Transcripts For CSPAN Dartmouth College Gun Rights Debate 20240714

Degree from rice university, a masters from cambridge and a jd from yell. Yale. Joe stepped the breathing for the Landmark Supreme Court versus halloran 2008. The district of columbia firearms control regulation act of 1975 required other things that all firearms be kept quote unloaded and disassembled or bound by a trigger lock. It also restricted residents from owning handguns except those registered prior to the enactment of the law. In a five to four decision, the Supreme Court said that the Second Amendment protects an individuals right to possess a firearm unconnected with service in a militia. And to use that arm for traditionally normal purposes such as selfdefense within a home. Unfortunately, joseph was on the wrong side of that decision. Our second speaker is aaron murphy. He is a partner and litigator with the washington, d. C. Law Firm Kirkland and ellis. She earned a ba degree from northwestern and a jd degree magna team magna colada from georgetown. She has clerked for chief Justice John Roberts and argued for cases before the spring court. Case, first Supreme Court mccutcheon versus fec, the campaignfinance case brought by the Republican National committee challenging individual campaignfinance limits, she one. She is also argued several cases before the federal Appeals Court challengedin one she sunnyvale california and the Second Amendment challenge. U. S. Is case the ninth Circuit Court of appeals upheld sunnyvales law restricting the highcapacity gun magazines. Arguments of groups such as the National Rifle association which contended the restrictions are unconstitutional and undermined the owners right to protect their homes, as was established in the 2008 heller versus d. C. Case. Been usurped now from California Law but it still has not been fully decided. Our moderator today is john garvey. Professor at the Franklin Pierce school of law at the university of New Hampshire. He earned an a. B. From harvard and a jd from suffolk university. He is also a mediator and arbitrator and was selected by his peer as mediator of the year in 2014 and 2017. John is the founding director of the acclaimed Daniel Webster scholar honors program. A collaboration between the unh school of law, new have to super court and the New Hampshire bar association. Students are accepted into this Program Prior to their second year of law and discover firsthand what it takes to succeed in todays legal marketplace. They hone their skills in both simulated and real settings, counseling clients, working with practicing lawyers, taking depositions, appearing before judges et cetera. Students pass a variant of the New Hampshire bar exam during their last two years, and are sworn into New Hampshire bar the day before graduation. So let me ask that our speakers and moderator come on stage. [applause] good morning. This so nice to see all of you here for this debate. Mr. Garvey as you know we have two very distinguished lawyers who participate at the highest levels interpreting the Second Amendment. They both recently filed briefs as you heard with the Supreme Court in a case that raises this very topic. Today they are going to debate the issue of how courts should go about interpreting the Second Amendment with respect to the individual right to keep and bear arms. A right which was confirmed by the Supreme Court as recently as 2008 this will be a constitutional debate. Rather than a Public Policy debate. The socalled gun debate, has become become sub prominent in the United States that many people probably assume the issue has been raging since the birth of our nation. In fact, until the 1960s, the Second Amendment was barely discussed in the courts at all. So, let me give you a brief overview to set the tone for what they are going to be speaking about today. Seale and0s, bobby hugh newton started the black panthers in oakland, california. He we newton had some Legal Training and took the position that the Second Amendment gave individuals the right to bear arms in public which they and their fellow black panthers began to do. This created a stir, to say the least. And shortly thereafter the California Legislature passed a law restricting the possession and use of weapons in public places. And newrestrictions laws in other states soon followed. This energized some gunowners and libertarians, who felt the government was infringing on their Constitutional Rights. As you know the nra became quite vocal, particularly since the 1970s. When the gun debate began, the major debate was whether the Second Amendment is limited to arms,a related people, and activities, or whether, as the black cat theirs and the nra claimed, it includes an individual right to keep and bear arms. Disconnected from any actual or potential service in an organized militia. This question was answered. By the Supreme Court in 2008 in the case you have heard referred to called the district of columbia versus heller. The spring court held the Second Amendment does include an individual right at least to the extent of keeping and using handguns in the home. So the Second Amendment is not limited to the organized militia. Heller also makes it clear that gun control is not categorically unconstitutional. So another thing we know is that the right to keep and bear arms, like all other things, like all of the rights, is subject to regulation. Having said there is an individual right, Justice Scalias majority opinion went on to say, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, were laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms. The individual rights reading resolved, the question for the Second Amendment now is ,or most constitutional right as for most Constitutional Rights, is what kind of regulations are permissible . Over the last 10 years in more than a thousand cases that has been the question courts have struggled to answer. Until recently, the Supreme Court has stayed out of that debate. Though as we will talk about, the justices have agreed to hear a new york case that has the potential to change everything. That is the case most recently which our speakers have filed briefs in. Murphy as counsel for the petitioners. Joseph look or has filed a friend of the court brief in support of the other side. I would like to start with a question for both of them. The Supreme Court has said this up the Second Amendment includes an individual right but it is not unqualified and some instructions are permissible. Even that, how should courts determine which gun regulations are constitutional. Ms. Murphy good morning and thank you for having me here. It is great to be in this area. I have not been up to this part of the country for. Given the position ill be taking in discussing these issues. It is a delight to be in a state that actually continues to respect and protect Second Amendment rights. That is something we are always looking for in all these cases and all the states relitigate. As john mentioned, ive been involved in many cases. Many of the cases we will talk about have litigated these cases, typically on the side, always on the side actually of advocating in favor of Second Amendment rights and challenging restrictions that have been passed by states, municipalities , and in a few cases, the nine states. And it has been an interesting and so far challenging area to litigate in the past 10 years because we have seen so many jurisdictions that continue to that do notive laws seem consistent with the notion that Supreme Court recognized the Supreme Court recognized the Second Amendment is an individual fundamental constitutional right. That is not true of all jurisdictions in most states, over 80 , protect the right not just to possess a firearm in the home, but also to carry. Toy states through licensing carry a firearm. Many states through licensing regimes, known as shell issue licensing regimes, where basically any lawabiding citizen is going to be able to obtain a right to carry a firearm, so most states in the country have been protective and continue to be protective of the rights that the Second Amendment protects. Notwithstanding his sacs that has been 10 years since the Supreme Court said this is in fact an individual right, we continue to see a number of jurisdictions, and jurisdictions with a large population, that make up a large portion of the country, that have responded to passing ever think more more aggressive and constraining directions on the right to keep and bear arms. One great example of this is the city of chicago. Caseu go to the heller itself, heller was about whether you can have a ban on the possession of handguns. TheSupreme Court held that district of columbias ban on possession of handguns was unconstitutional. Chicago had them plays a nearly identical band on the possession of handguns. Instead of acknowledging that under heller its band would be clearly now unconstitutional, chicago continued to defend it. Chicago continued to defend it by arguing that the Second Amendment does not apply at all to states and municipalities. Now pretty much every other individual constitutional right, whether enumerated in the bill of rights or recognized by the courts through other doctrines like due process, has been interpreted for decades to apply , not just to the federal government, but two states and municipalities. Yet chicago and a few other jurisdictions refused to acknowledge that they were even bound at all by the Supreme Courts decision in heller, and that the second amend mint has any impact on states and meanest polities. That the Second Amendment has any impact on states in the mid municipalities. That led the Supreme Court to a second decision, mcdonnell versus city of chicago case in which the court rejected that position and said no, this is an individual fundamental right. States and municipalities must respect it the same way. Even then, chicago would not give up. Chicago responded to that decision within a few days by passing an extremely aggressive system of licensing regime for possessing a firearm. Under that regime, chicago said that in order to get a license to possess a firearm, you had to have had an hour of training at a firing range. Ok, so far so good we all agree, that is absently important to understand how to use your firearm if youre going to possess one. At the same time, chicago simultaneously prohibited firing ranges within the city of chicago, thereby making it illegal basically impossible for its own residents to actually obtain what chicago had said they needed to have in order to qualify under chicago law, to have a firearm. That was struck down. And the city of chicago nonetheless continued to aggressive laws it was one of the first jurisdictions to have a complete absolute provisional carrying a firearm. Which is held constitutional. And it continues to have extreme aggressive rejections today. Including being among the jurisdictions that in pose a special discriminatory tax on firearms. On obtaining a firearm. The Supreme Court has said for decades that you cannot impose taxes on the exercise of a constitutional right. General you have just a tax that applies to everything and incidentally reaches a constitutional right breaches a constitutional right, that can apply thereto. But the Supreme Court has long made clear and it comes to the exercise of first minute rights, speech, religion, all these other areas, the Supreme Court says you cannot have a special tax that signals that the exercise of Constitutional Rights. That is trying to deter people from exercising rights they possess. It chicago and other jurisdictions have that. Special taxes they impose for the acknowledge purpose of pretty much for the acknowledge purpose of to deter people from exercising a right that this up in court has held the constitution protects. We have seen thing from other jurisdictions, aggressive laws from places like san francisco, los angeles, the district of columbia, new york and new york city have been particularly aggressive. New york city restriction has court the supreme deciding to hear a case this fall. That will mark the first case in 10 years that the Supreme Court has heard in this area. Restriction. Has a they have a licensing regime that says that in order to possess a firearm within your own home, you have to in license. A license note is a premises license. As a condition on that license, it says you cannot remove the firearm from your home to take it anywhere except to an authorized shooting range. Even then, you have to transport it unloaded and locked up in a container, locked separate from insemination. But the catch beyond separate from its ammunition. But new york city defines authorized to be only shooting ranges within the bounds of new york city itself. There are grand total of seven shooting ranges in the entire city of new york. A city of more than a Million People. This results in a restriction handgun fromve a the limit of the city of new york at all. This is an outlier restriction that we have found to this point no other jurisdiction in the entire country, city or state, has. There is no other one that says you cannot remove your firearm from the limits of the city at all, even to take it next door to a shooting range that maybe, you know 50 minutes away if youre talking about someone who loves at the edge of new york city and wants to go say into new jersey or out to long island. Ofse are the kinds restrictions we continue to see from jurisdictions that really do not want to accept the proposition that this is a fundamental individual right. And instead continue to treat the right to keep and bear arms as if it were really more of a privilege that people are allowed to exercise only at the grace of the state and with the states permission and with all of the constraints that the state wants to put on it. Now many of these restrictions have been challenged in court. In courts. Normally when youre dealing with the realm of a restriction on an exercise of Constitutional Rights, the assumption is those roots the presumption is those restrictions are not constitutional. You can its not thats not that you cannot regulate Constitutional Rights. You can have laws that regulate. That impedance in respects First Amendment rights. When you go to courts the courts treat the laws as presumptively unconstitutional. And it is the governments burden to explain how they can be consistent with and do not unduly restrict the exercise of Constitutional Rights. In this realm we continue to see from the lower courts that the lower courts are not interested in figuring out what the right protects. There instead fixated on that language mentioned at the outset here from heller, that said, not every law is unconstitutional in this area. And essentially what they do is treat that as the holding of heller. Instead of holding that heller protects a constitutional right, what heller really said is dont really, you do not really have to protect this right. So we see courts adopting extremely broad positions about categorical types of laws that they consider not subject to scrutiny by courts. A couple example. If you go back to that language what heller said is nothing in our opinion to be taken to cast out on longstanding prohibitions on the possession of firearms by felons or the mentally l, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of firearms. So you have three types of laws the court talked about that it said were presumptively, didnt. Ven say necessarily the district of columbia argued that the entire district of columbia is a sensitive place, akin to a school or government building. The whole district is an area to which the Center Second moment does not apply. One of the judges they argued that position before agreed. Saying it appears to me that the district of columbia is essentially one Big Government building. So the Second Amendment kind of doesnt really apply here. This is particularly remarkable given if you go back to heller, the jurisdiction heller was the district of columbia. Arguedtrict of columbia in heller that was not bound by the second minute. The Supreme Court disagreed. Yet the district continue to argue that it remains not bound by the second moment. And there judges that have agreed with that position. Not bound by the Second Amendment. And there are judges that have agreed with that position. That entire cities can be deemed sensitive places we litigated a place years ago in california that involved special restrictions, fees that california puts on the ability to engage in a firearm transaction. They have a fee you have to pay that then they put into an account that they use to go engage in Law Enforcement activities against people who unlawfully use firearms. So they basically make it a condition of obtaining a firearm and the lawabiding citizen that you help pay for special cost generated by citizens who violate the law. When we challenge that provision, the District Court that we started before invoking the language of heller about laws imposing conditions on the sale of arms said that all commercial restrictions having anything to do with firearms are categorically outside the scope of the amendment, such that they are ipso facto constitutional. And courts do not need to look at all at the impact that they have on secondment rights. As we explained to the courts and challenging that, if that were correct it would mean that the jurisdiction a jurisdiction could impose a Million Dollar fee as a condition of obtaining a firearm and the second moment would have nothing to say about it. That is extraordinary proposition that no court would accept if we were talking about First Amendment rights. And the first memo area is quite clear and has been for some time. Thats the First Amendment is clear and has been for some time. As one court put it, a tax of a hey penny on the exercise of first moment rights can be unconstitutional. But here we have courts saying there is no scrutiny at all, no room for courts even analyze conditions on the sale of firearms. In our new york case, the one that is going to the Supreme Court this fall, when we challenged this restriction on the ability to remove a firearm from the limits of new york city and take it to a shooting range axtdoor, to participate in target sheeting competition in a neighboring state, the court that we challenged that before, refused to accept the proposition that the Second Amendment includes a right to learn how to actually use your firearm. The Court Assumed without deciding that perhaps, perhaps the second moment would include the right to actually know how to use your firearm for selfdefense, rather than just keeping in your home with no idea what to do with it. But they would not even accept the notion that that was clearly something that was in the scope of the Second Amendment. Activityis pattern of both from jurisdictions and the court has led several justices on the Supreme Court to observe that really there seems to be a consistent and persistent pattern of treating this right as a secondclass as sort of the chip dust stepchild of rights as one justice put it, a disfavored right as Justice Thomas put it. And justices have written heatedly held and justices have said, and Justice Alito said, that you cannot treat a constitutionally enumerated lesser andmehow entitled to lesser protection than other rights in the constitution. Yet this is time and again what we see. Basically what there seems to be is this pattern of resistance to courts in jurisdictions that do not like the idea that the constitution protects this right. Therefore theyre not willing to give it the same respect and treated the same way that they would treat another constitutional right. We would submit that is just not aboutble way to go applying the constitution. When we have a constitution that does tablets is rights, it is the obligation of jurisdictions to protect them. And it is the obligation of courts to enforce those rights and strike down laws that infringe on those rights. So i would submit that it would courtsthat all of these in all these restrictions would be better served by spending some real time focusing on the 60 pages of the heller decision that explain the contours of this right. That explain what it is they are supposed to be protecting. Rather than fixating on the single line of dicta from the court, in which they made the unremarkable observation that just as with any right, not every single law that has anything to do with it is unconstitutional. In fact the way the courts be looking at it is the same way they look at rights in other contexts. And say the state wants to pass a regulation, that impedes first and second member rights, justice in the area first memorize, they start with the presumption of unconstitutionality and it is the obligation of the state to prove to the court that what is what it has done is engage in regulation that is consistent with the scope of the right that the constitution protects. [applause] mr. Blocher good morning i would like to begin by thanking pete and john for that generous and thetion, osher organizers were putting together this fantastic lecture series. And all of you for being here this morning. It is a real honor and privilege for us to have a chance to discuss and debate these incredibly pressing and complex issues. With all of you and me in particular im thrilled to have the chance to do it with erin who has been at the forefront of some of the most important litigation the country over the past several years. Different this in ways. One is that im a law professor by trade, not a selling advocate paradigm going to focus more and as a broad trend and not specific cases. I think we have some Common Ground and prince was we agree on. To the degree that we part ways it is largely to do with how those principles apply in practice. So i thought maybe i would start by clarifying, based on her opening remarks, what i see it up as our areas of agreement and disagreement. First, i emphatically believe that courts and i would add scholars, politicians, the general public, have to take the second minute seriously. I think that to the degree we may part ways it is about what that means in practice. What it entails to take the second moment seriously. I also think that part of taking the second minute seriously is taking seriously the Supreme Courts decision in the district of columbia versus heller case. As pete mentioned in his introduction, i was on the losing side of that case. So im not the most natural candidate may be to be here salivating his legacy or defending it as president. To be here defending this legacy or defending it as precedent. But ive also written and will emphasize again here today that it is the law of the land. And it seems to be doctrinally secure. And any effort to answer the question we have given ourselves today, which is how should courts interpret the Second Amendment . Has to build on the foundations that heller laid down. But that is not necessarily bad news for those of usand here i certainly include myselfwho support reasonable gun regulations. It may be here that erin and i start to part ways, at least in what we emphasize from the heller decision. It is absolutely true, and this alone makes it a landmark decision, the Supreme Court in heller recognize, maybe for the first time, the individual right under the Second Amendment, to keep and bear arms for private reasons disconnected from an organized melissa militia. And the primary purpose for selfdefense in the home. But that is not all the court did. Butyou heard this already it bears repeating. The court said that that right like all rights is subject to regulation. Is right and i agree that should be an unremarkable proposition. That for the other rights you have free speech, free religion and so forth. It is worth emphasizing though because too often in the gun debate you see people saying i sip i oppose gun control before because i support the Second Amendment. Or vice versa. That is a false dichotomy. Rights and regulation can coexist and have coexisted since the beginning of the founding of this country and before. And Justice Scalias majority opinion emphasizes that. You have already heard this language a few times but it is worth repeating in the majority up and he says, nothing in our opinion should be taken to cast down longstanding prohibitions on possession by felons or the mentally ill, or the carrying of weapons and sensitive places, like schools and government the links, restrictions on the commercial sale of arms. I would add to that list elsewhere in the opinion he points to bands on dangerous or unusual weapons, bands and concealed carrying. Part of taking the Second Amendment seriously and taking heller seriously is acknowledging and taking seriously about its boundaries, islamists. This is not an unlimited right. Limitations. This is not an unlimited right is not immune to prohibition. That does not make it different than any other constitutional right. There are some forms of speech, whether his perjury or libel or securities fraud, that do not trigger the protections of the First Amendment. They civilly fall outside of constitutional protection. The reason that a significant, is those categories that Justice Scalia enumerated, in practice describe an awful lot of the gun regulation that we have in the United States today. And i will probably focus our disagreement on a sub set of outliers that involve unique laws or outlier laws. Like the new york law which she mentioned which as far as i can tell is unique. And that new york itself has declaimed any interest in defending. It is important to came to keep in mind to the forest that lay behind the trees. Since heller was decided 11 years ago, lower courts have dissolved more than a thousand Second Amendment cases. It is probably, resolved more than thousand, closer to 1500 cases. In 90 of them courts have rejected Second Amendment claims. That is not because they are biased against them. It is because a lot of those clans are weak to begin with. Nearly a quarter of them involve felons, trying to get out from behind the federal law which prevents convicted felons from having guns. Heller says specifically that that laws constitutional supported by history and common sense. 99 of those cases are losers. It is important again when youre trying to answer the question, what is the test we should be applying across all the cases, to keep the broadview, and not set heightened scrutiny or strict scrutiny across the board just on the basis of a few of these outlier cases. We do not need to burn down the forest when all we need to do is trim a few bushes. It is also important to remember what motivates these laws. In my experience at least, it is not bias against the right to keep and bear arms or against gun owners. I think that as pulsed show, most americans support both the as polls show, most americans support both the individual right to keep and bear arms, and unregulated in spirit they recognize what the constitution says which is that rights and regulation can coexist. To the extent people support regulation is probably because they are stunned by the fact that still today, every year 100,000 markings are shot. Alreadylester almost thousand americans died as a result of gunshots last year. Some of those are selfinflicted , some are people being shot by others. Some are people being shot on purpose, sometimes by accident. We should know by the way the majority of done deaths are suicide deaths. What that means is that any effort to make a debt in this massive problem that everybody recognizes is a problem, is going to require some flex ability. Sometimes we talk about gun control as if it is just one thing. It is not remotely, practically, constitutionally feasible to think about a that way. There is no remote proposal to take away the 200 million to 300 guns in circulation in the United States. With theas to do proposal has to do with policies like denying guns to felons or people suffering from a drug addiction. Those of the kinds of tailored policies that were going to need which even marginally can make the difference of saving a thousand people from being shot or 300 people from dying every year. That is the kind of flexibility in tailoring we need, and they lead to Different Solutions differ places. What might be appropriate or necessary and up like manhattan. May not be prepared or necessary in a place like hanover or rutland. We are seeing communities and states playing their constitutional role as what Justice Brandeis called laboratories of extremity and. And trying to find solutions that work for them. Those are going to vary from place to place. What that means for constitutional law is that the undiscussed addition a lot, the theiers that go too far outliers to go too far,. [] but when the cases are close, we should be cautious when the history and cases and empirics are clear, we should be cautious about preventing communities to find the solutions. Fortunately, so far, that is the root of the courts are taking. There doing so by applying what is called the twopart test. The first part of that test asks whether the challenged law in any way reaches guns or gunrelated activity who are covered by the Second Amendment. As he said, some are not. Felons, dangerous or unusual weapons, sensitive places. Those are for most courts view, carved out from the Second Amendment, just as some forms of speech are carved out from the First Amendment. They do not trigger the question. To those others, he goes on the second question as to whether the laws justifiable for the burdens it places on individual rights holders. Even conduct can be regulated. Even speech can be read lidded. If the government can show sufficient reason and that the law read lidded, if the government can show recent and that the law is tailored to that purpose. A lot is harder to generalize about the approach the courts are taking. Overall it looks like a sliding scale. So the higher the burden on the individual rights holder, the on that law entrenches core interest of selfdefense, especially in the home, the higher the burden on the government to justify what it is doing. Conversely, when you have a law that does not and trench on that core interest of selfdefense in the home, it is easier for the government to justify its position. Again, that is settled, and ground. It is a test almost universally adopted across the federal courts. In some respects what i am presenting a some what of a conservative argument against a potentially radical change. And there is a potentially radical change. An alternative test which has been articulated with some prominent dissent in the courts thenpeal, including by judge now Justice Brett cavanaugh. The way this would work is 1wood evaluate the ity solely in reference to text, history. I think and tradition. And tradition. I think text, history, and tradition are very important to interpreting any constitutional question. We always begin with the text and history and tradition should always matter. But the problem is that text, history, and tradition alone are unlikely to give satisfactory cases answers in hard cases. And they may open the door to a lot of unarticulated judicial power and judicial discretion. I should also say that the text the test of text, history, and tradition, would not do silly and forced rights any more powerfully than the typical forms of heightened scrutiny we applied to other Constitutional Rights. A justicegh emphasize this in his opinion. In the founding and before the founding in england in the 1500s through blackstone on the colonial era,. In the cloning will. We had here in the northeast laws that effectively banned people from having loaded guns in urban areas, and places like philadelphia, boston, new york had stringent gun laws. Those traveled with the countries addicts the country as expanded west. Dodge, ine tombstone, arizona made it illegal to carry a gun in the city limits. Test of text,lied history and tradition could end up upholding a lot of gun laws. Why opposition to this test to be clear is not because i think text, history and perdition are irrelevant pray i think theyre very relevant. Historyt that the and tradition are irrelevant. They are very relevant. The problem is they will not give satisfactory answers in the kinds of hard cases that the courts are going to have to confront. The Second Amendment is 27 words long. Nothing in those words tells you whether machinegun is an arm protected by the second amended. Nothing in it tells you whether a person under a Domestic Violence restraining order is among the people attacked by the amendment. You might turn to history and tradition for some guidance but sometimes they too are silent or conflicting. Heller is a good example of this. Nine justices all brilliant. None of them historians. All brilliant and doing their best of the history, look at some of the same sources and come to radically different conclusions. That is the same problem you run into if you ask historical questions about particular kinds of gun laws. Like researches on public carry. Or you will find different answers depending on where you ask the question. In new england especially in urban areas, there was a tradition of railing public carry more stringent than in the south. But the south led the way in restricting concealed carry. To choosedge supposed between these two threads of american history. That cannot be averaged together. Then theres the practical problem of drawing useful comparisons from the late 1700s of the mid1800s to today. Especially with regard to a rapidly changing technology, like guns. Some judges have tried to do this by asking, trying to identify the lineal descendents of guns from the late 1700s to today or the lineal descendents of gun regulations. That is a very hard thing to do. Judges are not historians and guns do not have progeny. They do not have family trees. In what way is in ar15 the descendent of a musket . If you look to their barrel lengths, how many shots per minute, the muzzle velocity. Those are hard questions. In practice, what we will see is that judges are going to answer them. And again, judge kavanaugh says this finality. Judge kavanaugh says is by analogy. Theres nothing wrong with analogy to define relevant relative relevant to larrys. Maybe their views look like yours, maybe they dont. They be their intuitions are the same as yours, maybe they are not. Ab they are protective of gun rise, maybe they are not. Ofmaybe they are protective gun rights, maybe they are not. But theres is reason to be skeptical. Andst on text, history tradition will probably boiled down to a test on judicial intuition. Could illustrate this in any kind of hypotheticals. You can ask whether a modern grenade launcher is like a musket from the late 1700s . In some ways it is, it is a bearable arm you can lift it that would suggest is covered by the tech and amendment. But it cant be right because it is more analogous to a canon. Therefore not covered by the second memo. Debating those positions is not a good way to chart where are constitutional laws could go. What matters to gun owners and regulators is the functionality of the arms at issue. What we care about is whether particular law functionally interferes materially interferes with peoples ability to exercise their constitutional selfdefense, especially in the home. The questions we should be asking are not whether in ar15s like or unlike a musket from the late 1700s. We should be asking if the government bars people from buying ar15s but allows them to buy certain other kinds of weapons, does that materially interfere with peoples ability to defend themselves in their homes . If show, has the government shown a good enough reason for the law furthering that reason. Though strike me as more traditional legal questions. The kinds of questions that a judge might answer. As me say in closing that erin and john emphasize, were here to talk about constitutional law. But the Second Amendment is not the major obstacle to further gun regulation in this country. And support is a reasonable gun relation are not losing a ton of cases in the courts. The primary obstacle to further gun revelation is political. We Second Amendment, again, agree on this, preserves some space for regulation. And it is a question of politics how we want to feel or not fill that space. And there have recently been strong pushes for certain gun regulations in certain parts of the country, the Parkland Movement is a good example of this. Young people say prevention of gun violence is a top parity for them. My argument is that the Second Amendment properly interpreted and as interpreted so far, allows us to make those choices. Thank you very much. [applause] [applause] thank you erin and joseph. Ive questions for you. Followup. As lawyers, we are very familiar with different burdens of proof. Doubt. To reasonable we look to more probable than not. And we know as lawyers that depending on the burden of proof , a case may be harder or easier. Mr. Garvey do we agree . I have read your brace and the new york case that weve been discussing. An air and i understand that you agree with the twopart erin i understand you disagree with the twopart test. Is that correct . Ms. Murphy it is probably more nuanced than that. Our problem is with the way this test has been employed in the execution of that by the lower courts. Abstract, the test seems innocuous you start by asking whether what is being regulated is within the scope of the right. And based on that you decide on the scope of scrutiny level of scrutiny. The burden of proof question. The promise if you look at the courts, take the first part of the test. There are numerous courts that when asking that question whether some in cups within the scope of the right, saying that heller had to do with handguns in the home. So that is the full scope of the right. We are not interested in whether there is anything else out there. Unless and until the Supreme Court tells us that Something Else is within the scope the right we will assume nothing else is whether it is something other than a handgun or something having a handgun outside the home, take you to a fire range. You cannot really have a test that hurts to ask about the scope of the right but then engages in no actual meaningful analysis of the scope of the right. One of the best illustrations of of one the vast majority of the most significant cases that have dealt with second memo challenges, not kind of the ones that where everyone agrees yet a lot of criminals raising arguments that people dont think our viable arguments. But the ones that deal with the outlier laws. You of course just assume without deciding the answer to the question of what the scope of the right is. I think it is extreme and problematic to start a constitutional analysis by not even answering the question of what the scope of the constitutional right is. The second problem judge kavanaugh is putting out his when you get to this after that, once they have assumed there is a may be something within the right. They ask what level of scrutiny do we want to apply . How heavy a burden do we want to is on the government. In every single case they apply the least heightened rationale if even that. Sometimes they apply the lowest rational possible. There is like no case in which the court has concluded it will apply strict scrutiny which is presumptively the kind of scrutiny that applies when other individual right is at stake. Tivoli what they say is we will assume without deciding that we will even apply intermediate scrutiny as opposed to plying essentially no scrutiny at all. What you have is in theory a test that sounds like it is asking the right questions. What is the scope of the right. In housing and is this burden. Instead what you see are the werts time and again saying do not care at the scope of the writers and we do not think anything burdens this right, so long as you still have what heller promised. Some ability to have an handgun in your ms. Murphy you have got a real problem with the test because it is not being applied in a way that takes a serious the idea that you have to take the law before you can say is this law consistent with the constitution . Joseph, do you agree that the court entered in the Second Amendment differently or subjecting it to a secondclass kind of status . It is a hard question to death in the abstract. Anytime you have a set of cases that is as large as we have in the postheller Second Amendment world, more than 1000, close to 1500, there will be outliers on both sides. There will be some cases where courts have protected the right to bear arms. There are other cases in which d in theave erre other direction. My objection is with labeling and a trend. It is true that there have been few successful Second Amendment challenges. Again, the reason for that so mostly to do with many Second Amendment challenges that actually form the bulk of the litigation. They are weak to begin with. Of them areter felons trying to get around the part of thesession law. 99 of those cases are losers. That johns down the average of success. Most challenges are brought by criminal defendants who have every right an incentive to bring any claim they can, but they tend to lose their Second Amendment claims just like they tend to lose their other constitutional claims. The success rate. Surprise that the overall success rate looks low but that does not mean the right is being treated as second class but there is not a lot of strong claims being brought in the first case. The reason for that, and this is going back into something erin said, in most parts of the country, theres not a lot of stringent gun regulation to challenge in the first place. This is not a target rich environment for litigants. You would be unlikely to see successful Second Amendment challenges. It is no secret that a lot of the cases come from states that are more prone to regulation. New york, california, and so on. When you zoom in on particular classes of cases, you find a much higher six x rate and you will find it in those courts, including the second circuit, and the d. C. Circuit. Where most of the successes have been. I have to plug my own scholarship. With my coauthor, eric rubin, ands a dartmouth grad a team of researchers, we coded 100 questions about every single available postheller case in 2008 22016. This is more than 1000 Second Amendment challenges. The data we got confirmed that impression that a lot of the cases are weak to begin with. When you focus on restrictions on public. Parties were represented public and parties who are represented, it goes up. I do not see the secondclass treatment manifesting itself broadly in the courts. There may be cases that have gone too far in deferring to the government. S asSecond Amendment stand a generalization. To change the way we treat all Second Amendment law would be a mistake. I. Murphy i only litigate only ever litigated civil cases. We are not bringing cases that are these cases you are referring to. And on the ground, i can tell you it is not the perspective that the meritorious close call tough cases that are challenging new novel restrictions, as opposed to laws cases being brought decades after the fact by people who were convicted a long time ago these are not faring the way you would do if you bring a First Amendment challenge. Every time you get any kind of victory in the ninth circuit, immediately, you start by arguing a case before a threejudge panel. If you happen to get the rare threejudge panel that actually immediatelyr favor, some other member of the court will spontaneously, on their own, call for the court to reexamine the case and have a new hearing to decide whether the panel must have been wrong to actually rule in favor of the supporting Second Amendment rights. I have this happen in a case we litigated against the state of california. It was in the preliminary stage on onewon on appeal we w appeal. A judge said we better reexamine the spirit the state of california said do not bother. Reexamine the case. The state of california said do not bother. You see this time and time again with these cases. They are the courts dealing with the jurisdictions that are most thatle in passing the laws continually seem to rubberstamp whatever it is that dates want to pass. Excepthe Supreme Court your position on how to review the rights guaranteed under the constitution for the Second Amendment, do you feel it is more likely that there will be successful challenges to regulation if they adopt the approach suggested by then judge kavanaugh . Ms. Murphy we have not definitively, firmly advocated for a particular approach in terms of we are happy to take judge kavanaughs approach and a meaningful, robust version of the twopart approach if it were really one in which the court generally treated laws as presumptively unconstitutional. Another, ourr principal point we have been time to make to the Supreme Court is whatever tested is that you are going to adopt in this area, it does need to take very seriously the history and tradition, and look at this the way heather did, asking what its scope is, what kind of things it protected back when the amendment was ratified, what the people understood it to be, and that if you do that, you will find that a lot of these restrictions are very inconsistent with the historical scope of the right. Certainly do think there are a number of laws that have been challenged, that stand,have allowed to that they should not allow to stand and they are only allowing because they are not applying the same kind of rigorous scrutiny that would be applied if you were dealing with rights under other provisions of the cost. Mr. Garvey heller involves the handgun, but you both mentioned typesthat there are other of weapons that would be subject to Supreme Court analysis. Right . So how this question for both of you. To what extent will the court figure out what kinds of weapons are protected by the Second Amendment . Mr. Blocher i think we can sort off the extreme positions. There are some kind of weapons that can be regulated and banned without triggering Second Amendment scrutiny. It is also clear that there is at least one class of weapons, handguns, that cannot be banned. Left with three categories. The ones that definitely can be banned, and the court and heather seems to equate those with dangerous and unusual weapons, those being not in common use. Those are the ones that cannot be banned, which heller says his handguns, which heller says are the quintessential selfdefense weapon. And then there is the middle category of weapons which are those that are not dangerous and unusual, which are in common use, which can be regulated. One class of weapons that is often litigated here are the socalled assault weapons. The definition its hard to track down. People often mean Different Things when they cover the assault weapons. In those kind of regulations, the relevant question again is dot does that ban practically for peoples ability to effectuate their Constitutional Rights . Class of arms as a natural category as a mistake. Heller says handguns are immune because they are the quintessential selfdefense weapon. Should notthe like be treated the same way. You have to treat you defend classes of weapons differently. In practice, a lot of this comes down to details. If you are regulating a highcapacity magazine ban, what counts as highcapacity matters. Sometimes, jurisdictions set that number quite low and some of those have been struck down. I think, probably rightly. If the number is seven, it is too low. But if it is 12 or 20, how much does it impact peoples ability to defend themselves in their homes if they cannot have a 20 round clip . That does not seem to me to be a natural integration of color. Ms. Murphy ive heller. Ms. Murphy it is always critical to put in context the language that people like to pull out of heller in an effort to support the gun regulation side of things. When heller talked about handguns being the quintessential firearm and why they are the quintessential selfdefense weapon and therefore within the scope of the constitution, the state was saying that in the context of rejecting the argument that there is no need for people to have handguns so long as they guns. Ssess this is not a right. So long as you have some type of arm that is good enough and the state can pick one and you get nothing else, they said even if guns, you haveng a constitutional right to handguns because they are a quintessential selfdefense weapon that is owned for the purpose of selfdefense. You have jurisdictions that turn around and say heller said handguns are what is protected so we do not have to worry about the rest of it now. Drill down ond some of these definitions about what it is that constitute the socalled assault weapon and what it is backward look at when trying to say that these weapons are somehow categorically essentially,mean, it is taking traditional rifles and having aspects of them that make them actually easier for someone to use for selfdefense, make them safer for someone to use, and make them less likely to cause Collateral Damage if you do actually need to use them for selfdefense purposes. What youou have yet have our courts saying these make them more dangerous and therefore take them outside the scope of the constitution. That is quite a counterintuitive proposition if what youre the notionout is of being able to own a particular firearm so you can effectively use it if he were to actually needed for purposes of selfdefense. I do think the better way to come at this issue is the way that heller its often itself did by saying what kind of firearms are traditional with the historical scope of what is . You use forarms selfdefense. It is protected. Picktate does not get to and choose as the district of columbia tried to do between long guns and handguns, as to which ones they want to protect and which ones it does not. Mr. Garvey thank you both. I want to ask you one more question before the break and it is to both of you. I would like to ask whether and to what extent the right to keep and bear arms extends outside the home . Ms. Murphy sure. Fully. [laughter] an murphy this has been extremely hotly debated issue and one of the biggest issues of litigation in the past five years to 10 years. As i mentioned earlier, there is i believe at this. 42 states that are right to carry states are 40his point there two states that are right to carry states. There are different types of restrictions. What we tend to see most often are what are known as kind s that sayuse regime you can get a license or permit to carry only upon a showing of good cause, which typically means you have to demonstrate actualu face an documented threat to your safety that differentiates you from ordinary individual lawabiding citizens, that you can come in with Something Like i have got a restraining order or somebody threatened me or Something Like that. It is a functional matter in those jurisdictions. Really, there is no right to carry for the ordinary lawabiding citizen. We have argued in all of the cases that those kind of functional bans are unconstitutional. The historical scope and the historical tradition of the Second Amendment, it has long been the tradition going back to the founding in the 1800s that there was a right to carry firearms. Certainly, as the court acknowledged in heller, there can be some restrictions in sensitive places and things like that, but these laws that just flat out essentially prohibit people from carrying firearms at all are really very just contrary to the history and scope of this right. It is particularly problematic that you have a number of these court that have looked at this and actually almost all either completed or, as i suggested lier, assumed is they have held these restrictions reallyutional, which makes very little sense to say that something is a constitutional right, it is something that the constitution guarantees you, yet to then say you have a form of scrutiny under which it is constitutional for the state to say that you cannot exercise that right at all. There is no other context in which they would say it is within the scope of the constitution but you cannot do it. Mr. Garvey joseph. Mr. Blocher i think it is important to clarify that there are no jurisdictions in which a public hearing is needed anymore. 42 which havehe challenged the regimes, and the remaining eight, allow for some carrying of guns in public. Foley or, whether subject to different kinds of regulations, that right looks when you leave your home. Question is how it extends outside the home, not whether it does. Every jurisdiction allows some form of it. Here, i think that my position is government does have more leeway to regulate the public carrying of weapons than it does the private carrying of weapons. That his doctrine, history, and common sense. Heller says that the interest in self defense is most acute in the home. That does not mean it does not extend outside the home, but logically, definitionally, it is less acute. Is traditionalis selfdefense doctrine. That is the persons castle. You have your strong right to defend against an attacker. That makes perfect sense. That is wellestablished. Home, if you take your gun and the public, you are affecting other peoples rights to feel and be safe from gun violence. The government interest in regulation correspondingly goes up. As a good cause restriction were to function like that, it should be treated as such. That is the way the law has traditionally worked and referred to guns. There is evidence of public carrying, as i said, across the country. There is evidence of much stronger regulation of guns in public than in private and i think that makes sense. It is not because selfdefense needs do not ever arise in public. They do. That is one reason courts have held or assumed that the right extends in the public. But i think that to conflate the right to keep and bear arms and the act of selfdefense is again misleading. The vast majority of actions of selfdefense do not involve guns. Based on they National Crime victimization study found that less than 1 of selfdefense actions involved guns. The vast majority of gun bearing, fortunately never involved selfdefense. Another study out of harvard recently found that if every gun,households that keep a only one will use that gun for selfdefense. There is an overlap. Guns and selfdefense sometimes overlap, but it is not as tight a connection as you might think from reading some of the opinions. Mr. Garvey thank you both and thank you for your comments this morning. [applause] mr. Garvey the first question. Do you think that the 18thcentury writers of the constitution would approve of this amendment interpretation in relation to the Mass Shootings, suicide, and school shootings, protecting gun rights in the 21st century . Who would like to go first . [laughter] mr. Blocher i already said a little bit of my view interpreting the Second Amendment solely with regard to text history and tradition. I will emphasize that i do think the history matters. We can still learn from the history and the founders use views, and i do not think they would be antagonistic to them regulation on the table today. Sometimes, people are too quick to assume that history is antagonistic to them regulation, as if it is a new gun regulation, as if it is new. It is hard to project what the framers would have and could have thought about the kinds of 3d printed guns and automatic weapons that they would not have been familiar with or to think about school shootings, but we can think about what kind of general principles might they have endorsed, and they might have permitted the government to address Serious Problems of health and death through regulation. They did not regard the right to keep and bear arms as being immune to regulation and i think we are consistent with their vision as we see if the same way if we see it the same way. Ms. Murphy i think the question is missing what the role of history is in how the courts interpret the constitution. The reason that the Supreme Court has talked about looking at history is not with the idea know, the framers were really smart guys so whatever they would think today is the way we should think about issues or the constitution get the point of looking to history and washe text and how it understood at the time of the constitution is to say when the people ratified this amendment and put it in the constitution, what was the stove of the right that they thought they were putting in the constitution to be a protected right . And then start with that as our background starting principle of if the people thought it was important, understanding that firearms, yes, are dangerous, but also are important to selfdefense, to put it that this was not just the right that you could trust the government to come to regulate in reasonable ways, but was sufficiently fundamental and individual and important that it needed to be enumerated as the Second Amendment to our constitution, that tells us about what is the scope of what thinking about the absolute minimum that the government has to allow . None of that me is that you cannot have debates about whether we still think today that aspects of the constitution are what we would make our constitution today, but when we have a constitution that enumerates rights, to come in after the fact and say if people knew then what they know today, would they have said the same thing . If not, we will ignore what is in the constitution. That is an extremely problematic way of coming about constitutional interpretation and enforcing Constitutional Rights, because it essentially allows courts to substitute their judgment for the judgment of the people when they ratified the constitution and decided to put right in there. When rights are identified by the Supreme Court that are not specifically enumerated in the constitution, isnt that what they are doing anyway . Ms. Murphy that is a big criticism about the areas in which the court has found rights in the constitution that are not enumerated. Is certainly a reasonable debate that we can have on many of those topics, but you know, what we are talking about here is one of the enumerated rights. There is really no debate that the Second Amendment you can have a debate about the meaning of the Second Amendment but it is in the constitution. We think that that include the right to carry firearms even though there is nothing in the constitution that speaks the firearms at all. When you are dealing particularly with a right that text, and historically that there is this backdrop and this understanding among the states as well at the time of the founding that you have to treat them differently and you cannot just about it as we are just in the realm as with anything else where whatever the government thinks is reasonable is good enough. Mr. Garvey heres a question to follow up on that. If whomever decides that the Second Amendment as interpreted by the Supreme Court is not what they want at this procedure, matter of can Congress Change it or does it require a constitutional amendment . [laughter] ms. Murphy i think that is one we absolutely agree on. Congress cannot change this. Congress is bound by the Second Amendment, as are states and localities. That is the point of a constitutional amendment is to say the only way you could change it is through amending constitution itself, not mr. Blocher it requires a constitutional amendment. Prostitution will change can happen. It can be driven by movements outside the courts, but they would have to be ratified at some point by either a constitutional amendment or holding of the judiciary. I would note that the Second Amendment is an interesting example. As we have been talking about it reallydecision was, as john said in his introductory remarks, effectively constitutionally enter. Inert. Talked about the First Amendment, the very active neighbor. The third amendment protects against the quartering of troops in your home during peacetime. How often any of you have ever invoke that right, i can tell you invoke that right, i can tell you there is not a lot of litigation on it. Sometimes, constitutional provisions and the collecting dust. End up collecting dust. That is a social movement of advocates, scholars, judges, politicians. The popular understanding of the Second Amendment changed. We do not have polling on this going back too far, by the time heller was decided in 2008, the core of the whole thing was quite popular. 75 of americans said in 2008 that they agreed with it. I suspect that if you had asked the same question earlier, even a few decades earlier, you would have gotten a different answer. More anecdotes and pulling so i cannot than polling, so i cannot say. Bork, burger, robert people not known as leftwing judges, were saying that the Second Amendment clearly did not protect an individual right. Today, it does. That is in part because of the movement outside the court. Popular opinion in polls alone cannot do it. Has to be confronting that we recognize as constitutional change. Ms. Murphy if i can pick up on something, when of the reasons you had this shift in thinking is in part to go back to what we were just talking about, witches in the same time, we thought which is in the same time, we saw courts interpreting the constitution in a manner consistent with the historical scope of what the provisions of the constitution were intended to protect when they were put into the constitution. It was really a big part of the movement and shift of thinking. You started having historical scholarship about the Second Amendment and this became more theres other constitutional provisions we have seen in recent years. As you start to have scholars really dig in on certain provisions, we saw the immunities clause. Once you start doing that scholarship in a very serious way, especially today, when there is greater access to historical records, you can find things that are quite different it thought about things in the period in the middle when they did not focus also a lot on the original meaning of the constitution and thought about things from a little bit of a different interpretive process. I do think that some aspects of this are part of that. Mean,also worth noting, i the whole movement of enforcing Constitutional Rights at all is a 20thcentury thing. There were basically no First Amendment cases in the 1800s. It was not really the way most rights were litigated. It has been an interesting evolution over the past century, have in the courts much more involved in really expounding on the scope of all aspects of the constitution, not just a second or First Amendment. Joseph, is talk about how change can occur with the constitution and how Public Opinion at least can play some role in that although it is not dispositive, right . I think a lot of laypeople and lawyers would like to believe that the Supreme Court and that the courts, the judges, are just calling balls and strikes, that they are neutral and they look at the constitution and they neutrally try to a what is in there. But we all know from following television and high coverage of the Supreme Court appointments or the hearings and the nonhearings, that there seems to be politically a great deal of interest in who gets appointed to the court. And people who have submitted briefs to the Supreme Court, do you see yourself as submitting briefs to advocates were wearing black robes . You see yourself as submitting briefs to neutrals will mutually interpret what you say . Will mutuallyo interpret what you said neutrals who will neutrally interpret what you say . [laughter] ms. Murphy look, the justices disagree with each other because the justices have fundamentally different views on how to interpret the constitution. Of course, if you have fundamentally different views on how to interpret the prostitution, a statute, or all the types of issues courts deal constitution, a statute, or all the types of issues that courts deal with, it is easy to say it must be completely results driven and completely politically driven on both sides and all they really care about is the outcome. I think that mrs. Part of misses part of it. A good deal of what people are focused on when looking at nominees and will be on the court is not what have you set about whether you support a particular policy or law . You will not find judges who have said many things about that because it is not typically what judges are doing. Most judges dont have a background as a politician. It is focusing on what is the motive interpretation you think is right for the constitution . How do you think that we should evaluate . What levels of scrutiny should we use in evaluating laws when youre looking at a statute . Should you focus on the text or look more broadly at focus . The way you think about those questions have a huge impact on outcome. By and large, we have a judiciary that is rather equally divided and having two different approaches to those questions. Advocating, when i am arguing cases, i know there are people who come at it one way and people who come at it another and the way they come out it will in many instances kind of make it a foregone conclusion what they view as the right outcome in the case, but i do think it is a mistake to know,about that as, you making the judge is nothing more than kind of just politicians in black robes. Mr. Blocher i think i would separate the confirmation process, which i think in many ways has become just politicized in a way that is not helpful or useful to the development of an independent judiciary or the rule of law or peoples understanding of what courts do from the way judges decide or justices decide cases once they are on the bench, because it does not necessarily translate that an incredibly politicized confirmation process i agree that that has become the norm translates into a politicized judiciary. It may be the case with justice stevens, he will be the last one who is not interrogated on his views about roe v. Wade or Something Like that but fully on his merits as a lawyer. There are ways in which judges and justices can they do not always vote with what you might predict based on the party of the president nominated them. We can focus on the Second Amendment as an example of that. The five justices in the majority of other were all heller were all republicans. Some of the most prominent critics of heller are stalwart republicans. Kind of going against what you might expect to be the sort of party interest. That to me is a good sign that signal judges are taking their jobs seriously above and beyond the kind of interest of the party that they might have the closest affiliation with. Said is exactly right. Judges and justices have affinities for different kinds of arguments. To answer your question, when one files a brief, you would tailor the kinds of arguments to appeal to the justices and judges whom you are trying to reach. You mentioned the brief i filed along with two other scholars of Second Amendment law. That was in the new york case in which erin is representing the petitioners. We filed in support of my decide, neither defend of neither side. In the hope and expectation that justices have an appetite for kind of understanding what we are trying to convey, which is what is the actual state of play of the law in the courts . This is an area in which scholars especially in the last 10 or 20 years have done an enormous amount of work to actually measure can you predict outcomes based on, for example, the party of a nominating president . Sometimes, the answer is yes and sometimes the answer is no. I want to highlight interesting work and give them credit. Law has donel of to study on the question of whether the partisan various measures of partisanship and a judges identity predict their votes in Second Amendment cases. What they found in the first that he was not very much. In the second case, now that they have extended their timeframe, it is not the case that all republican nominated judges are voting for gun right claims and all democratic judges are voting against, even in this particular area of broad partisan disagreement. Judges are outperforming politics as a whole. A partisan gap on gun rights and gun regulations is huge and continues to widen 40 points or more now in the popular as a whole populace as a whole. Judges are doing Something Different than just politics. Mr. Garvey thank you. This question is from georgia. There were others that were similar. Is there a balance to be made between the right to keep and the arms versus the right to be safe from injury or death by firearms . [laughter] [applause] ms. Murphy so you know, i think that thinking about it in terms of, you know, a balance of one not, toainst another is me, kind of the way that i think you come about the issue. There is a right and the right is to keep and bear arms, and it is protected in the constitution, as the Supreme Court said quite explicitly in heller. We cannot me conduct the bout balancing inquiry ourselves about whether this is a good and important right in the constitution. That was the balance that was drawn by the framing generation in the people when they ratified the cartesian and put this amendment in the constitution. I do not think you can balance away the right in the sense of it is here, but this is not a right that we really think should be fully protected because we are not sure we like it so much anymore. That said, obviously, there is room, as there is with respect to any constitutional right for and degree of regulation, there can be laws that can be animatedat are generally by safety and by ensuring that people safely and effectively use know how to their firearms for selfdefense. There is strong support on all sides of this debate for ensuring that people really do have, you know, the training they need that they ensure that they are actually, if youre going to have a firearm, that you are frequently practicing with it, making sure that your firearm is in working condition. All of these things are supported by everybody on both sides of these issues. I think there is absolutely room for having the right in a way that is protective of the ability of individuals to haveise selfdefense, to firearms for permissible purposes while doing everything we can to ensure of course that firearms are not finding their way into the hands of criminals and are not the misuse in ways that would cause injury or death. Mr. Blocher i agree with a lot of that. It is the nature of Constitutional Rights that occasionally, they take off the table policies that might actually be quite popular and maybe even quite helpful. Even if a handgun ban would save lives in the district of , that is offhicago the table now. The constitution takes that off the table even if it would save lives. Cannot just balance. The question i think, and this is what erin and i have been to some extent agreeing and disagreeing about is the degree to which when you evaluate a gun law, short of a handgun ban or those stringent outlier laws, how much do you take into no saving the prevention of injury . By argument again is we should be cautious about taking that away from the political process when legislatures and executive branches across the country both nationally, state, and local, are doing their best to find solutions. I think they are trying to find solutions. The real question behind this question, in some respects, is what works. What works and respects the Second Amendment . That get usun laws there to reducing some of that 100,000 a year shooting number, 30,000 or 40,000 a year death number without going past these constitutional boundaries that we both agree exists . There is still a lot of room for the research for further understanding. Quick to take because the policies off the table constitutionally, we may never know what works and what does not. Yelp ofpart of the dead logic behind the laboratories of experimentation. Maybe your restrictions on assault weapons bans work, maybe they do not. Wherever you are in the spectrum, there are plenty of studies to support you. They did not have much of an impact when it was in force. There is good evidence on the other hand that loosening a right to gary locke leads to an increase in certain kinds of violent crime. Those are hard questions that researchers and politicians and others hopefully are still grappling with, but i think we are in many places nowhere near the limits that the constitution puts in, so we do not even have to answer this question. A favorite example of mine, i will put it out, is expanded background checks. This is the major push after the sandy hook massacre was to expand the system of background checks. The way background checks work is we have certain classes of people who are not permitted to possess guns. They are prohibited either on the basis of conviction of a felony, fugitive from justice, committed certain Domestic Violence crimes, drug addicts, those people are prohibited from having guns and buying them. How do you prohibit that from happening . A system of background checks such that sellers have to check against a list. Is this person a convicted felon . That law went into force in 1998. Over the next 15 years, more than 2 Million People were denied a sale because of a failed background check. We know how many of those people would have gone on to commit gun crimes. That is speculative. If you think the categories should be prohibited, it might be a high number. Extending background checks, would back come anywhere near the limits the Second Amendment puts out . I dont things are. It only applies to federally licensed dealers. Not people who are not federally licensed. They do not have to do background checks, so the proposal is to expand it. Overwhelmingly popular. 89 of americans say they support this. This is as close to a slamdunk as one gets in politics, especially in gun politics. But the people who are most opposed to it, and there is pulling on this, say expanded background checks would violate the right to keep and bear arms. That is a misunderstanding. That is not what constitutional law provides. The short version of my answer is that we are not in most cases the limits the constitution puts in effect. We dont have to engage in the balancing because we still have that space. That is a political question more than a constitutional question. Mr. Garvey both of you have, in discussing that, raised the issue that comes up a lot when it relates to background checks or for gun possession in general, and that if the Mental Health issue and the intersection of Mental Health possession. I would like you book to comment on where you think the intersection of those two issues lies. Mr. Blocher i think it is a really important intersection and really important to understand the importance of addressing both of those issues. I would start by saying it is not an either or here. Sometimes, it is presented as rather than address and violence, we need to focus on rather than address gun violence, we need to focus on Mental Illness. Resources should be given to people with Mental Health problems regardless of the impact that would have or not have ongoing violence. On the environment. It is overbroad to focus on Mental Illness as if it is the problem. If we can do with all Mental Illness linked gun violence, we can do a lot to lower those numbers. Would still be left with an enormous Public Health calamity. The fact is that it is only a small percentage of gun violence people committed by suffering from acute Mental Illness. It tends to be the prominent ones that is disproportionately in the Mass Shootings. Is not comingber from Mass Shootings. The daily drip of handgun violence and suicide. Any intervention we can get there is really important. Keeping in mind, Mental Illness is a very poor proxy for whether a person is going to misuse a gun. The vast majority of people who have a Mental Health crisis are never going to misuse a gun against another person or themselves. It would be too broad to say that anybody who has ever sought treatment for depression should not ever have access to a gun, that would be wildly overbroad. The question is how do we identify those people, those individuals, who are really a risk to themselves or to others . Time itto them at the is most needed. There are various ways that law can do this. Sort ofeen one of the regulatory innovations, if you like, especially over the last few years. More states considered or adopted these laws. They are often called red flag laws. The way these work is rather than being sort of a broad law that applies to everybody, it is more like a restraining order. Immediate Family Member or Law Enforcement officer can petition to have guns removed from a person who is a threat to him or herself or to others. Iverson going through a Suicidal Ideation period or threatening other people, who lost someone depths of a deep depression. Somebody worried about their father or grandfather. Those guns can be removed by Law Enforcement and a Court Hearing is set quickly so a person can petition to have their guns returned to them. Guns temporary, targeted regulation of the kind i think we can all at least consider as being the model for how this could work, especially the intersection of Mental Health and gun violence. Ms. Murphy i think this is a great area of an illustration. There are certainly areas, wherever you are in this debate, people are in agreement. It is Common Ground that everybody wants to keep firearms out of the hands of people who are mentally ill and would refuse them. I think it is a classic illustration of how some of these things are often easier said than done, and i think that wayies both in a predictive and in a retrospective way. We do not always know and do not always have a basis to know whether somebody is suffering from Mental Illness, and it can be very hard to draw that line and figure out whether somebody genuinely is suffering from mental and or is Mental Illness or is going through a rough patch. It is difficult to craft laws to figure out how to draw that line the right way. There are things that are very easy to put on one side of the line, but it is probably the gray area cases that are the tough ones and a tough areas to figure out how to legislate. When you look at some of these shootings,f mass where after the fact, it is very clear someone was offering from Mental Illness, it is not always abundantly clear that people knew beforehand the end to which that was going on, and certainly , if anybody had, they would have removed the firearms. , think there can be challenges as joseph alluded to come on the backend. Involvede rare case is an individual who was, you know, many decades later into his adulthood, he had, around the age of 16, been hospitalized one night at the suicide risk, and that was then treated as a permanent bar forever for his lifetime, for ever having and being able to exercise his Second Amendment right, and in an instance of what we consider and is applied challenge an astype challenge, saying the mentally ill cannot have firearms that they are can be there can be applications that are problematic. Incident during adolescence, somebody could forever lose their Constitutional Rights and essentially be branded permanently and mentally ill. While it is easy to think of this as being polarizing sites where there is one side that wants 100 regulation and the other side that wants absolutely no regulation at all, the reality is, in the middle, there that areome issues difficult issues to figure out how to craft the law to actually achieve what the objectives we do all agree are permissible objective under the Second Amendment. Mr. Garvey thank you both. Another question. This one from kentucky, and there were some similar questions asked. Is the individual right to bear arms that heller is now has now identified limited to selfdefense . So i do not think it is. I mean, it is interesting. Heller, particularly, going back to what i talked about earlier in the sense that it is easy to focus on the particular thing that heller was focused on, and it was particularly focused and there is quite a bit of language dealing with the right to selfdefense. Absolutely, we know from heller that the Second Amendment includes and protects the right to keep and bear arms for selfdefense, but theres also quite a bit of discussion in heller of other permissible usage of firearms that have long been accepted, including particularly that they had long been used for hunting purposes. That was probably the more frequent actual use of firearms that was happening in the founding days was that people , andssed them for hunting certainly, theres many cases that notwithstanding what the court intimated in our own case is going up to the Supreme Court, there are court that recognized that the right includes the right to have proficiency with your firearm, to use firearms in competitions and all sorts of permissible uses like that. They have been a little bit less explored in the cases because it tends to be more protection for hunting and more of the restrictions we are seeing, the nature of in the home and carrying selfdefense uses so theres been a lot more attention by the courts paid to these rights for selfdefense. But certainly, as a historical matter and if you focus on hellers analysis historically, the right is not to click and find to use for selfdefense. Mr. Blocher the court in heller and two years later in mcdonald, selfdefense is the core and central component is the phrase the court uses us the right to keep and bear arms. Sometimes rights even within them at certain parts that courts treat more sensitively than others. It is covered by the First Amendment but thats a little bit less. You might see the same kind of peaks and valleys within the Second Amendment. And selfdefense, especially in the home, will always be the peak. What aaron was saying erin was saying about hunting, we have not mentioned state law. A lot of these questions are addressed and sometimes answered by state constitutions. Prior to the Court Decision in 2008 in heller, there was a lot of litigation throughout two whichies under provisions in one way or another protected a right to keep and bear arms. Been a movecently to amend state constitutions and in some places to protect the right to hunt. You know, whether the right to hunt alone would be considered the same kind of core as selfdefense is to me at least not quite as convincing, but that does not mean it is not part of the Second Amendment right on the fringes, the penumbra, the shadows. Note also interesting to that hunting and recreation were probably the most common uses for guns in the late 1700s. In fact, that was true in this country until just a few years ago. Hunting and recreation were the primary reasons that gun owners gave, the most prominent reasons gun owners gave, according to polls, for guns. Shownlls have selfdefense is the most common reason for gun ownership. That is a very recent development. The may have to do with fact that hunting as a pastime is becoming less popular. Gun ownership the number of guns goes up, but gun ownership declines. Households have guns. East states in constitutional different wayso that people are thinking about their weapons and what they are useful for. This in a strain of Second Amendment rhetoric if not entirely in case law. The reason people should own guns is not for selfdefense against terminals in the home or for recreation and hunting but rise to turn the rise of a tyrannical government, which is a thread which i think is, at least in political discussions, sometimes quite prominent. I dont think you see many courts deciding cases on that basis. I dont want to sound as if i am entirely mocking this proposition. The view of the amendment that the court rejected in heller, the view advocated by the dissenting justices, was in some form of an antityranny view of the Second Amendment. By the time the admin on amendment was passed, the existence of a standing army, it was seen by many as an existential. It would exist as a check against that power. That is an and take your any view. An antityranny view. It is mediated through the state militia. But the notion of using guns against radical government has at least some pedigree. That was a pedigree the court rejected. It is harder to make it work through and individual right strain, but it does happen. Ms. Murphy frame, but it does happen. Ms. Murphy while the court has made clear there is a core right under the Second Amendment to possess and keep and bear arms for selfdefense, that is not to say you ignore that part of the part of it ishat about ensuring the preservation of the militia and from that perspective, you know, one of the core and critical aspects of the Second Amendment was people would own and keep and bear arms so that they would actually be proficient in their use. If called to Militia Service. When you think about that as part of the right, which unquestionably is historically part of the right, it speaks a peoplethe uses to which should be able lawfully to put firearms. I go back it certainly has to be the case that there is a right to gain proficiency in the use of your firearms because the whole Second Amendment would kind of make no sense if the idea were why dont you possessed some firearms that you can have for selfdefense and you can be called to use in Militia Service . But we do not care if you have any idea what to do with them when you show up. It is certainly an important part. And you think about hunting target practice and all of those things, that without them, the aspects of the right that are most important would kind of be meaningless for people to try and exercise. Going back to the question about the amendment and amending the amendment, i should have asked this at the time. We have had a question about whether or not there have been any attempt to amend the Second Amendment. Ms. Murphy i do not think so. There are certainly people who talk about it. The Second Amendment is widely supported still by people. There is not public support for an amendment. I am much anyone has in any way proposed one beyond the abstract debate. It really is still notwithstanding the fact that, you know, there are certain quarters that certainly do not like that we have a Second Amendment, that the American People, by and large, feel very strongly about keeping the amendment. And i think that is why the Movement Really has not gained any kind of public traction when raised by the couple folks that have put the idea forward. Mr. Blocher i am not aware of any major effort to repeal the Second Amendment. Gun violence prevention groups, one does not see this as a major talking point. It does not seem to be a partisan divide. During the lead up to the mccain obama election, both candidates supported the individual right to keep your bear arms. 75 of American People safe they support the right to keep and bear arms. Support for what you might think of as the most stringent gun regulations like bans on handguns have never, with the possible exception of one in the 1960s commanded support. The American People are squarely on the site of the individual right to keep and bear arms meaning something. That does not mean they agree on what that means. I will point out again because it is such an important fact that a majority of americans understand theey right to keep and bear arms to be an even larger groups support things like expanded background checks. There is an overlap of people who believe both in the individual right to keep and bear arms and that it can constitutionally be regulated further than me has. I think that its right. I think that is where the constitutional law is. I think it is hard to hear or see that kind of overlap in that area of agreement because extreme voices drown out everybody else with screeching, ifthere is a big middle you like, here, which constitutes both where the law is and where most americans are. The constitutional right, you can live with that. You can live with heller. Thean do more to expand regulatory space it leaves, like things like expanded background checks, extreme risk protected orders, targeted laws focusing on at risk classes of arms. That should be shy of the constitutional litigation. I am not sure that everybody would agree with the preposition of there should be more is. Lation unde than there there are regulations some jurisdictions dont have that are fine regulations that jurisdictions should have. I also think there are many regulations that many people do constitutional, but to me, there absolutely is overlap about the issue of, there are ways you can have regulation that is consistent with the Second Amendment and some of them may be regulations that are not on the books today. On the flipside, there are regulations that are on the books, and part of the policy debate is, are the regulations that are being passed ones that make any sense come out are we doing things that sound responsive and have a feelgood nature to them, slap some pejorative labels on certain types of firearms or ammunition and it sounds like youre going after something, were asked there may be much more targeted types of restrictions and regulations that could achieve much more but dont get quite as much play because they dont capture some of the politics of the issue . I agree with that emphatically, and i want to amplify what erin just said. We have some different gun debate. It shouldnt be that the support gun regulation in the abstract, that question should become lengthy support different policies . You get different answers when he asked that question. Some people say, i dont support regulation. Then you ask, do you support background checks . Do. I other said, support the laws on the books. And some people tend to assume that you have a federal ban on assault weapons, which we dont. The way to approach the issue is exactly as she suggested, focus on particular questions in particular policies, whether it is background checks, assault ,eapons, highcapacity magazine those are the kinds of questions we have to be asking, not the broad, are you for or against the Second Amendment question. Requestme ask you the does the last question. If you have been sitting here 12 years ago, you would have been arguing whether or not there was an individual right under the Second Amendment to keep and bear arms. We are not here debating that anymore. If you sit here 12 years from now, what do you think you will be debating, with respect to the Second Amendment . [laughter] [sighs] laughter] first, i hope we are back here to read this has been a lot of fun. [laughter] my guess is that we will still be working through the implications of district of and iia versus heller, think that will still be the framework. We will still be addressing the brandnew questions, which for a constitutional scholar or litigator, is about as exciting and challenging as it gets. Even the First Amendment was not particularly an active site for constitutional litigation until just a few years ago. If you have been underground the first two years, he would have seen the nativity or growth of a brandnew constitutional right. We are still in the early stages of figuring out the basic questions of the Second Amendment like its scope,. Those questions are not as permanent, because we have a century of case law, reams of scholarship and books, and articles. The Second Amendment is just catching up. Judge wilkinson described it in the case a few years ago as terra incognito, and that is still relatively true. We can have the same conversation with many of the same questions, whether it is 3d printed guns, or some new kind of Smart Gun Technology does the market is always changing and regulations are trying to catch up, but the constitution is there in the background you siloed or to it. Lets do it again in 12 years. Sounds good to me. [laughter] i didnt just want to debate the question about whether issuesis right, the real people are struggling with our not cot, it is, this question of , what do we do with it . What does it mean . How do we determine the right regulations that are consistent with the amendment and which ones are not . I think those questions will go on because those other debates you see nearly in every area of constitutional law. That is a challenge when given with a constitutional right, to determine, what does that mean, how absolute is that right, how do we determine the role of government in determining how to regulate right, in the area of the courts in reviewing the regulations but the government passes . Those are foundational questions about how to think about the law, and i dont think they will go away anytime soon. I do think that probably the next big issue that the Supreme Court will result in the next few years hopefully, because it is an issue that has divided the lower courts, is whether the Second Amendment encompasses the right to carry a firearm outside the home. , theis heavily the issue biggest nationwide issue, nationwide impact on which the lower courts are divided right now, and at some point, the Supreme Court has so far avoided it come about at some point they will have to step in. It is the distance of uniformity across the country. All beene but we have here today exercising our First Amendment right to come we understand the importance of the prosecution and the importance of this amendment we have been discussing today. I would like to thank the First Amendment discussion for being possible, and i would like to thank our worldclass experts who have taken their time to come up here and share their expertise with us. Thank you both so much for being here. [applause] announcer cspans washington journal, live every day with news and policy issues that impact you. Coming up tuesday morning, our guest from Kaiser Health news, discusses the difference between medicare for all and the public option. And as part of our podcast week, we talked with the producer of the New York Times podcast the daily. Watch live and 7 00 eastern on tuesday morning, and make sure to catch podcast week all week on washington journal starting at 9 a. M. Eastern. On wednesday, the host of global dispatches. The podcast host of ill tell you what. And on friday, the host of congressional dish. Heres a look at our live coverage for two day. On cspan at 10 00 a. M. Eastern, is look at the rehabilitation of violent extremist, from the u. S. Institute of. At 1 00 p. M. Eastern, the Federal Reserve act of st. Louis president on Monetary Policy and the economy. At 2 00 p. M. , if other of a slave tv reporter in roanoke, virginia, talks about his concerns about immunity for Internet Service providers, after video of his daughters death was posted and reposted online. On cspan2, indian ambassador to the u. S. On the countrys for agenda, thatcy is at 11 00 a. M. Eastern. At 12 30 p. M. , the Cyber Security caucus holds a discussion on threats facing the health care industry. President trump addressed the nation following to the Mass Shootings in el paso, texas and dayton, ohio, where at least 30 people were killed and dozens more injured. He condemned racism and and called on lawmakers to act on gun violence