Q: Okay, to start out this whole discussion, can you talk a little bit about the Second Amendment itself - what it provides fo,r and what the original intent was behind that provision of the Bill of Rights.
A: Well, the Second Amendment, at bottom, is about armed self-defense. This is how the Framers saw it. And it was armed self-defense on both the community and the individual level. Armed self-defense at the community level against the potential of future oppression by a centralized government; and armed self-defense at the individual level against, you know, less organized forms of oppression. I think it’s important to remember that in 1791, we didn’t have police forces to speak of, so defense of the population of the people against crime was not, in the first instance, a state responsibility. It was something that was done at the individual and community level. So at root, what the Second Amendment is about is armed self defense.
Q: Can you speak more broadly - beyond just some of the historical matters you covered? And talk about the Framers and how this part of the Bill of Rights fit into their general worldview.
A: Well, there are a couple issues there. I mean, the immediate historical context was an answer to one of the serious charges leveled by the Anti-Federalists, the opponents of the Constitution, who saw danger in the creation of a standing army by which the federal government might potentially oppress the people. And the Federalists, Madison and the Federalist Papers, answers this by saying look, the ultimate security of the people is in their ability to be armed. That’s the ultimate check. The Bill of Rights, where it comes up in the Bill of Rights, is guaranteeing the security of the militia, which was by the Framers viewed as synonymous with the people, through securing the individual right to bear arms. And the historical context on that is very clear. This competing theory that the Second Amendment guarantees some sort of collective right, a right of the states to maintain a national guard, this is a very novel theory that you don’t actually see being articulated with any seriousness until the twentieth century. And that’s a reflection of its creation as something that was useful in a debate over ending the right to bear arms.
Q: In terms of the rest of the Bill of Rights, and this gets to the, I think, the nub of the debate of whether this is an individual right or a collective right - if one analyzes the entirety of the Bill of Rights, are there context clues that give you information about how you can read the Second Amendment?
A: Sure, ‘The right of the people’, which we see in the Second Amendment, “the right of the people to keep and bear arms shall not be infringed.” ‘The right of the people’ is a term of art in the constitutional text and in the Bill of Rights. So you see ‘the right of the people’ in the First Amendment, you see it in the Fourth Amendment, you see it in the Ninth Amendment. And everywhere it appears, it connotes an individual right. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” it’s an individual right. So what you have a real difficulty arguing, if you choose to do so, you have a real difficulty arguing that the right of the people in the First Amendment, the Fourth Amendment, and the Ninth Amendment means an individual right, but suddenly the same phrase in the Second Amendment means some sort of collective or state’s rights. The Framers were very careful with language. They knew what they were about and they knew what they were saying. They knew how to write in a state or collective right if they so chose, and they wouldn’t have picked language like ‘the right of the people’. The Supreme Court has actually recognized this in passing in a case a few years back, United States versus Verdugo-Urquidez, where they make exactly this point; that ‘the right of the people’ is a term of art connoting an individual right.
Q: Can you talk a little bit about the role of the federal government in regulating firearms possession and sale, and how they first got into an enterprise that was, prior to that, looked at as a state function?
A: I think that the federal role in regulating firearms is of questionable constitutional providence.
Q: Can you talk about whether that implicates the Second Amendment more or the Tenth Amendment more?
A: I think actually, most federal regulation of firearms, of firearm possession, implicates the Tenth Amendment more than it does the Second Amendment. The federal government was not envisioned as having the power to pass direct criminal laws in most areas of American life. The ordinary administration of civil and criminal justice was, in the first instance, left to the states. Most federal regulation of firearms is…you do have some constitutional problems in terms of Commerce Clause grounds, in terms of whether the federal government actually has the authority to pass direct criminal laws on some of these areas. But where you see the most…the sort of regulation of firearms that most directly implicates the Second Amendment, is more often at the state, city, and local level, and less so at the federal level.
Q: I’m curious if there has been any case law you can speak to about other parts of the Bill of Rights that have been incorporated via the Fourteenth Amendment. Has the Second Amendment been viewed in the same way, or has that really not been touched by the courts?
A: The Supreme Court has not held or ruled directly on whether the Second Amendment is incorporated against the states through the Fourteenth Amendment. That’s not been something that they’ve ruled on. The Supreme Court has not said much at all about the Second Amendment since the last time they directly ruled on it was in 1939, in United States versus Miller. And even that case, which involved a couple of bad characters with some sawed-off shotguns, that case merely said - it didn’t address the issue of whether the Second Amendment protects an individual right. It simply said that in regard to the Second Amendment defense that was offered, that a sawed-off shotgun is not a useful militia weapon; you don’t see this having a historical role in citizen self defense and citizen militias. So the amount of precedent on the Second Amendment from the Supreme Court is surprisingly thin. Miller left a lot of questions open. And you saw that in the Emerson case, that’s the case from 2001, from the Fifth Circuit Court of Appeals, which held that the Second Amendment protects an individual right. And that case uses Miller to great effect, because there is a lot of language in the Supreme Court’s opinion in Miller that suggests that this is an individual right. But you know, as they say, the field is wide open in terms of Supreme Court precedent. And there are many questions that the court has not spoken to directly.
Q: You have written in one of your columns that there are constitutional scholars that for a long time supported the other side of this argument - that there is just a collective rights interpretation of the Second Amendment - who seem to be changing their thinking about this. Can you talk a little bit about who those people are and perhaps why the debate seems to be swinging?
A: Sure, that’s exactly right. There has been a sea change over the last couple of decades in the way that the Second Amendment is viewed in the legal academy. And the individual right view, among legal scholars, is the ‘standard model’ it’s called. It’s come to be accepted that ‘the right of the people’ means ‘the right of the people’. The Second Amendment means what it says. You have Sanford Levinson, a liberal law professor; some years back one of the first to sort of make this break. He wrote a piece called The Embarrassing Second Amendment, and Why Was it Embarrassing. It was a very honest and bold thing that he did. He called it the ‘Embarrassing Second Amendment’ because as a civil libertarian he respected the Bill of Rights and took it very seriously - but you know, was uncomfortable, culturally, with guns. But it’s the Embarrassing Second Amendment because he was saying to the sorts of people who are civil libertarians, “Look, if we’re serious about the First Amendment, if we’re serious about the Fourth Amendment, the Ninth Amendment, the Fifth Amendment, this is in there too; and the text and the history tells us that it protects an individual right.”
Other prominent examples of left-leaning, very highly respected legal academics: Lawrence Tribe, a highly respected legal academic from Harvard who wrote one of the key treatises on constitutional law - he recognizes that this protects an individual right. Alan Dershowitz, also of Harvard, certainly not any man’s conservative, has also said that this protects an individual right. So you are seeing a lot of support for, you know, the gun rights view of the Second Amendment from some pretty unexpected quarters. And I think that’s a testament to their intellectual honesty.
Q: I think from here on out we can probably talk about Parker.
A: Okay.
Q: Talking about the Parker case, it might make sense to start talking about D.C.’s gun laws and give a quick summary of what those are.
A: Sure. Well D.C. is, you know, it’s been a laboratory experiment in citizen disarmament for going on thirty years now. And the theory behind the D.C. gun ban, which is one of the most stringent gun bans in the country, is that everybody, criminals and victims alike, ought to be disarmed. And if you’ve lived in D.C. for any length of time - I’ve lived here for more than ten years - you know just about how well that’s working out - which is to say it’s not working out well at all. The D. C. gun ban is, as I said, one of the most stringent in the country. You cannot own a handgun in D.C. unless it’s registered. But you can’t get it registered unless you happened to register it before 1976, which is a nice Catch-22. If you have registered it, if you did think ahead and you registered a handgun back during the Ford Administration, then what you’ve got essentially, is an elaborate paperweight, because D.C. makes it illegal for you to put that gun…
(Pause for technical adjustment.)
Here’s how the District’s gun laws work. First, you can’t own an unregistered gun. Second, you can’t register any new handguns. The District has not allowed registration of handguns since 1976. But if you were thinking ahead back during the Ford Administration and you happened to register a gun, you can legally own a handgun. Unfortunately, you can’t legally put it in working condition. That gun is required, by D.C. law, under penalty of law, to be kept unloaded and disassembled or bound by a trigger lock. And there is no exception in the statute for somebody kicking your door down. You actually…if you put that gun in working order, even a legally registered handgun that you got back in 1976, if you put that gun in working order to defend yourself, you’ve committed a crime simply by putting it in working order. Also, as unbelievable as it sounds, you can’t lawfully carry the thing from room to room in your house. You need a separate license for carrying within the home. And you can’t get a license. It is the most draconian, the most stringent, handgun ban, probably in the country. And as I said, if you spend any time in the District, you know about how well that’s deterring armed criminals from doing what they do. It’s not.
So you’ve really got this Kafka-esque scheme of gun control as applied to ordinary citizens that, as you can see if you walk around certain streets of D.C. at night, is really not doing a very effective job of restraining people who are already bound to break the law. The theory has been, for thirty years, that the best thing to do for crime control is to make sure that everybody, whether it’s a criminal or a victim, is disarmed. And for thirty years, during that thirty years, for many of those years as recently as a couple years ago, D.C. has been the murder capital of the country. So we’ve had a thirty-year experiment in citizen disarmament and the results are all around you - they’re not good.
Q: That brings us, I think, squarely into talking about the Parker case. I think you can attack it by beginning with your personal involvement in it, and then talking about what the aims of the case are. And are there broader implications to this lawsuit as well?
A: Well, my colleague Bob Leavy and I started thinking about this issue after the Emerson case in 2001, where the Fifth Circuit Court of Appeals in Texas held that the Second Amendment protects an individual right, and drew on some of this great scholarship that’s been done in the legal academy over the last few years on that issue. And one thing that brought it to the fore was, the District’s public defender was raising Second Amendment defenses in criminal cases, because the District stands in a different position than other municipalities, because the District is a creature of federal law; and ultimately, Congress has the authority to regulate what goes on in the District. And the Constitution applies directly to the District, there is not issue, as we discussed before, of incorporation and of whether the Second Amendment can be applied to the states. I mean, the District is a federal territory. So, the Second Amendment in the District, given that issue of federal law and given how all-encompassing and stringent the District’s laws on handgun ownership are; both of these presented, you know, very interesting and very potentially fruitful avenues to attack the modern collective rights view of the Second Amendment. And we…some of our plaintiffs we knew, some of our plaintiffs we found, some of our plaintiffs found us - but what they all have in common is they’re ordinary, hard-working, law-abiding residents of the District who would like to have the right to legally own a handgun in their own home. None of them are claiming, none of them are asking for the ability to walk around, to carry concealed and walk around armed. What they’re asking for is what, at a minimum, if “the right of the people to keep and bear arms” means anything, what at a minimum they’re entitled to: which is the ability to own the means to self-defense within their own homes.
District of Columbia’s theory is that the best way to protect people from crime is to disarm people like our plaintiffs - hardworking, ordinary citizens who play by the rules. And the results of that theory are what you can see all around you in the District of Columbia: a murder rate that routinely puts the District in the running for Murder Capital of the World; regular armed holdups; regular shootings. This theory that we’ve tried for thirty years is not working out and it’s unconstitutional. And that’s what we’re seeking to establish in the Parker case.
Q: So there is… is there a life for this case and the issues it presents beyond just overturning the D.C. gun ban?
A: Well, if the Parker case gets to the Supreme Court, and if our plaintiffs are victorious, we will have on the books, for the first time, a clear statement from the Supreme Court that the Second Amendment protects an individual right. And the historical and textual evidence for that is overwhelming. And what we’d like to see ultimately is for the Supreme Court to vindicate that clear evidence.
Q: I’m curious…if you could speak a little as to where and why this alternative collective rights theory has developed over the course of the twentieth century.
A: I think the collective rights theory is a creature of political utility. I think it is something that you can search, as legal scholars have, through the ratification debates, through the Bill of Rights. You can search through the legal commentators of the nineteenth century and state court cases. And you cannot find this theory, this theory that the Second Amendment protects a state or collective rights, you can’t find it being articulated. It comes into the fore as a way, as a political tool of movements like handgun control and organizations like the Violence Policy Center. It’s a creative reading of constitutional text that ignores history and that is meant to serve a purpose, which is to say that the Bill of Rights presents no obstacle to citizen disarmament. Well, it clearly does. But this collective rights theory is an attempt to sort of denude the Bill of Rights and to strip it of its force.
Q: The final topic I’d like to cover - I’d just like to hear your thoughts on the gun seizures that occurred during the aftermath of Hurricane Katrina last year. This is another case where gun rights issues were in the news and I’m curious to hear your thoughts about if the Second Amendment was implicated in these seizures or if this is, again, more of a federalism issue. I’d just like to hear your general commentary about that situation down there.
A: I think it’s terrible public policy when you have a large-scale breakdown of social order and of existing police forces, to start going around and confiscating lawfully-owned firearms from people who may well need those firearms to protect themselves and their friends and neighbors from chaos. As for the legal issues, I haven’t looked very closely at Louisiana law. I do understand that in addition to the federal Second Amendment, that Louisiana Bill of Rights, Louisiana Constitution, has a very strong protection for the individual right to bear arms. So I…certainly this is a terrible and unjust policy to carry out. It also may directly implicate the Louisiana Constitution and the right to bear arms enshrined there. |
