given them the power to disarm our militia. And
our militia is our slave control mechanism. In fact, it was so important to the South that –
there were exceptions, but in the main, in the main, the South refused to commit her
militia to the war against the British for fear of slave revolts.
And Madison said, oh, no, listen, that power is concurrent. If Congress doesn’t
arm the militia, then the states can arm the militia. And normally, Patrick Henry was no
match for James Madison on substantive matters, but this was late in the day and
Madison was tired and – (laughter) – Patrick Henry was a brilliant polemicist and he
ridiculed Madison quite effectively. He said, oh, really? So the power is concurrent? So
when you say that – in the Constitution, you say that Congress has the power to arm the
militia, that means it’s concurrent; Congress could do it, the states could do it. And when
you say that we, the states, have the power to appoint the officers of the militia, I suppose
that’s concurrent. So we could appoint the officers, or Congress could, and he went on
and on about this. Clearly, it was a pretty effective attack on Madison saying, when these
authorities had been doled out, some to the federal government, some to the states, they
So it’s a long story, but I’m going to cut to the chase here. When the following
year Madison went off to the House of Representatives after the anti-federalists had
deprived him of the seat in the Senate, and attempted to extinguish his political career by
getting James Monroe, rising star, the anti-federalist to run against him in the House, and
gerrymandering his district, and arguing to the gerrymandered district, Madison’s been
against the Bill of Rights, has been against the Bill of Rights. That was the principle
argument and Madison changed his view during the election and said, well, I was against
the Bill or Rights before ratification. Now, that it has been ratified, I’m in favor of the
Bill of Rights, and he went off to Congress.
I believe that when he wrote the Second Amendment, he attempted basically to
fix the problem that Henry and George Mason had accused him of creating in the
Constitution, a well regulated militia being necessary to the security of a free state, the
right of the people to keep and bear arms shall not be infringed.
Now, Madison was intent that nothing in the amendments would contradict
anything in the main body of the Constitution. So he wasn’t going to amend Article One,
Section Eight and say that this was concurrent. But the essence of it was that if the
federal government doesn’t provide arms to the militia, then the states could do it or the
people could themselves, and in fact, that’s how the states were arming their militias at
the time. They simply passed laws that said, militia members shall come with their own
musket. And that musket was not treated as an item of private property. There were also
lots of laws about that musket. You couldn’t encumber it, hand it over as collateral for
debt and many other things, because it was a militia weapon.
So I suggest to you that that is really what they were thinking about. When you
walked in here, and if I said, close your eyes and think of an image that goes with the
right to bear arms, many of you would have closed your eyes and pictured the Minutemen
at Lexington and Concord with a musket in their hands, but I suggest to you that because
the realities of the day, what they were really thinking about, particularly Madison and
the Southern states and the Southern members of Congress, was the musket in the hands
of the slave owners.
MS. LITHWICK: Thank you, Carl.
I want to leave time for questions, but I have a couple of the panel, and you may
want to respond to each other a little bit, but this is a great conversation. It’s certainly
one that I had in law school 10 years ago and you all have been thinking about for a long
time, but it’s also interesting that the courts have not had this conversation in a very long
I think one of the things that Lisa mentioned when she opened was we haven’t
talked about this seriously and rigorously in the courts for 69 years. And so I want to ask
an absolutely pragmatic question of the panel, and that is why now? Why, after all this
silence, did the Supreme Court agree to hear this case, and what is the scope of what
they’re going to do? John, do you want to –
MR. PAYTON: Well, I’ll take a crack at it. I think that I believe this is right. I
haven’t gone back and looked, but I think that the opportunities for the court to, in fact,
take such a case have been extremely limited. So it’s not like on their docket every year
there are cases raising Second Amendment issues. That’s just not true. And this is a case
that got a lot of notoriety when it was decided in the D.C. Circuit, so that’s number one.
They don’t have a lot of opportunities.
Number two, I think we have seen an evolving debate and a use of those words in
the Second Amendment for whether they are for purposes that are ahistorical we can have
an argument about it, but there’s certainly now a large group of folks who want to say
that the right of the people to keep and bear arms on its own, with no need for context,
constitutes an individual right that can be asserted against. And that’s a growing body of
folks out there. I don’t want to belittle it. I think it’s wrong, but there’s clearly a growing
body out there that has now resulted in a successful challenge to our gun control
provision in a very high visibility jurisdiction, the District of Columbia.
So I think that’s why there haven’t been a lot of occasions. Some of the dialogue
on this issue has changed quite dramatically, and this may be the first real opportunity for
this to actually result in a case that the court could take, and they took it.
MS. LITHWICK: Does anyone want to answer that?
MR. BOGUS: I’ll offer a cynical explanation. The gun lobby, particularly the
NRA, but other gun right rights groups, have never wanted this issue to be decided. And
therefore, although for decades they have whipped up their constituents by saying the
right to keep and bear arms is under great threat, it’s under great threat. You must
support us to defend those rights. We’ll defend them everywhere, we’ll defend them in
Congress, we’ll defend them in the courts. They’ve never wanted the issue to be decided
because should they, God forbid, win, they lose an enormous tool for acquiring members
And so one case after another, there were perhaps over decades opportunities for
them to take a case to the court, but they always thought that this case isn’t the right case,
they argued to their members. Really, they never wanted to take a case to the court.
What happened this time is this case, the engineers and the orchestra leaders of
this case are not gun rights enthusiast. They’re radical libertarians, hostile to government
regulation of all kinds. And they don’t care if the NRA loses its ability to be a large,
wealthy organization. They wish to have the court codify, put its stamp on an
insurrectionist view of the Second Amendment, a view of the amendment that says the
Second Amendment is the ultimate check on governmental tyranny. Should the
government become tyrannical, the people may be armed to go to war with their own
government; not go to war with some foreign government like Britain in 1776, go to war
with their own government.
Now, I suggest to you that except for radical libertarians, the idea that the
Constitution should give the people the right to develop weapons to go to war with their
own government is anathema to all ideas of constitutional democracy, but for radical
libertarians, it has a romantic feel about it. And it is – that’s why this case is being
pushed by somebody different for a different agenda, and that’s why it’s here.
MS. LITHWICK: Dave, do you want to respond? (Laughter.)
MR. KOPEL: Sure. I guess when I go out and go around looking for radical
libertarians, the Maryland State Fraternal Order of Police isn’t the first place I’d go
looking, nor do I show up at the California District Attorneys' Association Convention,
where we have 29 California district attorneys, including some from very major
jurisdictions such as Fresno, signing on to this brief. They didn’t sign on to some kooky
theory. They signed on to what the Second Amendment means in practice today.
Carl’s explanation about the NRA – he can have all his theories he wants, but the
fact is, and you can look it up, NRA attorneys such as Stephen Halbrook – he’s not
employed, but does many cases with them, have petitioned the U.S. Supreme Court for
cert. in particular cases, including challenges to some of California’s prohibitions on
particular guns there. Those Cert. petitioned were denied.
There are – I can think of probably at least three off the top of my head where
Stephen Halbrook, who’s won the three cases he’s gotten into with the cert. petition in
front of the U.S. Supreme Court, Halbrook petitioned for a second – for a case that would
have been a good vehicle for a Second Amendment determination by the court and the
court turned it down.
Now this case, unlike those ones, involves a lower court having found a law to be
unconstitutional, and of course, that greatly raises the chances for certiorari being
granted. And in this case, both sides wanted certiorari granted, so that also makes it a
more attractive case.
I’ll stop there, except to say that the idea of the proponents of this case are
opposed to all regulation of guns is just preposterous. In this case, again, the Police
Coalition, the District Attorneys' Coalition, I’m supporting, writing the brief for, endorses
strict scrutiny as the proper standard for analyzing various restrictions on the right to
arms, and also explains that there are many reasonable gun laws, such as the National
Instant Check System, which will pass that and the petitioners in this case don’t say, you
can’t have any gun laws. What they say is laws about licensing, registration, those kinds
of things, if they’re reasonably applied, are fine.
What is not fine is what D.C. has, which is not tyranny with like an evil guy with
a mustache and jackboots, but practical tyranny as applied in your own home, where you
can’t have a handgun in your home for self-defense, and you can’t use any long gun in
your home for self-defense. It is tyrannical, especially in a jurisdiction with a notoriously
incompetent police administration, as D.C. has had for so many decades, that doesn’t
protect people to say we’re going to forbid you to have your own gun in your own home,
registered, licensed, go through all the paperwork and you still can’t use that gun for
protection against a home invader. That’s micro-tyranny.
MR. PAYTON: Look, I just have to say that the idea that there is anything that
would make the use of the word tyranny appropriate for a provision that says that you
may not have a handgun, I just find that that’s a bizarre use of the word tyranny. It
makes tyranny have no meaning at all.
Now, the point about, gee, your clients make arguments on the merits about the
relative benefits of gun ownership or not. I think those are arguments that ought to be
made to legislatures. And the default here – if the position – if this case were not there,
would be we’d have the set of the laws that we have now and it’s not that everybody
would not be able to have a gun. It would be that legislatures would be able to make
decisions about what you can or can’t do. The Congress can make decisions about what
you can or can’t do and we’d have the panoply of laws that we have now.
So this is about can, in fact, legislatures make decisions in their best judgment,
taking your information into account about what’s best for the people they have
responsibility for. That’s actually what the court’s going to decide, as opposed to they
cannot make a decision about that because the Second Amendment means they can’t
make a decision about that because, in all circumstances, it’s tyranny if they say you
can’t have a gun in your house.
MR. KOPEL: How about the ban on self-defense in the home? Do you consider
that tyrannical to say you can’t use a long gun –
MR. PAYTON: This could not be tyrannical. I don’t know what you’re saying
the word “tyrannical” means.
MR. KOPEL: Okay, okay.
MR. PAYTON: If the – if you say going into a federal building, one where I
would say everybody agrees you can’t take a gun into a federal building, you don’t like
the government. Does that mean that was tyrannical to say you couldn’t take your gun
into a federal building?
MR. KOPEL: No, no, no, in your own home, when someone’s breaking into your
own home –
MR. PAYTON: But the reason it's not tyrannical is what?
MS. LITHWICK: Let’s – it’s a good discussion – (laughter) – but I can see
where it’s going to go, and – (laughter) – and I want to ask one more very inside baseball
question and then I want to open it up because there’s so much to cover. And the inside
baseball question I want to ask is what happened in the Bush administration in the case?
How is it that we have one brief on one side and one brief on another side and Cheney
doing his own thing? This is a very curious set of facts we have here and I just – I think
certainly, I, as a journalist, found it sort of fascinating and I wondered if anyone had any
insight that they wanted to –
MR. KOPEL: Did you have a chance to see this morning’s Washington Post?
MS. LITHWICK: No.
MR. PAYTON: It was really something.
MR. KOPEL: Yes, Robert Novak has the answer to that –
MR. PAYTON: Well, he can answer to that. (Laughter.)
MS. LITHWICK: What – can you summarize for – am I the only one who didn’t
see this morning’s Washington Post? Okay, I’m the only one. I’ll go home and read.
MR. PAYTON: Novak says that, in fact, because this is the eighth year of a
weakened president, that no one was paying attention to what the solicitor general was
doing. There's a new return to – (unintelligible) – and Paul Clement filed something that,
in fact, it now turns out the president is dead against, and that the president, with full
knowledge, actually said it was okay for Cheney to file something that is inconsistent
with what the solicitor general filed. And in his most provocative statement in his
column today, he says that there is a chance that at the argument the solicitor general will
change his position. Is that about it?
MR. KOPEL: Perfect. (Laughter.)
MS. LITHWICK: All right then.
MR. PAYTON: Not going to touch it. (Laughter.)
MS. LITHWICK: Someone tell the sports books in Vegas. We’ve got some
odds. I’m going to open it up now for questions because other people read the
Washington Post today. Go ahead.
Q: How would you describe the current state of the scholarly debate on this
question? Is there a majority of scholarly views and has the scholarly view changed over
MR. BOGUS: Let me try to answer that. If there had been a time – if there had
been an issue that had been considered settled at one point in time, this was it, so that
from the time that law reviews were first indexed in 1897 until 1960, every single article
endorsed the collective rights view, all of them. And there were three Supreme Court
cases, and they are generally – I’m sure my good friend, David, will dispute this, and
there is some vagueness in all of them, but they were considered to be collective rights,
particularly U.S. v. Miller, 1939, a collective rights case endorsing it. Then it became a
bit of a sleepy issue.
I’m a law professor. For law professors, there is no mileage, no panache in
writing law review articles that says the Supreme Court’s got it right; the Supreme
Court’s always had it right. The law is right. The law is just right, the way it ought to be.
So that was one factor.
The other factor was there was a concerted, deliberate, sustained campaign by the
NRA and others to generate a lot of writing, endorsing an individual rights position. I’ve
written an article called “The History and Politics of Second Amendment Scholarship,”
and I talk about this. And the NRA made grants to – many of the first articles, by the
way, were the written by actually NRA employed staff attorneys, although they didn’t
always identify themselves in the author’s footnote that way. And then there were other
people, like Stephen Halbrook, when he was no longer employed by the NRA –
MR. KOPEL: Stephen Halbrook was never an employee of the NRA. He’s been
a lawyer who’s done many NRA cases. He’s never been employee of them.
Mr. PAYTON. Time out.
MR. BOGUS: All right. But he received, in a two-year period, I think, $38,000
in NRA transfers.
MR. PAYTON: Time out. (Laughter)
MR. BOGUS: I think – I don’t see why there’s time out about this. I think that
these are the facts and this is significant. So this generated an awful lot of writing. There
were a lot of articles. This led to many other scholars taking an interest in this and
writing about it. And then there was a lot of counting up by the individual rights people
of articles and they, in recent years, came ahead for a period of time, although when you
start counting up your articles, it’s interesting. I think the last time I counted them up,
which was about eight or nine years ago, 23 of them had been written by just Stephen
Halbrook and Don Kates alone.
But I would say that there are a lot of articles on both sides. And the – one of the
things that’s the most significant is that we’ve now had a number of prominent liberal
law professors say, well, I’m not a gun rights enthusiasts. I’m a card-carrying member of
the ACLU, but I now think that that’s an individual right. So Sandy Levinson has said
that in "the Embarrassing Second Amendment," although he’s backed off of it in
significant part in his most recent op-ed in the National Law Journal, Larry Tribe, Akhil
MR. KOPEL: Bill Van Alstyne.
MR. BOGUS: Bill Van Alstyne, and maybe, to some extent, Erwin Chemerinsky
and others. So I hope this answered to your question.
MR. KOPEL: Let me follow up on that a little bit. In the 19 th century – my book
– my BYU article, “The Second Amendment in the Nineteenth Century,” surveys all
known scholarship and case law that’s been found about what American legal scholars
said about the Second Amendment. In that entire period, there is zero support for what
Carl describes as the collective right. And in fact, even the District of Columbia no
longer is defending this so-called collective right, which is as though the Second
Amendment is like collective property in a communist country. It supposedly belongs to
all the people. But it inures – and here is only in the government itself, an odd kind of
thing to put in the Bill of Rights.
The collective right position is articulated in a concurring opinion in State v.
Buzzard, one Arkansas case in 1842 and thereafter, disappears for the rest of the 19th
century. And that was its only appearance ever. It reappears in force in a 1905 opinion
by the Kansas Supreme Court’s Salina v. Blakely.
All the scholarship of the 19 th century started with St. George Tucker’s American
edition of Blackstone, the major constitutional treatise during the early republic. And St.
George Tucker was enormously prestigious. He was appointed a federal district judge by
Madison. His was the textbook you would study if you were American learning to
become a lawyer. He describes the Second Amendment as a broad individual right for
many purposes, including personal defense and the right to hunt.
And that goes on with William Rawley’s treatise, which comes after that, Joseph
Story, enormously important, not only for his role in the Supreme Court, but his role in
the creation of Harvard Law School as a great national institution. His treatises treat the
Second Amendment as a meaningful individual right, and not some kind of collective
right, or a right only of someone who’s actually serving in a militia not to have his gun
taken away while he’s in the militia. The non-individual interpretation is a creative
artifact of the 20th century anti-gun movement.
MS. LITHWICK: Okay. Next question.
Q: The – I thought the most interesting brief was Professor Chemerinsky’s,
which essentially assumes the court will find an individual right, and turned the attention
to the standard of review. If you could, for a second, take off your polemical hats, put on
your analytical hats, and say whether you agree with the most likely outcome is that the
court will find individual right in the real fights over the standard of review.
MR. BOGUS: I think that that is the most likely outcome. I think it’s an
incoherent and dangerous outcome, but I think it’s the most likely, and here’s why I think
it’s incoherent and dangerous. If the Second Amendment is the final check on
governmental tyranny, and understand that this an argument that Heller advances and the
plaintiff, and an argument that is taken up by the D.C. Circuit, that one of the reasons for
this is protection against governmental tyranny.
If the Second Amendment is all about the people being armed in the contingency
that the federal government becomes tyrannical and they need to go to war with the
federal government, then that right applies with greater force to the weaponry you would
need to take on the U.S. military. It protects machine guns and rocket-propelled grenades
and WMDs with greater force than a bolt-action 22. The whole idea then of what is
reasonable regulation stands on its head.
MS. LITHWICK: Does anyone else –
MR. PAYTON: Sure, look, I think we don’t really know how it’s going to come
out, but let’s assume that there are five justices who find some form of individual right. I
think the first question is whether or not they would find it in the middle of what we’re
calling an insurrectionist theory, and actually, I’m not convinced they would do that.
I think that the reason they may end up there is to not want to read something in
the Constitution that has some currency as having no effect at all. So if they – I think it
should have no effect, but if they look at it and say, “We don’t want to say the Second
Amendment means absolutely nothing anymore and actually it’s by passage of time now
a completely defunct section,” so if they say, “What is the animating principle,” I don’t
think they’re going to say insurrectionist. I just think there’s no real currency for that.
And so they’ll have to come up with some other animating principle about what it
is, and that would lead to some deference in the standard of review that would then apply.
So we may not get five justices that would agree on exactly what the standard is. It’s not
clear we would get five people who agreed on one thing there, so we may get a split
confusion verdict or judgment that would say it is either some heightened scrutiny. The
United States says it’s some heightened intermediate scrutiny. It could be strict scrutiny.
It could be what you would say would be the normal scrutiny of governmental
regulations or laws dealing with guns. So we don’t know the answer to that, but if we get
there, I think we will have not one definitive answer, but probably ongoing litigation
about how this standard works.
There’s another issue here that would come up. And the irony is that I think
historically, I don’t think there’s going to be a dispute about why we have the Second
Amendment, and it was about dealing with what, without the Second Amendment, would
have been some plenary power on the part of the federal government in this area. So the
Second Amendment is to correct that. And the irony is, of course, that the federal
government has been at least as active as some of the states in regulating gun ownership,
and what would be the standard of review that would apply to efforts by the federal
government to deal with guns.
Whatever the result of that is, whatever the standard of review is, however it is
articulated, I don’t think we’re going to see a decision that says there are no
governmental powers to regulate guns, other weapons, ordinance. We’re in a new world
where we have really scary weapons out there and they’re all over the place. And the
idea that they’re going to just say, “Hands off, if you can buy an F-16, good for you.”
That’s just not going to happen.
So there is much more that will have to go into what would be covered. What is
the federal government’s role here? Is it going to be judged by the same standard of
review as the states?
And the final point, I guess, is that one of the consequences of us becoming an
incredibly urban country now, one that would not have been – what were considered
cities in 1787, we would consider towns, okay, today. So we’re now an incredibly urban
country, where people travel a lot. They don’t know the people that live next door. In
fact, they don’t go next door to find out who it is that’s been there for the last seven
years. They don’t know the people across the street. We have a lot of strangers that live
together, crowded together. People move around a lot. And there are special concerns in
cities, and that’s where you see a lot of the focus of gun regulation because of what
happens through a proliferation of guns.
One of the worries about people having guns in their homes is that, in fact,
burglars get the guns and shoot the people who own the guns, that kids get the guns.
People steal the guns. So there are concerns by different levels of governmental entities
in the country, at the federal level, at the state level, at the local level, and it changes from
rural to urban. In urban areas, there are different concerns. In rural areas, there are
different concerns. And right now, we have different set of laws that apply to all that.
And how the court then decides on how all of those different things will be
scrutinized, I don’t think we know the answer, even if you assume what Chemerinsky
says is the likely predicate, which is we’re moving on to question two, which is what
would be the level of scrutiny if we’re past the predicate point?
MS. LITHWICK: Dave, do you want to –
MR. KOPEL: Yes, I think John’s probably closer – is much closer to the likely
outcome than Carl’s theory. I think one of the things we can say with great confidence is
that a Supreme Court led by Chief Justice Roberts is not going to give us an opinion
which says people have a right to rocket-propelled grenade launchers, F-16s and weapons
of mass destruction.
And in fact, that approach would not be consistent with the original Second
Amendment. All the arms that the founders knew as the type of arms in the Second
Amendment that a person would actually own and carry or keep and bear were things
where they can only be aimed at a particular person. You’ve had guns that fired one shot
every time you pulled the trigger, multi-shot guns, which could be fired repeatedly
without being reloaded, but still had to have one trigger, one shot, one bullet, each time
you pulled the trigger, were in development or actually existed for decades before that,
although not as perfected as they later were. But these mass effect things, nerve gas,
saran, things like that, didn’t exist and they are not within the class of arms, in part
because they cannot be aimed at an individual in a responsible way, the way an ordinary
firearm or, for that matter, a sword can be.
I think the court is unlikely to go for the Chemerinsky-Winkler approach, which is
essentially to say, “Oh, yes, it is an individual right, but we will treat it as if it didn’t –
wasn’t ever written because your right to have a gun is going to be subject to the same
level of scrutiny as your right to own the feather of an endangered bird or some other
property, which is not in the Constitution.” I think the court will have a standard of
scrutiny that at least recognizes that guns, like books, like churches, are among the things
which are enumerated in the Constitution as being particularly important for the long-
term survival of a free state for proper –
MR. PAYTON: Guns, books, and churches, I’m going to remember that.
(Laughter.) Guns, books, and churches, okay. (Laughter.)
MR. KOPEL: Yes, that’s right. And one point, this whole thing about the
Second Amendment being to help the states control the militia, it was – amendments
were proposed to do exactly that; they were rejected. And you can look, there’s a whole
history of litigation over the state versus federal boundaries on militia control, including
the 1820 U.S. Supreme Court case of Houston v. Moore. This was a big issue. There’s
lots of cases on it. The Second Amendment was never part of that jurisprudence. It’s
only in the minds of the modern gun prohibition lobby that the Second Amendment has
some relevance to the issue of state federal controls over the militia. It’s never been
important to the courts in resolving those issues.
MR. BOGUS: Dahlia, I just have to clear something up before we go on. I’m not
suggesting that the Supreme Court is going to say that people have a right to have nuclear
bombs and Sherman tanks. Of course, that’s unthinkable. Of course, that’s unthinkable.
What I’m suggesting is that because it’s unthinkable, it’s untenable, that the argument
that the Second Amendment grants an individual right for – as an ultimate check on
tyranny is also unthinkable.
And the argument that the Second Amendment is all about self-defense also
makes no sense on several levels. First of all, in 1789, nobody was threatening rights of
self-defense. They belong to the states. They’re part of common law. The founders
would have thought no more about codifying a right of self-defense in the federal
Constitution than they would have thought about codifying a right for mothers to nurse
babies in the Constitution. It just wasn’t under threat.
Second, it does not make sense to read the Second Amendment, in essence, as
follows: a well-regulated militia being necessary to the security of a free state. People
may have guns for self-defense.
MS. LITHWICK: Okay. Go ahead.
Q: Yes, Mr. Kopel, in your opening remarks, you made a comparison of Britain
and the United States and you talked about public safety. And I think you were
suggesting that the prevalence of firearm ownership in the U.S. has enhanced public
safety here and limited people’s ability to defend themselves in Britain. I think that
argument ignores entirely the negative consequences of gun ownership in the United
States. For example, if you look at levels of homicide, we have a level of homicide here
in the U.S. exponentially greater than Britain, 13,000 gun homicides here in 2005, 50
there. And in the same year, the FBI reports only 148 justifiable homicides. So I would
start out making that point.
You also talked about how you feel –
MR. KOPEL: Can I ask who you represent and did your news organization
contribute to the amicus brief on the other side because you're doing a good presentation
of their point of view.
Q: I’d be happy to. My name is Ladd Everitt, I’m the Director of
Communications with the Coalition to Stop Handgun Violence – and we did file a brief
in the case, yes.
MR. KOPEL: It was a very well written brief. I enjoyed reading it. (Laughter.)
Q: I can’t take credit, but I’m sure my boss would be happy to hear it. And then,
on another comment that you made, that police would be – or police, in general, are
happy to see guns in the home as those can deter burglars. I did a ride-along this past
Friday night with a D.C. police officer. And on that one night, we had two domestic
abuse calls. We had one call that involved neglect of a child with possible sexual abuse.
What I’m getting at is we had many calls that night where a gun in the home would have
been a very bad thing that could have only harmed those in the home and would have
been essentially like throwing fuel on the fire. So I’d like to get your comment on that.
And then, one final point, you talked about – I can’t remember your quote, but
something like the historical incompetence of the D.C. police. I can tell you that on that
night, I rode with an officer who probably in one night of work worked harder and did
tougher work than I’ve done probably in the past two years, and I was very proud going
home that night to be contributing my tax dollars to the D.C. police.
MS. LITHWICK: Okay. Answer the first two parts – (laughter).
MR. KOPEL: There are many competent police officers, and if you read, there’s
a brief by the Buckeye Farms Coalition that goes into the D.C. police in great detail. And
there’s a significant fraction of them who are very hard working and capable, but another
very large fraction who are not, and there’s been tremendous management problems
And the fact is, the odds of getting some – getting a fast enough police response,
even in the most efficient jurisdictions, the best run jurisdictions, they’re not going to be
there in time. If you would present the data here that shows what’s the police response
time for 911 calls? It’s several minutes. It may be six minutes in one jurisdiction; it may
be 10 and a half in another. Priority one calls are defined as life-threatening emergencies
and other high priority emergencies. That’s how long it takes the police on average to get
there once you’ve made the call, hypothesize you could even get to a phone. By the time
the police arrive in six or 10 minutes, the victims may be dead. David Clark (sp) doesn’t
want to run the government around the moment of survival. We suggest that the
Constitution includes the right to defend your own life.
Your point about domestic violence is – has a great deal of validity and this is a –
this domestic violence thing is cited incessantly in the briefs of various of D.C.’s amicae
and D.C.’s own main brief. There is no doubt that a gun in the hands of a domestic
abuser drastically raises the chance that the victim will end up dead. We talk about that
in our police brief. Federal law prohibits domestic abusers from having guns. We say
that’s constitutional. I know there’re some commerce clause issues on that, but in terms
of just as the Second Amendment straight on, it’s not a violation to the Second
Amendment to say a convicted domestic abuser can’t have a gun. And there are laws like
this that have been upheld in states all over the country, which have strong right to arms
in their own state constitutions.
What this misses is that victims have a right to have a gun for protection. And
despite what the American Bar Association brief and some others say, the studies don’t
show that a victim having the gun raises the chance of the victim being killed. They
don’t show that it’s harmful at all for the victim, and ignore, as the studies have shown,
the victim – is the takeaway right of people trying to defend themselves and having the
gun taken away. That is an urban legend too. It happens in less than – at most, 1 percent
of defensive gun use cases.
So of course, good laws and I think the laws that the Supreme Court is going to
allow, no matter what the standard of review, are going to say, “You can take guns away
from domestic abusers and other people who shouldn’t have guns, but you can’t disarm
MR. PAYTON: Look, the interest of the Legal Defense Find are asserted in the
brief, as we care about things that disproportionately affect African Americans and other
minorities. And our inner cities, our urban areas, are disproportionately where
tremendous numbers of African Americans live. They are very disproportionately the
victims of gun violence. I don’t think there’s any question about that. And the reason we
think that gun control is a good thing is that we believe it will have the result, and has the
result, of lessening those numbers of victims and violence that in fact, preys upon African
Americans in those circumstances. That’s why we are filing a brief in this case – why we
filed a brief in this case.
If you just make the – we care more than you are allowing for what happens at the
end of the day. We may disagree about how we get there, but I think all of us care about
what happens at the end of the day. The points you’ve made have been heard by a lot of
cities and states and they’ve heard arguments on the other side and they have down
experiences and they’ve come to the judgments they’ve come to.
And the question for the court is, is their judgment going to be allowed to go
forward? At the end of the day, I think that everyone in Britain would agree that if they
had the number of guns that we have, their number of victims of gun violence would go
up. I don’t think there’s any question about that, that Britain has very low – they don’t
have guns. And they don’t have a lot of gun violence. And if you change the equation,
and you say, let’s just swap out the prevalence of guns in a U.S. city for the prevalence of
guns in London, what do you think would happen? You know what would happen.
So I do listen to what some police officers say, but the Brady Center brief is on
behalf of a tremendous array of chiefs of police internationally and domestically, and a
tremendous array of law enforcement officers in the United States. So there is a debate
about what is the best measure, and I think opposition is that debate ought to be in front
of a legislature.
MR. KOPEL: Just a very quick follow-up. We do have an actual way to look at
perhaps – at Britain, as in 1905, in Great Britain, they had less – they had a gun control
system which would make modern day Montana look like the epitome of a hyper-
bureaucratization. They had essentially no gun controls and a vastly lower gun crime and
other violent crime rate than they do today. But on your broader point about cities and
the right to experiment, I think if we were in a country which –
MR. PAYTON: They didn’t have the gun ownership then was the point.
MR. KOPEL: Well the –
MR. PAYTON: They didn’t have the gun ownership. That’s the point.
MR. KOPEL: The – if there were 40 cities and there’s 40 cities and six states in
this country that had handgun bans, I don’t think the court, as a practical matter, would
use the Second Amendment to invalidate that, even if they entirely believed, and were
persuaded by arguments, that it’s about the historical meaning of the Second Amendment
being inconsistent with the handgun ban.
The fact is what they’re presented with is an enormous number of jurisdictions
which have agreed with a position, by the way, articulated by the NAACP in its lawsuit –
opening remarks in its lawsuit where they were suing various gun manufacturers, which
is the Second Amendment is an important individual right. The NAACP has always
defended that, as in the Ossian Sweet case, where you had a black man in Michigan who
was attacked by a mob in his home and used a handgun to protect his home and the
NAACP came to his defense when he was persecuted for that.
Lots of jurisdictions have gun control, but only Washington D.C., Chicago, and a
few Chicago suburbs have handgun prohibition. And even those Chicago – those five
jurisdictions in Illinois, even they don’t prohibit the use of a long gun in the home for
self-defense. And so this gets us to a case that’s like Romer v. Evans, where there was an
extreme law the court thought or Griswold v. Connecticut, where again, it was the only
law in the country like that. This is – the D.C. law is the freakish edge of gun control,
where it goes from gun control into gun prohibition. I’d agree with you that cities are
going to be left with great discretion about gun controls after this case is decided. It’s
only gun prohibition that is going to be affected by this case.
MS. LITHWICK: I’m going to take one more question and I’m going to take it
Q: Why – this is going back to the Supreme Court, if someone wanted to make a
prediction. I’m not familiar with how the justices actually break down. You’re talking
about there might be five who go for an individual right interpretation and the others
might not, but there are a couple of justices who have really strong sort of original intense
focus on the way they make decisions. Can you talk a little bit about who’s going to
swing which way maybe and how their belief in the original intent may change or
surprise us in some significant way in this case?
MR. PAYTON: Yes, I think the reason you’ll see arguments all over the place on
the history is that the original intent requires you to figure out what the context of it was.
That’s why I did that. And so it’s hard to just extract it out and say here’s what the
original intent was, when you see what the context is because it changes it. And the
proof of that is, in most of the briefs about the history, there is some reference of what
happened when the 14 th Amendment was being debated after the Civil War because there
is some reference in some of those debates about would the freedmen be considered part
of the people that are part of the militias, and the militia – if you didn’t know this, it's a
little bit more than you may have wanted to know – but there was an obligation on people
who were able to be part of the militia.
It’s a part of the political rights of the United States. So among the political rights
was to be available to serve the militia. That is, the militia’s not everybody. It’s actually
from everybody, but that everybody is white males over 21. And that’s who the voters
were, white males over 21. And that’s who the jurors were, white males over 21. So
there’s an argument about, gee, that changed because of some arguments back and forth
after the Civil War.
My point here is that it becomes very slippery when you say original intent and
then you say somehow it’s relevant to look at a debate that did not result in a change in
the words after the Civil War. So it’s very hard to know how that goes, as opposed to
people who have strong libertarian bents on the court, which is different from original
intent, and that is also animating some members of the court. I’m not going to predict
who’s where because we have no track record on any of this.
The point of five is, if you don’t get five, it doesn’t change it, so there’s got to be
five. And they don’t have to agree on the predicate or the implementation. They can
agree on a result. They could agree that, as the solicitor general says, send the case back
to the D.C. courts. They could agree on that, okay? And then you wouldn’t have really
known what was going to happen because it’s probably going to come back up. So I
don’t think it’s very easy to do that. All of us have sort of done it in private, but with –
we’re just kind of making it up here. There’s no track record here at all.
MR. KOPEL: My guess – there are two justices who are very self-proclaimed as
originalists, Justice Thomas and Justice Scalia. And from what – both of them, they are
fairly comfortable looking at the original meaning and then if that’s clear enough, and the
text is clear enough, and I think for – they can stop there. For them, this is an easy case,
as based on other things they’ve written about the Second Amendment.
The other seven, I think the things about the 14 th Amendment are not the point
that it – of course, what happened in 1867 changes what happened in 1791, but it’s about
the continuing evolution of our Constitution. Some people call it Living Constitution
theory. The 14th Amendment congresses, as well as the ones that shortly before that
enacted the reconstruction acts, the Freedmen’s Bureau Bill, they’re – the way they
discuss the Second Amendment is in a way that’s very recognizable to us today.
What they’re talking about, as Akhil Amar explains in his book and in his articles,
is you ask a guy in 1791, “Show me a guy – show me the Second Amendment in action.”
And Carl will tell you it's somebody hunting down a slave. The more civic virtuous side
would say there’s a militiaman in Concord and he says, “I defend my community from
tyranny coming from afar.”
You ask that same question in 1867, give me – show me a picture of the Second
Amendment. They’re showing a freedman in his cabin driving away the klansmen who
were trying to attack him. It’s a – there we have the Second Amendment expressed in the
home-defense view as being the primary purpose, again, about restoring civic order,
which I agree the Second Amendment is very much about, is promoting social order.
And one of the ways to promote social order is the freedmen being able to protect
themselves from these terrorists who were sometimes tacitly sanctioned by lawless local
MR. PAYTON: I used up a good 30 seconds here. Wait a minute. Hold on.
What happened after the Civil War, the South enacted what are called Black Codes, and
believe it or not, the Black Codes said that freedmen could not own guns. So the debate
in 1867 is to try to deal with the Black Codes that said, “It’s okay for everyone to have
guns, except for the people that are being shot by the white people,” okay. So it wasn’t
anything about who are the militias. It didn’t say the black people become militias. It
was to try to correct an imbalance in how that went.
And I’ve another – just a point of information here. When you talked about the
NAACP, I represent the NAACP Legal Defense Fund, which is a separate entity from the
NAACP. And I believe the cases you were referring to were cases that arose much more
in the context of where white people were allowed to have guns and it was unclear or it
was clear that black people couldn’t, and that was an outrage and the NAACP said things
about that. And we have a series of cases across time where, in fact, black people felt
some need to have guns to defend themselves against white people who were attacking
them. That’s what happened in 1865. That’s what happened in 1867. That’s what that
debate was about.
MS. LITHWICK: Dave, 30 seconds, if you can do it in 30 seconds.
MR. KOPEL: I think the number of votes for a – to recognize the Second
Amendment is a meaningful individual right, not limited to people only on duty in a
militia, will probably – will be six or more in the Supreme Court, but I’d also agree with
John that there’s a multiplicity of things that could come on top of that in terms of the
standard of review or whether they remand.
MS. LITHWICK: And Carl, do you – you’ve been quiet for a while. If you want
to say something concluding, as long as you promise not to use the word tyranny,
because that makes everybody here – (laughter) – so if you want to say something to
close it up.
MR. BOGUS: I think it’s worth closing on – with this piece of information. So
the D.C. gun ban was enacted in 1976, and when researchers compared the nine year
period before it went into effect with the nine year period after it went into effect, and
compared what happened in D.C. with the adjacent areas in Maryland and Virginia, they
concluded, writing in the New England Journal of Medicine, that the D.C. gun ban had
reduced gun-related homicides 25 percent and suicides 23 percent in the District of
Columbia. That what's at stake.
MS. LITHWICK: I want to thank you all for joining us today and hope to see you
on Tuesday at Heller. Thank you.