comparemela.com

History of gun regulation and how the Second Amendment has been interpreted over the citys. Good morning, and welcome. Its a pleasure to welcome you to this briefing hosted by the National History center. Im karin wulf, im the executive director of the institute of Early American History and culture at william and mary and ill be introducing todays speakers and moderating the q a afterwards. Please note that we have distributed cards, theyre on your chairs. And the purpose of those cards is to facilitate the q a. Jeff is standing outside. Hes waving. Jeff will collect those cards for any questions that you have and ill facilitate the discussion the speakers. Were looking forward to a very valuable hour of presentation and discussion. This briefing is part of an ongoing series sponsored by the National History center that brings Historical Perspective to issue confronting congress and the nation. The center is strictly nonpartisan and as such the purpose of the briefing is not to advocate for any particular policies or public positions, but to provide Historical Context to help inform policymakers and the public. As ever, we are grateful to the foundation for funding this program and to the office of congressman conley for booking the room. Todays subject is the history of gun rights and regulations in america. The depth and complexity of the politics of these or any subjects should not make us shy from the historical record. History is whether we are aware of it or not, the context for every decision we take, whether individual daily ones such as assumptions that the trains will run on time or not, based on your historical experience, or collective political ones such as when and how to engage in conflict. Elevating Historical Context to the explicit, asking whats been the circumstances which give rise to the current situation, we can better appreciate why and how we are where we are. As a historian of the 18th century, im acutely aware of the sharp juxtaposition of the relevance of my field for contemporary americans. Early america is both foundational to our democracy and yet often confined to a study of the eastern parish colonies and the politicians who carried those colonies into our nation. The early america shows an equally foundational but more complex and challenging picture of how our great nation emerged. History offers rarely rarely offers a straight forward answer to questions we pose from later and typically a very different vantage. To paraphrase the haitian scholar, history is not waiting in a kitchen cabinet, waiting for us to open the right door, and we can see the past in all of its fullness. Our comprehension of the past relies on the preservation of the historical record. And then on our ability to analyze that record which is often shaped by what is understood to be worthy of analysis. We can, for example, track the progress of legislation through the congressional record and also through records retained by the offices of members and committees. But with you know, or rather you know, that legislation is also the product of e numb rabble efforts, energy, how are those captured . What is the history . We understand it afresh using new information, perspective and tools. As the Great American historian likes to say, im a fan of revisionist history just as im a fan of revisionist medicine. Lawyers and historians view and use the past in distinct ways with the former by vocation an instrumental view of the past. Were fortunate today to have with us a historian of the law. Saul cornell is chair in American History, he earned his philadelphia at the university of pennsylvania. His first book was a study of the other founders, antifederalism and the dissenting in america. Hes published extensively on the Second Amendment including his 2006 book, a well regulated militia, the origins of gun control. His articles have appeared in journals. He authored the chapter on the right to bear arms in the oxford handbook of the u. S. Constitution. Darrell miller is professor of law at Duke University school of law. He was a marshal scholar at Oxford University and earned his j. D. At Harvard Law School in 2001. Hes the author of the positive Second Amendment, rights, regulation, and the future of heller. He has been cited by the Supreme Court of the United States, the United States court of appeals, the United States District Court and in congressional testimony and legal briefs. Were going to begin this morning with darrell. Darrell . Thank you so much for that introduction. And thanks to the National History center for this invitation to speak to you. I should start with a disclaimer which is im not a historian. Im a legal academic, im a lawyer who was really interested in the way history influences the way legal doctrine develops and professor cornell is going to be much better at actually speaking with authority in detail on the actual historical regulations. Instead i want to offer a framing for you about how the Supreme Court does and may use history to justify its conclusions. So in the 2008 decision, district of columbia versus heller, the high court resolved one very important issue and that issue was weather the Second Amendment right to keep and bear arms applied to rights to have and keep an arm for personal purposes, like selfdefense in the home, or whether it was solely related to participate in an organized group like the militia. And they said that the right is an individual right to have and keep arms for personal purposes. But the late Justice Anthony scalia also said, quote, like most rights, the rights secured by the Second Amendment is not unlimited. A long history of firearm regulation, he said, shows, quote, the right was not a right to keep and carry any weapon whatsoever in any manner whatev whatsoever and for whatever purpose. We do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing should be taken to cast doubt on longstanding prohibitions on firearms held by felonies and the commercial sale of arms. In his opinion says these examples he had just offered were that, examples, quote, our list does not purport to be exhaustive. What the limits on the Second Amendment are and where to find them has been the subject of litigation now for a decade in the lower courts. And the courts have mostly converged on what is known as a twopart test. This twopart test first asked whether the regulation implicates the Second Amendment at all, in other words, does the Second Amendment cover the matter in question . And if it does, well, theoretically, thats the end of the case. And frequently this first part of the twopart test relies on some educational of thistory ans overall purpose. For example, heller says that concealed carry can be prohibited. Justice scalia used the prohibitions in his opinion saying, quote, for example, the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment. Therefore, according to heller, it does not raise a Second Amendment question at all because theres a long history of regulating concealed carry. Similarly, suggests that machine guns can be prohibited because machine guns fall within a historical prohibition on the carrying of dangerous and unusual weapons. Its not that these regulations on concealed carry or machine guns require some other justification to support them. These laws are just categorically constitutional under the Second Amendment in the same way that prohibitions on extortion or securities fraud are categorically institutional under the First Amendment. Now if the Second Amendment covers the regulation at issue, the second part of the task asks whether it burns the right to keep and bear arms. This is a protection question. And typically judges apply some means in scrutiny to this protection question examining the purpose of the legislation and how tightly the regulation fits its stated purpose. If the regulation burdens too much core Second Amendment activity, its unconstitutional. If its burdens are minor, then the regulation can stand. A proma ambitihibition on posse firearm with obliterated serial numbers, but the regulations burdens are so minimal that it can survive the challenge h. Some justices have indicated they believe the second part of this twopart test is impermissible and have advocated a approach that would rely solely on history and tradition. Under these tests the load star would be whether there are some pedigree or feeling that some historical analog to decide whether a regulation was constitutional. Now that could change the type of questions that we might ask in a Second Amendment case. But as Justice Kavanaugh himself said in the opinion he wrote as a d. C. Circuit court judge, just because gun regulations are a history and tradition, does not mean that governments lack flexibility or power to enact regulations. According to the now justice, he says, quote, governments appear to have more flexibility with a historical test than with other kinds of tests. What does Justice Kavanaugh mean that history may provide local governments more flexibility . As professor cornell will note, theres a long history of regulation in america and in addition to regulations on the types of arms that people can possess, there was regulations on how they could carried, where they could stored, how they could stored, as well as various licensing regimes. That said, Justice Kavanaugh is clear in his opinion that the Second Amendment does not only permit those regulations that exist only in 1791 any more than the Second Amendment only protects those kinds of firearms that exist in 1791. As he stated in his dissent, quote, when legislature see to address new weapons that have not traditionally existed or to impose new regulations because of conditions that have not traditionally existed, there obviously will not be a history or tradition of banning such weapons. That does not mean the Second Amendment does not apply to these weapons or in these circumstances, nor does it mean that the government is powerless to address these weapons rather in some cases the proper approach is to reason by analogy from history and tradition. So to give a hypothetical but more concrete example, there were no commercial airliners obviously in 1971. Indeed, it was only in 1961, just over 50 years ago, that congress printed the carrying of concealed weapons into the cabins of a commercial aircraft. It is possible that 50 years is sufficiently long time to be long standing and therefore constitutional but even if it were not, i would wager that most of us would consider the inside of a jet plane a sensitive place. Under a second step of the twostep process, that kind of regulation may be upheld on the grounds that it is dangerous to have guns in a plane, there would be evidence about the dangers, there would be other kinds of expert testimony but not necessarily historical testimony. If instead we used Justice Kavanaughs approach to analogize from history, we might come to the same conclusions for different reasons. First there are numerous regulations going back and extending into American History both in the 18th, 19th and even the 20th century that prohibited firearms in fairs, markets and other places of amusement. A cited example of such a regulation is the statute of north hampton. With exceptions for government officials, quote, no man great nor small what condition could go with arms in fairs, markets nor in the presence of the justices or other ministers and that would be under penalty of imprisonment. You could say that theres a longstanding practice dating back to our English Common law of regulating firearms in places where people congregate in confined quarters. The cabin of an airplane is a modern version of the kind of place that people congregate in confined quarters and there have prohibition on loaded firearms are constitutional as well. Of course how broadly or narrowly to look at the analogy is key to this kind of interpretation and that kind of judgment is outside the scope of my brief comments here. Its just to say that history is likely to continue to play a significant role in the Second Amendment litigation, whether the courts end up keeping the twopart test or adopting what Justice Kavanaugh has advocated, a strict text history and tradition test and having a good sense of the facts, the breadth and scope of regulations is essential to make informed decisions about our post heller Second Amendment Juris Prudence. [ applause ] thank you, all, for coming out to this briefing. I know you have busy lives so we appreciate you taking time away to spend this morning with us. My charge is modest. I have to summer rise 500 years of the history of gun regulation with whit and con sigs which im not sure lynn manual could do that. But i wont try to wrap it. Ill do it in a narrative form. So when you look at the history of gun regulation, which is something ive spent a good deal of time over the last 20 years, what immediately jumps out at you is for as long as there have been guns in america, they have been regulated. Not only did the english settlers who came over to america bring firearms, they brought a concept of law that concluded firearms regulation and one of the examples is my colleague mentioned, limits on the ability to travel armed in certain areas. In some cases you might analogize them to sensitive places, you cant bring your gun in front of the kings ministers or in courts, or fairs or markets which probably analogizes as darrell suggested to populous areas. We have a common law tradition that was carried over. Parliament also regulated firearms and then the colonies themselves and eventually after the american revolution, the individual states and finally the federal government. When dealing with the history of regulation, were dealing with multiple levels of government action, difference spheres and i point this out just to say there are many tools but there are different tools available to Different Levels of government and we need to sort of keep that in mind. So one of the things that seems so unusual when you step back and look at the current debate about firearms policy, the debate tends to be played out as if the choice is regulation or liberty. Whats so interesting from the point of view of the founding generation is that there is no liberty without regulation. In fact, the ideal of the 18th century was something they called wellregulated liberty. That term is probably not used as often in modern Juris Prudence. The closest term we have to it is ordered liberty. The notion is we fear tyranny but we fear anarchy. So thats the kind of framework i think we need to always have in mind when were talking about the history of gun regulation. Indeed, i would argue, if you read the text of the Second Amendment closely, and i think there are very few texts in american constitutional law that have been poured over as closely. Its one of the provisions that there was a grammatical brief filed, they gave the court the lesson in the absolute, which is a latin construction. You dont see that happen that often. I went to progressive school, i wont go into anything about the absolute. We sort of used grammar as we felt, you know. We use commas and colons as they filled our needs. So im sure that almost everyone here could recite the Second Amendment, but i wont make you do it. A well regulated militia shall not be infringed. People who favor stronger gun regulation are fonder of the first part of the amendment. And the part that gets left out and the one that has drawn my attention recently is the middle, security of a free state. So i think, again, thinking about this idea of wellregulated liberty, whatever policies we design, whatever goals we do, whether its an expansion of run rights or gun regulation, both of those policies to be true to the Second Amendment have to further the security of a free state and, you know, how we interpret what promotes greater security is something, thats why we have a political system to argue that out to gather facts and debate them. But i want to stress that theres not just one liberty issue here. There are competing liberty issues. The liberty that gun owners claim about the right to keep and bear arms, liberty that we the people have to legislate and enact laws to governor ourselves and then a liberty interest that we dont hear so much about but was absolutely essential which is the peace, the right to live in a peaceful society, the right to live under a regime where the rule of law, not a rule where the state of nature and violence predominants, those are all important values. With that sort of global framework in mind, what kinds of laws do we see when we go through the long history of gun regulation. Well, there are many kinds of regulations under common law. Weve alluded to some of them. A number dealt with where you can carry firearms in public. There was statutory regulations. One of the first things any colony or any town did was to pass laws about regulating the storage of gun powder which poses serious Public Safety concerns. Some localities passed safety storage laws, for instance, boston in 1786 passed a law that you could not have a loaded firearm in a dwelling because it posed a danger in case of a fire. What does that mean . Is that law mean that a modern safe storage law is constitutional . Is it different because Firearms Technology has changed and bullets dont work the way muskets work . These are issues that require fleshing out. But the purpose of this briefing is to say, theres a long history of gun regulation, theres a lot of interesting things that have been tried over the years and we need to be mindful of them. There have been regulations about the militia and not only were you required to purchase a firearm, government imposed that requirement on you, those militia guns could be inspect. And there are a variety of regulations about the sale, transfer of firearms, particularly as we move forward in time in the market revolution expands and the types of weapons expand. Im good. Okay. One area of gun regulation that i just want to draw your attention to because its probably the most underutilized to the way we think about it. Its one of the most anxiecient ways of achieving Public Policy goals is taxation. The state militia act were the federal one was the first unfunded federal mandate. You were required by law to purchase a firearm. If you failed to do that you could be penalized. Its like the analog of the Affordable Care act, 18th century style. If you think about it, the great thing about taxation as a policy is it gives you both carrots and sticks. For instance, you can encourage safe gun ownership, m give someone a tax write off for buying a gun safe as you could impose, you know, a higher tax on a weapon that is more potentially dangerous if its out in the civilian population. So, i would encourage you to think about taxation because, again, taxation gives us a variety of tools to encourage Public Policy, there are ways of preserving privacy because we all file our taxes, you can provide incentives and its one of the oldiest forms of regulating firearms. Its received almost no attention since the new deal and the imposition of certain taxes on machine guns and other weapons during that period of our history. The other point ill make is that for the most of our history, really up until the 20th century, most gun regulation was done either at the local or state level. Theres very little federal firearms regulation until the modern period except for regulations of militia. So without government intervention, we wouldnt have a firearms century. It was because the government pumped money into the firearm industry that we have it. Another part of the history thats been hidden but is important to bring forward, this idea that somehow government and guns are on a collusion course, thats a recent problem in American History. For most of American History, governments, regulation were complimentary, if you had to summarize what was the dominant position in the 18th century, it would be that most americans were probably pro gun and pro regulation. The problem we have today is you have to choose one or the other side. But really the only way to live in a society where there are a lot of guns is to have a society where there is effective gun regulation. If you think of examples around the world where populations have lots of guns, israel, switzerland, they all have very robust regulatory regimes. T this idea that only with regulation do you actually achieve true liberty, that is, i think, the most important takeaway from studying gun regulation and there are lots of examples through our history, how we adapt them to the circumstances of today, those are complicated questions, but history does provide us a lot of interesting examples to at least think about. Thank you very much. [ applause ] jeff is there are still a few seats up here if you would like to come sit down. Feel free. I can see at least two up here and two in the middle over here if you would like to sit. As i said at the start of the briefing, we provided cards for you to write down any questions and then send them forward and ill be happy to field those and ask some questions of our presenters. Jeff is standing here, my lovely assistant, who is going to collect those cards and hand them to me. If you have a card, if you want to pass them to the end of your row and he will collect them. And i cant believe there are no questions. That would be odd. Lets just say. While youre pondering this, and i hope while youre writing voluminous questions on your cards and while jeff is collecting them, im going to start with just what might seem very basic question, but both birds eye view, im interested in this question of analogy and how this notion of historical analogy comes to be. Darrell you started off by talking about the specific invocation of historical analogy as significant because obviously we live in a world which is technologically as well as in so many other ways different from the world of the late 18th century. How does historical analogy come to have a legitimate place in Juris Prudence . Excellent question and so i guess theres the theres a couple of answers. One is the Interpretive Movement of originalism which focuses on history either at the linguistic level, what do the words mean, or as heller seems to indicate, also kind of a contextual level, how do you understand these words and the context. In fact, Justice Scalia in his concurrence says you know what the boundaries of the Second Amendment are by the regulations that exist. And so thats the sort of thats the end point with respect to history, especially in this space is, its being driven by the commitments of the majority in heller and in mcdonald and were trying to figure out, well, at what level of abstraction do we talk about . There are no jetliners in 1791, but there is concern with firearms in crowded areas. So theres not thats the Juris Prudence point, what is if youre doing to do this kind of work, this historical analogy work, what is the relevant level of generality at which to make the decision and thats something that, you know, justices and judges disagree about. Thank you. Thats really helpful and interesting and i have at least ten followup questions myself. But im going to go to the cards here. I was a specific question for you, saul, which is about historical views on restricting gun ownership by age. Can you speak to that . Excellent question. So this both sorry, thank you. This raises the analogy issue and raises an empirical question. Lets if you were to look through statutes about the militia from the colonial period, you would notice that the militia is composed of white men roughly between the ages of 16 and 50, depending on the state. So now when we try to make sense of what that means one of my favorite parts particularly in massachusetts and in virginia is that faculty of Harvard College are experimented from the militia. Once again, the wisdom of the founders prevails. The question is, if government can force you to participate in the militia, does that mean you have a liberty interest, that you have a right to carry that gun, or does the government have the right to compel you or prevent you from carrying a gun if you fall outside of a particular age. We get back to darrells question about analogy. Now, if we go forward into the 19th century, we actually find examples of limits on purchase of firearms to minors. And so then we get to this other interesting question when heller says longstanding, where the is the metric for constitutional time . When is a short constitutional time, when is a long constitutional time . Do you go back to the 18th century to demonstrate longstanding, go back to the civil war era. If a particular weapon only became popular in the early 20th century and law is passed the moment it penetrates the market, does that mean the clock starts in 1915. There are a host of issues that have not been theorized about what some of the key constructs in heller, what they actually mean and how we would apply them. Thank you. And you should all feel free to ask for additional cards if you want followup questions too. Wave your hand there. Not to be a pingpong, but im going to go back to you, darrell. Is there any indication, a questioner asks, that kavanaughs approach to the Second Amendment, by historical analogy and i suppose otherwise, has other adherence on the Supreme Court right now . Im a terrible Court Watcher and so i dont know. I suspect without having any sort of inside knowledge that perhaps Justice Thomas would be sympathic to this approach, perhaps justice gorsuch. I have really strong doubts that there are five justices that would go all in on a strict history approach to the Second Amendment. But i dont think thats the whole game, right . Its the fact that it is in the water in some sense, ends up shaping the other kinds of questions that get presented to the court. Why . Because you might if you know that some of the justices are inclined to be skeptical of some other type of test, the briefing is going to look different. And so the justices can only make decisions on what they see. And so whether or not you have, you know, five votes for a strict history test, doesnt necessarily mean that history wont be influential just as a matter of practical Supreme Court litigation. And i say this as a former litigator but not a Supreme Court litigator. Thank you. As we were talking on our walk over here, history is itself kind of a contested terrain. There is information we can find in history, but what the sources of that information are and how they can be contextualized are radically different and thats not because anybody is necessarily trying to pervert the course of truth, but because we can argue about what the sources of the past might mean. Saul, a question for you. I just managed to lose it. There we are. The First Congress spent more time debating militias than the Second Amendment, how do the courts consider those debates and the relative weight of those debates in their interpretations . Another excellent question. It really depends on what your juries prudential theory is. One of the most interesting things about the decision, we had two versions of originalism. We had Justice Stevens more intentionalist version of originalism and Justice Scalia was more concerned about dictionaries and what went on in the antibellum period. Now, theyre different interpretive modes of analysis, different theories of originalism. The scalia version seems to be the one that most originalists, at least in the academy are exampi championing these days. It comes and goes like fashion and probably less quickly. But it will like so many things, there will be a backlash, a different interpretive modality that will emerge. For the foreseeable future, briefs will be written in many, many cases and will be written in anything touching on Second Amendment and gun issues. Can i weigh in . Please. I think its now pretty clear that heller is a much better decision in terms of its justification, if abandons the originalist. About how people understand rights with respect to guns, its a much more defensible decision than to say, well, all this discussion about the military militia in the 18th century was defense against criminals and burglars because its not in the record. In some sense, Justice Scalia, you know, was trying to trying to meld two different lines of reasoning, one, having to do with his originalist commitments and the other half having to do with the belief that the Second Amendment protects guns the ownership guns for personal purposes and these things didnt tightly fight together if they had said that things changed in the 20th century, that would have supported the opinion just better. Yes, i did forget that part about turn off your phones. I want to follow up with a different question about localities, actually which is back to darrell, your thoughts on laws and do localities, the example that is cited on the card is pittsburgh, stand a chance of local ordnances, to what extent will those will local restrictions fall before constitutional argument . Well, the Second Amendment is the supreme law of the land and its incorporated through the 14th amendment due process clause. If theres a conflict because the Second Amendment and the 14th amendment and a pittsburgh regulation, the pittsburgh regulation falls, thats just basic constitutional structure. Maybe im not understanding the level that were talking about, if the question is about if the if a state legislature wants to create more rights than what the Second Amendment would protect, thats within the domains of what states can do. If states want to say, we authorize concealed carry, guns everywhere, you dont need a license, they have the authority to do that. But its not because of Second Amendment requires it, its because its positive law. Thank you. One of the great joys about working on this issue, as a historian, is you get to appreciate irony. Irony is the great master trope of the historian. The great irony about this debate is, when you talk about guns, some of the things you could have predicted no longer start to play out the way you would expect it. Conservative constitutional theory has been very focused on reducing federal power and restoring power to localities and states. That was the driving force behind the new federalism. If you look at Something Like concealed carry, here you have consecutive advocates of gun rights wanting to endow the federal governments with power that would have made barry go goldwater have a stroke. The idea that once upon a time many regulations were done locally or at the state leg, we have moved. Its the consecutive side of the spectrum have moved us away from allows localities to enact a variety of different kind of firearm regulations which is ironic, what its significance is a complicated question. But once upon a time we did have the ability to say, localities will do this, states will do this and the federal government will do that. But we have slowly been eroding local control and of course, interesting, theres a pendulum swing, we see the rise of the Second Amendment sanctuary counties as another example as people pushing back against national, federal, or state regulation. So it just makes the subject of the Second Amendment endlessly fascinating if youre on the sidelines writing about it. You guys who have to make laws, my heart goes out to you, because its complicated. That actually is the true trope of the historian. Its complicated. Its not irony. Which is not always of great use when youre trying to make law. No. Okay. All right. Im going to save this question about this is a big question about the politics of legislation here. And im going to go back to this question about security. And im going to rephrase. I apologize to the person whose question this is and im going to ask first darrell to comment on this security, the emphasize you placed in the middle of the Second Amendment. And the question about what how security is interpreted and debated within legislation and case law and whether that is changing over time as well, that is whose security, collective security, individual security . Well, as professor bloker and i in our book sort of try to say, its the security is a textual hook to try to slightly reframe or at least understand what the Second Amendment is for. When you say, well, whats the Second Amendment for, people say self defense. But it cant be that simple. The example i go to is a prisoner that is incarcerated has moral rights and interested maybe even legal rights to defend themselves against an attack in prison, but we dont think of the prisoner as having Second Amendment rights. Unlike other kinds of rights in the bill of rights that a prisoner clearly does not shed by being incarcerated. Theres some separation between just selfdefense and the Second Amendment. So understanding that then we have to sort of appreciate the fact that, well, maybe its something a little more nuanced like safety, that is the idea we have as a society that permits the private ownership of firearms but for reasons of safety. And then we have policy disagreements about what creates an optimal regime of safety with gun rights proponents saying more guns leads to ideal safety and people that want to regulate guns saying that a free market in the tools of violence doesnt necessarily lead to Optimal Outcomes and there needs to be some kind of regulatory structure to create optimal safety. In an environment in which there is a constitutional right to actually possess personally firearms and thats one way of unpacking maybe what security means post heller. Thanks. So, again, one of the great fascinating things about digging into the history is you begin to see that many of the ways the Second Amendment plays out are almost the mirror image of the historical Second Amendment. There many times where the history, the law and the culture of the constitution dont line up perfectly. But just to give you an example that speaks to this issue of security. You often hear about Second Amendment remedies or Second Amendment is a right of revolution, its the ultimate check. Seating aside that the treason conclusion defines taking up arms against the government, it isnt really a very astute reading of the constitution, the Founding Fathers were perfectly able and eager to confiscate as many guns as they could from a variety of groups in 18th Century America who they believed should not have them, including loyalists. So the real gun grabbers, if you want it, are the people who wrote your Second Amendment. So, you know, how do we make sense of the fact that the people who wrote our Second Amendment engaged in more widescale gun grabbing than any group up until that point in western history. Were dealing with 18th century wig theory, were not dealing with modern liberalism, modern socialism, were dealing with a different world where different concepts and different ways of thinking about legal and constitutional questions predominated and that is the real challenge is to actually be able to think in the mind set of an 18th century lawyer or congressman and people who are quick to invoke the Second Amendment havent done the hard work to dig into the 18th century context to understand what those words meant. Going back to this question about analogy and contemporary analogy, so im going to just repeat this pattern here of asking you to start. This is a question really for both of you. Is it the case, can we make an absolute case that the Second Amendment is rooted in English Common law or are there other traditions from which they derive which might give us a different perspective on the Second Amendment . Well, its its an incredibly important question. The reason why we talk about english history or whats going on and, you know, 17th or 18th century england is because heller says the right to keep and bear arms, as Justice Scalia understands it, is a right that comes over from england, the premise is when the writing of the Second Amendment, theyre encoding a british understanding. Now, very quickly, it becomes apparent that thats not really its hard to do that. Why . Because as James Madison identified very early on when talking about a completely different constitutional provision, the 7th amendment, he says is it the common law that existed the england, the common law as repealed by our statutes. What we end up with is this weird mishmash of weve got english history and weve got American History and, you know, as Justice Harlan once said, the business of constitutional decisionmaking is figuring out what traditions we adopted and what traditions we broke from. And so when were doing this sort of history analysis, thats really the question, theres theres the tradition in england was to disarm what they called papists. Thats part of the tradition. And so trying to sort that out is the tough part about doing the analogy but it doesnt mean that i cant be done. It just means its hard. Can i ask a followup to that too which is, isnt part of the story the extent the founders understood the tradition or to the extent there was a common law tradition . I think it raises an important point. One way of reframing heller, a better way was the Second Amendment intended to elevate traditional common right law to expressed constitutional provision. And scholars who have gone over the evidence that thats absolutely not what the Second Amendment was about. That doesnt mean the right of selfdefense wasnt entrenched in law, it was. But it had to do with issues of federalism, militias and you had to have a well armed and well regulated population with access to firearms. Another fascinating thing about how we analogize from the past, the main goal from english firearms policy before the revolution was basically to keep guns out of the hands of the lower class. There were very strict property requirements that prevented people from owning firearms. The main goal of early american firearms policy is to encourage americans to buy the guns that the government wants them to do because the big problem, americans are well armed compared to their english brethren, but underarmed compared to the idea of a universal militia. If youre a farmer, you dont need a bayonet, you want a light hunting musket. So our problem where we have sort of over 300 million guns in america, were trying to figure out, how do we analogize where there was gun scarcity, perhaps, abundance of guns compare today the european tradition, but compared to what we have today, how do we analogize anything we have where we live in a society where firearms are so radically different. Its an e lrror to say, we shou only protect muskets. Thats not what im saying. Technology changes but so do the social and economic context in which it functions. And one of the things we havent fleshed out is how do we recreate some of the kinds of mechanisms of safety that were informal because people are living in Rural Communities . I remember when i was teaching at william and mary and i lived down the street from the magazine, i remember talking to one of the firearms reenactors who explained, i would have known everyone in town, i would have had to work on their musket because they needed constant repair. How do we analogize from the world of the willamsburg magazine and the local gunsmith to the world where you can buy it on an online website . So, again, the great thing about being a historian, i can frame the problem, i dont have to solve it for you. Thats why they pay us the modest bucks at the end of the day. But that is in essence, one of the major problems. Okay. Just continuing on this question of contextualizing. I want to ask you a specific question about infringed and abridged and how those two words differ in their implication and whether there is a Historical Context to that or whether we only need to concern ourselves with our contemporary conception of the distinction between those two words. Well, it depends on whether you think were doing a ly linguistic exercise where the meaning is interchangeable. You could say infringed means just the same thing as to violate. This is one of the definitions. It could be a binary, either its on or off or you could think of it as some kind of spectrum, right, theres a diminution and thats an infringement and theres not a good linguistic account that i have seen so far about which way to interpret that. And so, you know, as between infringed and abridged, im not sure im not sure how much work you can do with that kind of things. Lots of times they say in the 18th century things like, certain rights shall not be questioned and i dont know what that means. In the system of judicial review where judges get to interpret the constitution, shall not be questioned, does that mean ought not be questioned. I just dont know what it means. You can press really hard on that linguistic nuance, but im not sure im not sure i think theres one thing thats clear, though, and i wholehearted agree with you, darrell. The First Amendment talking in a language of of, you know, abridgment, and the Second Amendment talks about a language of infringement the specific question is about whether theyre individual or collective. I think the more important question is the First Amendment has this idea that you can diminish something without crossing the threshold of destroying it. The Second Amendment has this very different kind of sense that theres some point which you cross the threshold which you have undermined the nature of the right. What you do with that i think is still up for debate. Yeah. Okay. Heres a specific question about very, very briefly, saul. Spot the professor. Takes one to know one. This is about the long history of gun regulation in the 20th century and how gun regulation has changed in the 20th century in two sentences. The federal government, the new deal. Okay. All right. Commerce clause. You can have one more sentence. Clearly the major transportation is until the 20th century with the exception of militia, statutes, the Commerce Clause is not the great engine of regulating anything and that would include guns. Did you want to add to that . No. All right. I have im going to wrap up with a me for you in just a second, but theres a question here for saul thats about historical analogs with the current trend of selfidentification by gun ownership, having gun ownership be a sense of once identity, whether that is a 21st century kind of phenomenon and how significant that is in three sentences. Thank you. I think its very clear that in the 18th century, firearms are a tool. They need them, they use them. They may have a powder horn that they carve in a way to lend an artistic quality to it. People do not identify themselves the way supergun owners, people own over 15 guns, as that this is who i am. This is what defines me. This is the thing that makes me an american, this is how i define my sense of self. It was not part of the way guns theyre not advertised the way they are in modern america. You dont get your man card the way when you do when you buy an ar15, you look in this horrible newspaper, somebody has some fire locks, i should get a new gun. The other kinds of weaponry that were so popular including in 18th Century America. If you go to the Governors Palace in willamsburg, you will see a collection of swords, displaying weaponry, what has a longer history . In terms of the state and the historically function of the state, all kinds of rituals, you have parading, all kinds of symbolic, but im thinking of having this gun in my house is key to understanding who i am as an american. What about the english nobility and their ability to guard castles and so on with extraordinary weaponry . Of course the right to be able to carry an arm in public is a privilege ofu ;c0z in2qv english society. So, theyre one of the few people who are exempted out of the statue of north hamptons prohibition. Theyre allowed to carry weapons suitable to their condition and is allowed by law. Thank you. I have one final question for daryl which is to ask you to do some futurecasting for us. Weve been talking about the history of history i gave that up in 2016. But, you know, some of what you have said suggests that history and particularly history by analogy is going to have a significant role Going Forward particularly in this legislation and legal realm. Do you want to say anything more about how significant you think that will be, whether that will grow and become more intensive . I mean, it could. I dont i have a feeling the history of the Second Amendment and the regulations will end up finding their way about shading what might otherwise be what i think most legal scholars think is a kind of conventional approach to Second Amendment adjudication or any constitutional adjudication. Theres always coverage questions. Are we even dealing with a constitutional issue. Not every kind of speech is First Amendment speech. And even if it is First Amendment speech, its not protected exactly the same way everywhere that such speech occurs. So, its going to you know, even if we adopt those sort of baseline run of the mill constitution decisionmaking structures, the history, i think, is going to influence how both strokes of this piston operate. The other thing i will add is and this is what we keep dancing around which is the issue about the historical materials is they dont present their own an logical bay cease. Theres a jurisprudencial imperative which is like a rule of relevance. You can say that a credit market is like a plane if what you think is relevant is the fear that people will be harmed in close spaces. But if you say, no, the relevant material between that is you go to a fair to entertain yourself and you get on a plane to travel somewhere, then the analogy breaks down and theres nothing in the materials themselves that tell you which way to jump. Thats what the judge does. Exactly. Well, as a historian, i thank you for essentially saying its complicated. Thank you so much for being here and thank you to daryl and to saul. [ applause ] thank you for coming out. Go forth and legislate. Tonight on American History tv beginning at 8 00 eastern a look at why june is lgbtq pride month. Six days of protests began on june 28, 1969 after a raid on a Greenwich Village guy club in new york city. It grew to be a key turning point in the rights movement. A documentary history joined us to mark the 50th anniversary of the uprising. Watch American History tv tonight and over the weekend on cspan3. American history tv on cspan3, exploring the people and events that tell the American People every weekend. Coming up this weekend, saturday at 6 00 p. M. Eastern on the civil war, the 1863 richmond bread riots where hundreds of poor and working class women protests inflation and the scarcity of food. And sunday at 4 00 p. M. Four films from the 1940s and 50s from the auto, dairy, restaurant, and Airline Industries negatively affected today by the coronavirus pandemic. And the nixon administrations native American Government reforms, the restoration of indian lands, and a new era of selfgovernment. Exploring the american story. Watch American History tv this weekend on cspan3. Up next on American History tv, a conversation from the texas book festival with the author of the book gunfight, the battle over the right to bear arms in america

© 2025 Vimarsana

comparemela.com © 2020. All Rights Reserved.