Transcripts For CSPAN Dartmouth College Gun Rights Debate 20240714

Magna cum laude from rice university, masters degree from cambridge. Both of the people we had last week, although he did not take any courses from them. Joseph helped the briefing for the Landmark Supreme Court district of columbia versus. Eller in 2008 the district of columbia fire control regulation act of 1975 required, among other things, that all firearms be kept unloaded and disassembled or bound by a trigger lock. It also restricted those owning handguns except to the law. In a 54 decision the Supreme Court said it 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 erin murphy. Aaron murphy is a partner and litigator with washington, d. C. Law Firm Kirkland and ellis. She earned a ba degree from northwestern and a jd degree laude from georgetown. She has clerked for chief Justice John Roberts and argued for cases before the Supreme Court. In her first Supreme Court case, mccutcheon versus fec, the campaignfinance case brought by the Republican National committee challenging individual campaignfinance limits, erin won. She has also argued several cases before the federal appeals court. One she challenged sunnyvale california and the Second Amendment challenge. In this case the ninth u. S. Circuit court of appeals upheld sunnyvales law restricting the highcapacity gun magazines. A rejected 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. That case has now been usurped from California Law but it still has not been fully decided. Our moderator today is john garvey. John is an 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 john is the founding 2017. 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, etc. Of a newpass a variant hampshire bar exam during her last two years, and are sworn in the day before graduation. Let me ask that our speakers and moderators come on stage. [applause] john good morning. Its so nice to see all of you here for this debate. 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 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 so prominent in the United States that many people probably assume the issue has been raising the birth of our nation. The 1960s the Second Amendment was barely discussed in courts at all. Let me give you a brief overview to set the tone for what they are going to be speaking about today. In the 1960s, bobby seale and 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. Federal restrictions and new 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 militia related people, arms, 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 theSupreme Court in 2008 in case you heard referred to call the district of columbia versus heller. The Supreme Court held that 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. But 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. With the individual rights reading resolved, the question for the Second Amendment now is for 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. Erin murphy has counseled for the petitioners in that case. Joseph look or has filed a friend of the court brief in support of the other side. Before we get into the details, i would like to start with a andder question for erin joseph. The Supreme Court has said that the Second Amendment includes an individual right, but it is not unqualified and some restrictions are permissible. Given that, how should courts determine which gun regulations are constitutional . Erin . Erin good morning and thank you for having me here. Given the position that i will be taken in discussing these issues, it is a delight to be in a state that continues to respect and protect Second Amendment rights. That is something we are always looking for in all these cases and all of the states where i litigate. 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 United States. It has been a really interesting and challenging area to litigate over the past 10 years because we have seen so many jurisdictions that continue to pass extremely aggressive laws that really do not seem consistent with the notion that the Supreme Court recognized the Second Amendment is an individual fundamental constitutional right. That is 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. Many states through licensing to 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 the facts that it has been 10 years that the Supreme Court said that this is in fact an individual right, we continue to see a number of jurisdictions, and jurisdictions that have an extremely large population, that makes up for its large portion of the country. Even though there is a smaller number of jurisdictions that have responded to heller by, instead of ensuring protection of Second Amendment rights, actually passing ever increasing more aggressive and constraining restrictions on the right to keep and bear arms. One great example of this is the city of chicago. If you go back to the heller case it self, heller was about whether you can have a ban on the possession of handguns. The Supreme Court held that the 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 meanness appellate hes. Now pretty much every other individual constitutional right, whether actually 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 to 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 Amendment has any impact on states and meanest municipalities. That led the Supreme Court to its second decision, which is nearly 10 decades old, the mcdonnell versus city of chicago case, and which the court rejected that position and said, no, this is an individual fundamental right and states and municipalities must respect it in 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. Its absolutely important to understand how to use a firearm if you are 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. The city of chicago nonetheless continued to have aggressive laws. It was one of the first jurisdictions to have a complete absolute prohibition on carrying a firearm. Which is held unconstitutional held constitutional. And it continues to have extreme aggressive rejections today. Including being among the jurisdictions that imposes a special discriminatory tax on. Irearms on obtaining a firearm. The Supreme Court has said for decades that you cannot impose taxes on the exercise of a constitutional right. Sure, if you have just a general tax that applies to everything and incidentally reaches a constitutional right, then the tax can apply thereto. When it comes to the exercise of First Amendment right, speech, the exercise of freedom of religion, all these other areas, the court says you cannot have a special tax that singles out the exercise of the Constitutional Rights. That is trying to deter people from exercising rights they possess. Chicago and other jurisdictions have exactly that special tax a impose pretty much for the acknowledge purpose for trying to deter people from exercising a right that the Supreme 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 led to the Supreme Court deciding to hear a case this fall that will mark the first case in about 10 years that the Supreme Court has heard in this area. New york city has a restriction. They have a licensing regime that says that in order to possess a firearm within your own home, you have to obtain a license. A licensed known as 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 ammunition. Catch beyond even that is, new york city defines authorized to include only shooting ranges within the boundaries of new york city itself. Grand total of seven shooting ranges in the entire city of new york. A city of more than 8 Million People. This results in a restriction handgun cannot remove a from the limits of the city of new york at all. This is an outlier restriction this point found that no other jurisdiction in the entire country, city or state that has. There is no other state that says you cannot remove your firearm on the limits of this city at all, even to just take it next door to a shooting range that maybe 15 minutes away, if you are talking about someone who lives at the edge of new york city and wants to go into new jersey or out to long island. These are the kinds of 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 courts. Normally, when you are dealing with the realm of restrictions on an exercise of Constitutional Rights, the basic rule is, those restrictions are present doubly unconstitutional. Yes, it is not the case that you cannot regulate Constitutional Rights at all. You can have laws that passed muster, that impede in some respects on First Amendment rights and other rights. But generally when you go to the courts, the courts treat those laws as presumptively unconstitutional and its the governments burden to explain how they can be consistent with an do not unduly restrict the exercise of Constitutional Rights. In this realm, what we continue to see from the lower courts is that the lower courts are not particularly interested in figuring out what the right protects. They are instead really fixated on that language that was mentioned at the outset here said, not every law is unconstitutional in this area. And essentially what they do is treat that as the holding of heller. Its as if 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 any degree of scrutiny by courts at all. A couple of examples i will give you. If you go back to that language mentioned earlier from heller, what heller said is nothing in our opinion to be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill 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 arms. So you have three types of laws the court talked about that it said were presumptively, didnt even say necessarily, but presumptively unconstitutional. Taking from that the district of colombia enacted a ban on firearms and argued that the entire district of columbia is a sensitive place, akin to a a school or government building. The whole district is an area to which the Second Amendment 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 does not really apply here. This is particularly remarkable given if you go back to heller, the jurisdiction heller was the district of columbia. The district of columbia argued in heller that was not bound by the Second Amendment. The Supreme Court disagreed. Yet the district continue to argue that it remains not bound by the Second Amendment. 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 firearms. So they basically make it a condition of obtaining a firearm as a lawabiding citizen that you help a 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 just ipso facto donttutional, and courts need to look at all at the impacts that they have on Second Amendment rights. As we explained to the courts if thatenging that, were correct it would mean that a jurisdiction could impose a milliondollar fee as a condition of obtaining a firearm and the Second Amendment would have nothing to say about it. Thats an extraordinary proposition that no court would accept if we were talking about First Amendment rights. In the First Amendment area it is quite clear and has been for some time that as the court put it in one opinion, a tax of even a penny on the First Amendment right could be unconstitutional. We have courts saying that there is no scrutiny at all. No room for courts to 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 nextdoor, participate in a target shooting competition in a neighboring state, the court that we challenge 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. All of this pattern of activity 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 right as somehow lesser and entitled to lesser protection than other rights in the constitution. Yet, this is time and again of 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 treat it the same way that they would treat another constitutional right. We would submit that is just not a permissible way to go about applying the constitution. When 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 be, that all of these courts in all of these jurisdictions would be better served by spending some real time focusing on the 60 some odd 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 with the Second Amendment is unconstitutional. In fact the way the courts be looking at it is the same way they look at rights in other contacts and say, when the state wants to pass a regulation that impedes first the Second Amendment rights, just as in the area of the First Amendment rights, they start with the amendment of unconstitutionality, at it is the obligation of the state to prove to the court is what it has done is engage in regulation that is consistent with the scope of the right that the constitution protects. [applause] good morning, i would like to begin by thinking pete and john for that incredibly great opening. This fantastic lecture series, and all of you for being here with us this morning. It is a real honor for us to have a chance to discuss and debate these incredibly pressing and complex issues. I amall of you and for me thrilled. To have a chance to do it with erin murphy, who has really been at the forefront of some of the most important Second Amendment litigation in the country over the past you years. Erin and i come at this issue from different perspectives for a few reasons. I am a law professor by trade, not an advocate. I focus on more of the broad trend and less on specific cases. And i have Common Ground. There are large principles we agree on. Ways, itthat we part has to do largely with how those principles apply in practice. I thought i would start by clarifying based on her opening remarks, what i see 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 Amendment 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 Amendment seriously. I also think that part of taking the Second Amendment 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 celebrating its legacy or defending it as precedents. For the way it was reasoned and to its fall. But ive also written and will emphasize again here today that it is the law of the land. And it seems to be doctrinally secured. 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 us, and here i certainly include myselfwho support reasonable gun regulations. It may be here that erin and i start to part ways, at least in terms of what we emphasize from the heller decision. It is 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 purpose is disconnected from services in an organized militia. And the core and central component of that right is selfdefense in the home. But that is not all that the courts did. You have heard this from pete, john and erin. Said that right, like all Constitutional Rights are subject to regulation. Erin is absolutely right, and i anee that that is 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 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 even before. And Justice Scalias majority opinion emphasizes that. You have already heard this language a few times but it is worth reflecting on in the majority up and he says, nothing in our opinion should be taken to cast down longstanding prohibitions on possession by felons and the mentally ill, or the carrying of weapons and sensitive places, like schools and government buildings. Restrictions on the commercial sale of arms. I would add to that list elsewhere in the opinion he points to bans on dangerous or weapon bans and , concealed carrying. Part of taking the Second Amendment seriously and taking heller seriously is acknowledging and taking seriously about its boundaries, this is not an unlimited right. It has limitations. This is not an unlimited right is not a mean 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. Erin and i will probably focus our disagreements on particular cases with a set of outliers that involve unique laws or outlier laws. Like the new york law that erin mentioned, which is not unique and that new york itself has declaimed any interest in defending. I think it is important 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. Its probably closer to 1500 cases. In more than 90 of them the courts have projected Second Amendment claims. That is not because they are biased against them, its largely because a lot of those claims are week to begin with. Nearly a quarter of them involve felons, trying to get out behind the federal law which prohibits the lids 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. It is not bias against the right to keep and bear arms or against gun owners. Polls show, most americans support both the individual right to keep and bear arms and the individual rights, but they recognize that rights and coalition could exist. That peoplet support regulation, it is probably because they are stunned by the fact that every year when hundred thousand americans are shot. 30,000, last year almost 40,000 americans died as a result of gunshots. Some of those are selfinflicted. Some of those are people being shot by others. People being shot on purpose. Sometime people being shot by accident. The majority of done gun deaths are suicide at. What that means is, any effort to make a dent in this massive problem that everybody recognizes is a problem will require some flexibility. Sometimes we talk about gun control as if it is one thing. Practically,otely, politically or constitutionally feasible to think about it that way. There is no remote proposal to take away the 200 million to 300 guns in circulation in the United States. The question has to do with particular policies like denying under a people restraining order or suffering from a drug addiction. Those of the kinds of tailored policies that were going to need which even marginally, even if they make 1 of a difference could mean saving 1000 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 and might not be appropriate and a place i can or over in rutland. Ourink what we are seeing communities and states playing their constitutional role as what Justice Brandeis called laboratories of experimentation and trying to find solutions that work for them. Those answers will vary from place to place. What that means for constitutional law is that the unconstitutional law, the outliers that go too far have to be struck down. They dont get an extra option for being wellintentioned. , andthe cases are close the president is not clear and history is not clear, we should be cautious about adopting a rigid nationwide rule that might prevent communities from finding those solutions. So far, that is basically the route that courts are taking. They are doing so by applying what is generally called a twopart test. The first part of that test asks whether the challenged law in any way reaches guns or gun related activity or people who are covered by the Second Amendment. As we said, some arent. 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 any Second Amendment analysis. For those others, he goes on to the second question as to whether the laws justifiable for the burdens it places on individual rights holders. Even constitutionally protected conduct can sometimes be regulated. Even political speech can be regulated if the government can show a sufficient reason and there is a lot tailored to to that service. It is a little hard to generalize the position of courts are taking, but overall it looks like a sliding scale. So the higher the burden on the individual rights holder, the more the law entrenches on that 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 entrench on that core interest of selfdefense of the home comment its easier for the government to justify its position. Again, that is settled Common Ground. It is a test almost universally adopted across the federal courts. What i am presenting is something of a conservative argument against a potentially radical change. There is a potentially radical change. That hasative test been articulated in the courts of appeals by then judge, now Justice Brett kavanaugh. The way it would work is won when evaluating the constitutionality of a gun regulation based solely on reference the text history and tradition. Adopting this test by itself would be a mistake. I want to be clear about why. I think text history and very important to interpreting the Second Amendment, just as they are important to interpreting any other constitutional position or any other constitutional question. We begin with the text, history and tradition should always matter. Text history and tradition alone are unlikely to give satisfactory or useful answers in hard cases. It might actually open the door to a lot of unarticulated usual power and judicial discretion. I should also say that the test of tech history text history and tradition would not enforce gun rights anymore powerfully than the typical forms of high into the scrutiny that we apply to other Constitutional Rights. Judge kavanagh rightly emphasize that in his opinion, and people sometimes underestimate the degree the degree to which we have had done rights since the founding, and even before the founding. Englandthe statute of threw the 1300s, through the colonial era. We had in the colonial period here in the northeast, a law that effectively banned people from having loaded guns in urban bostonhe little theatre, and new york had extremely stringent gun laws. It expanded west to places like dodge city and tombstone, arizona. They made it illegal to carry your gun in city limits. Gun regulation is nothing new in the United States. Text,perly applied history and tradition could end up on hold upholding a lot of gun laws. My opposition to the text to be clear is not because i think it is irrelevant. Nor is it that the test is properly applied to be too stringent. Ithink the problem is that 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 on. Nothing in those words tells you whether they are protected by the Second Amendment. Nothing tells you whether a person under a Domestic Violence restraining order is among the people protected by the amendment. You might turn to history and tradition for guidance, but sometimes they are conflicting or silent. Heller is a good example. Nine justices, all of them brilliant, none historians, doing their best with history and look at the same stories and come to different conclusions. We run the same problem into if you ask historical questions about particular kinds of gun laws. Like restrictions on public carry. We find different answers depending on where you ask the question. In new england there was a tradition of regulating public carry much more stringent than there was in the south. But the south lead the way in constricting concealed carry. To is a judge supposed choose between these two different threads of american history, a number that could be averaged together. Then there is the obvious practical problem of trying useful comparisons from the late 1700s or the mid1800s to today. Especially with regards to a rapidly changing Technology Like guns. To doudges have tried this by trying to identify the lineal descendents of guns for the late 1700s to today, or the descendents of gun regulation. That is a hard thing to do. Judges are not historians, and judge do not have progeny or family trees. An ar 15 a is descendent of a musket . You look to their barrel lengths, how many shots per minute, the muzzle velocity. Those are hard questions. I think that in practice, what we will see is judges will answer them. Judge kavanagh says this i an analogy. There is nothing wrong with that. Theeason by an analogy all time. It is to find relevant similarities between two things. That puts a lot of weight on what judges see as relevant similarity. Views looked like yours, but maybe they dont. Maybe their intuitions are the same of yours, but maybe they are not. Maybe they are protective of gun rights or not. I think there is a reason to be skeptical of a test that says it is based on text, history and tradition, that i think it will boil down to a test of judicial intuition or judicial analyses. You can illustrate this with any number of hypotheticals are examples. Ask whether a modern grenade launcher is like a musket from the late 1700s. In some ways it is because you can lift it. It is a bearable arm. It is covered by the Second Amendment. It cannot be right because of its destructive power and not covered by the Second Amendment. I dont think that is a good way to chart. Not a good way to chart where it goes. I think both to gun owners sent to regulators, it is the functionality of arms at issue. What we care about is whether a law functionally interferes or materially interferes with peoples abilities to exercise their Constitutional Rights to arm their self in defense, especially in their home. The questions we should be asking is not whether an ar 15 is like a musket from the late 1700s, we should be asking if the government bars people from buying ar 15s, but allows them to buy other weapons, does that interfere with peoples abilities to defend themselves in their homes . Has the government shown a good enough reason that the law is showing to tailoring that reason . Those strike me as traditional legal questions. The kinds of questions a judge my answer. Let me say quickly in closing that as was emphasize, we are talking about the constitutional the Second Amendment in particular. The Second Amendment is not the major obstacle to further gun regulation in this country. Supporters of reasonable gun regulation are not and have said that losing a ton of cases in the court, the primary obstacle to further gun regulation is political. The Second Amendment, and we agree on this, the Second Amendment preserve space for regulation. It is a question of politics with how we want to fill or knots fill that space. There have been strong pushes for certain gun regulations in certain parts of the country. The postpartum and movement is a good example. Young people say prevention of gun violence is a top priority. The second is that amendment properly interpreted and has interpreted so far and allows us to make those choices. Thank you, very much. [applause] john thank you erin, and thank you joseph. I have questions for you in followup. As lawyers we are very familiar with different burdens of proof. We look to reasonable out. We look to more probable than not. At an we know as lawyers, depending on the burden of proof, a case may be harder or easier. Do we agree . In theread your briefs universe new york case we have been discussing. And i understand that you disagree with the twopart test, is that correct . It is probably more nuanced than that. I think our principal problem is with the way the test has been employed in the execution of it for lower courts. Abstract, the test seems innocuous per you start by asking what is being regulated is within the scope of the right and then based on that you decide on the level of scrutiny. This burden of proof question. If you look at courts, if you take the first part of the test, there are numerous courts that have, when asking that question of whether something comes in the scope of the right, say, well, heller had to do with handguns in the home. So that is the full go of the right. Stop. We are not interested in was it tells us something else. We are we will assume nothing else is. Whether it is having a handgun outside of the home, whether it is taking it to a firing range. You cannot have a test that purports to ask about the scope of the right, it then engages in no actual meaningful analysis of the scope of the right. One of the best illustrations is, the vast majority of the most significant cases that have dealt with Second Amendment challenges are not the ones that everybody agrees rehab criminals that peoplements dont think are viable arguments, but the ones that deal with outlier laws. You have just assumed without deciding the answer to the question of what the scope of the right is. It is extremely problematic to start a constitutional analysis by not even answering the question of what this what the scope of the constitutional right is. I think that is the first problem. The second problem that then judge kavanagh was pointing out is, when you get to this after that, once they have assumed without deciding that there is maybe something within the right, they ask what level of scrutiny do we want to apply . How big of a bird and we want to impose on the government . In every single case they apply the lease highend rationale ightenedt he rationale. There is no case in which the court has concluded it will preside strict scrutiny, the kind when applies when any under individual right is at stake. Say, and willy assume without deciding that we will apply and media scrutiny as opposed to know scrutiny at all. Your he,have is, into a test that some like its asking the right questions. Whats the scope of the right and how significant is the birding. Burden. They say they dont care what the scope of the right is. So long as you still have what heller promises you, some ability to have a handgun in your home, nothing else is a meaningful burden on the right. If you had a preordained conclusions that way, you have a problem, the cousin is not applied in a way that takes seriously that you have to take the law before you and say, is this law consistent with the constitution, not, is it consistent to what the Supreme Court struck down in heller. John do you agree that the courts are subjecting this to a secondclass kind of status . Joseph i think it is a hard question to answer in the abstract. Casese you have a set of that is as large as we have had heller mma, second there will be outliers on both sides. There are some cases, and i agree with erin, where they have rights to bear arms. I think there are other cases where it is in the other direction. I think my concern and objection is with labeling it a trend. I dont see a trend. The generalization is where i would push back. It is true there have been few successful Second Amendment challenges. But the reason for that i think has mostly to do with the fact that so many Second Amendment challenges, the ones that form the bulk of the litigation are week to begin with. We should not expect them to win. About a quarter of them are felons trying to get around the felon prohibition of federal law. It is not surprising that 99 of those cases are losers. That drags down the average of success. Most Second Amendment challenges are brought by criminal defendants that have any incentives to bring any claim they can. They tend to lose their Second Amendment claims just like they lose their other constitutional claims. A big chunk are pro se litigants, litigants without lawyers. When you put those together, its no surprise that the overall success rate looks low. But that does not mean the right is being treated as secondclass. It means there is not a lot of strong claims being brought in the first place. One reason for that is that and this is going back into mosthing erin said in parts of the country there is not a lot of stringent gun regulation to challenge. It is not a target stringent environment to challenge a second litigation. It would be unlikely to seek Second Amendment challenges in states like New Hampshire, which i gather has nonstringent and regulations. States thatme from are more prone to regulations. New york, california and so on. Particularom in on classes of cases you will find a much higher success rate. You will find it in those courts, including the second circuit, the fourth circuit, the ninth circuit and easy circuit which are other more liberal circuits. That is where most of the successes have been. Since i do have cases i have to plug my own scholarship. Grad, a team of researchers, we entered 100 questions about every single available postheller case until 2016. More than 1002nd amendment challenges, which gives us a broad view of what is happening in the lower courts. The data confirmed that impression that a lot of these cases are weak to begin with. You focus on restrictions on public carry, parties who are represented, the success rate goes up and starts to look like it does for every other constitutional right. I do not see the secondclass treatment manifesting broadly. There may be pieces that have gone too far, and where that happens, the Second Amendment stands as a limitation. To generalize it as a way to change the way we treat all Second Amendment law would be unsafe. If i can jump in, to be clear, i only litigate i almost only ever litigate civil cases. We are not bringing cases that are these cases you are referring to. On the ground, i can tell you, it is not perspective that these the meritorious cases that are challenging new, novel restrictions as opposed to cases being brought decades after the fact by people convicted along time ago, these are not faring the way they do if you are bringing a First Amendment challenge. I litigate a lot of cases out of the ninth circuit. Anytime you get any kind of victory, immediately, you start by arguing before a threejudge panel. If you happen to get the threejudge panel that actually rules in your favor, immediately some other member of the court will if the parties dont do it, will spontaneously call for the court to reexamine the case and have a new hearing to decide whether the panel must have been wrong to rule in favor of the party supporting Second Amendment rights. I had this in a kit we litigated a case we litigated against the state of california. We won an appeal regarding a challenge to a magazine capacity band. The court, a judge spontaneously said, we have to reexamine it. The state of california said please dont. Only after the state itself said we dont want you to reexamine ,his did the Court Finally say we will leave this alone. You see this time and again. There are certain courts dealing with the jurisdiction that are the most hostile in terms of passing the laws. They continuously seem to rubberstamp whatever it is the state want to pass. Court accepts your position on how to review the rights guaranteed from Second Amendment. Do you feel it is more likely there will be successful challenges to regulation . Sure. We have not definitively firmly advocated for approach in terms judgewe are happy to take kavanaugh a pass approach. A are happy to take reasonable approach, one in which the courts generally asated laws unconstitutional. One way or another, our principal what we have been trying to make is whatever tested is you are going to adopt, it does need to take very seriously the history and look at the threat the way heller did, asking what its scope is, what kinds of things it protected when the amendment was ratified, what the people understood it to be, and if you do that, you will find a lot of these restrictions are very inconsistent with the historical scope. We think there are a number of laws that have been challenged, that courts have allowed to stand that they should not allow to stand and they are only allowing because they are not applying the same type of rigorous scrutiny that would be applied if you were dealing with rights under other provisions of the constitution. Mr. Garvey heller involves the handgun, but you both mentioned today that there are other types 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 of lop off the extreme positions. It is clear that there are some kinds of weapons that can be regulated and banned without triggering Second Amendment scrutiny. Heller is clear about that. History is clear about that. It is also clear that there is at least one class of weapons, handguns, that cannot be banned. Even if doing so would save lives. We are left with three categories. The ones that definitely can be banned, and the court and heller seems to equate those with dangerous and unusual weapons, those being not in common use. Then there are the ones that cannot be banned, which heller says is 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 might be regulated if the government can show good enough reason. One class of weapons that is often litigated here are the socalled assault weapons. I say socalled because the definition is sometimes hard to track down. People often mean Different Things when they talk about assault weapons. In those kind of regulations, the relevant question again is what does that ban do if a jurisdiction were to ban assault weapons, what does that do practically for peoples ability to effectuate their Constitutional Rights . To treat any class of arms as a natural category that is immune to prohibition is a mistake. That is not what heller does. Heller says handguns are immune to bans because they are the quintessential selfdefense weapon. That means ar15s and the like are not. They should not be treated the same way. You have to treat different classes of weapons differently. In practice, a lot of this comes down to details. If you are regulating a highcapacity magazine ban, what really counts as highcapacity matters. Sometimes, jurisdictions set that number quite low. Some of those have been struck down, i think probably rightly. How mucht is 12 or 20, does it really 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 implication of heller itself. 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 the court was saying that in the context of rejecting the argument that there is no need for people to have handguns so long as they can possess long guns. With the court said was, no, this is not a right that 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 you can have long guns, you have a constitutional right to handguns because they are a quintessential selfdefense weapon that is owned for the lawful purpose of selfdefense. Now, what you then have is 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. If you look and drill down on some of these definitions about what it is that constitute the socalled assault weapon and what it is courts look at when trying to say that these weapons are somehow categorically different, i mean, essentially, it is just 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. Yet what you have our courts saying, oh, all of these things make them more effective and therefore more dangerous and therefore take them outside the scope of the constitution. That is quite a counterintuitive proposition if what youre thinking about is the notion of being able to own a particular firearm so you can effectively use it if you actually were to need it for purposes of selfdefense. I do think the better way to come at this issue is the way that heller itself did by saying what kind of firearms are traditional with the historical scope of what it is that we consider this right to protect . Firearms you use for selfdefense. If that is the kind of firearm you are dealing with, it is protected. The state does not get to pick 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 would like 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] ms. Murphy this has been an extremely hotly debated issue and one of the biggest issues of litigation in the past five five to 10 years. As i mentioned earlier, there is point, 42at this states that are right to carry , but there are different types of restrictions. What we tend to see most often arey in those restrictions what are known as kind of good cause regimes that say you can get a license or permit to carry only upon a showing of good cause, which typically means you have to demonstrate that you face an actual documented threat to your safety that differentiates you from ordinary individual lawabiding citizens, that you can come in with Something Like, hey, 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. Ons. 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] you live every day with news and policy issues that impact you. At 7 00, julie ratner from Kaiser Health institutes discusses the difference between medicare for all and the Public Health option. And we talk to the producer of the New York Times outcast the daily. Watch live at 7 00 eastern on Tuesday Morning and be sure to catch podcast week on week at 9 00 a. M. On washington journal. Thursday, we host the podcast cohost of ill tell you what. And on friday, the host of congressional dish. Washington journal mugs are available on the spans new online store. Go to cspan. Org and check on all the cspan products. While Congress Stand in recess, House Speaker nessie pelosi and Senate Minority leader Chuck Schumer are calling on the senate to take up the legislation passed by the house earlier this year in response to the Mass Shootings in texas and ohio. Mightpossible lawmakers take the opportunity to speak on the issue tomorrow when both chambers meet for a brief pro which typically occur without any votes or legislative debate. As always, we will have coverage starting with the senate at 9 00 a. M. Eastern on span to followed by the house at 3 30 p. M. Eastern on cspan. President trump addressed the nation following two Mass Shootings in el paso, texas and dayton, ohio, where at least 30 people were killed and dozens more injured. He condemned racism and called on lawmakers to act on gun violence. Pres. Trump good mornin