Q: As you and I have already talked about – we’re looking at the scope of interpretations about different provisions of the Constitution. We’re looking at the Second Amendment specifically, so can you talk a little bit about the perspective that you and your organization bring as to what the intent of the Second Amendment is?
A: Well, our position is that the Second Amendment does not confer an individual right to own firearms. The Second Amendment has to be interpreted as a whole, and as a whole, the amendment talks about service in relation to a well-regulated militia, which is, as the amendment says, “necessary to the security of a free state.” So, the amendment has to be interpreted in that respect. And the Supreme Court has held so in the United States versus Miller case. And essentially all of the Federal circuits, save one case, have interpreted the law, the Second Amendment, in that manner. So, the one exception is this United States vs Emerson case that was in the Fifth Circuit a few years ago. But, no federal circuit, or even federal district court, since the Emerson decision has agreed with its reasoning.
Q: With that intent in mind, can you talk about how that impacts the kind of regulations and laws that can be passed, either by the United States Congress or by state legislatures?
A: Well, the important thing to recognize is that no gun control law that’s ever been enacted has been struck down on the basis of the Second Amendment. So Congress has essentially free reign to enact reasonable gun control laws and it has done so; although, in some cases for example, with Congress allowing the repeal of expiration of the Federal Assault Weapons Ban, it’s also allowed what we thought were good laws to expire. But there really is no limitation on Congress passing reasonable gun control laws based on the Second Amendment. And in fact, the National Rifle Association, which is primary opponent of ours on this issue, would really agree with this. I mean, their actions suggest that they should agree with this because, for example, when the Brady Law was passed in the early 1990’s, the NRA challenged the Brady Law in federal court across the United States. Never once did they argue that that law violated the Second Amendment. When the Federal Assault Weapons Ban was passed a year later, they filed again court cases in Michigan and some other places. They did not argue that the Federal Assault Weapons Ban violated the Second Amendment. And why not? Because they recognize that if that issue percolated up to the U.S. Supreme Court as the Brady Law challenges did, that the U.S. Supreme Court would likely reaffirm what it held in United States versus Miller back in 1939, and hold that the Second Amendment does not confer an individual right; and would blow apart what Chief Warren – former Chief Justice Warren Burger – once called, you know, fraud on the American public: this notion that the Second Amendment, in fact, confers an individual right to own firearms. So, really the law’s pretty solid and the courts are all solidly on one side of this issue – that the Second Amendment does not confer an individual right. That the Second Amendment instead, is all about servicing a well-regulated militia.
Q: Has the Court’s views – I know there’s not been a tremendous amount of Supreme Court case law about the Second Amendment – but, if you look at the full scope of two hundred years of case law, has the Court’s view changed regarding the Second Amendment over the course of time?
A: No, not really. In fact, the Miller case cited cases from the 1800’s that confirmed that the… for example, the phrase “keep and bear arms” really has a military connotation to it. There was case called Ahmed vs State, I believe; a Supreme Court of Tennessee decision in the mid 1800’s that said one might carry his rifle for forty years, hunting and what not, back in mid-1800 Tennessee, and never be considered to have borne arms. In other words, personal ownership of a firearm is not keeping and bearing arms. The “keeping and bearing arms” phrase in the Second Amendment really refers to a military connotation. Keeping and bearing arms in service of the militia, and the militia was clearly a military unit organized by the states and is mentioned in several places in the U.S. Constitution. For example, in the Constitution, Article I, the militia can be called forth to suppress insurrection. So, the purpose of the militia was to preserve, protect the common defense and to protect governmental interests – not this kind of notion of every man for himself; some kind of anarchistic view that really, if you took the individual rights view to its logical extreme…that’s where you would end up.
Q: So, we talked about this just briefly before …is there a “federalism” component to the Second Amendment, essentially guaranteeing that the federal government could not disarm state militias? Is that the -
A: Yes, the debate, there were eighty pages of debate about the Second Amendment. Not a single word was about individual right to own firearms. Everything was about… the issue was whether or not the standing national army, which was created through the Constitution - because before that, we had the Articles of Confederation - a much loser affiliation of the states. We then… it’s the Federalist national army created through the Constitution, as opposed to the Anti-Federalists, who felt strongly about states’ rights and wanting to preserve a kind of state authority. And so, in Article I of the Constitution, it allows Congress to arm the militia. But, there was a concern by the Anti-Federalists. What if, in fact, Congress chose not to arm the militia? What then? Thus, the Second Amendment allows, essentially, for the states to have an armed militia. Again, but it’s a well-regulated militia, meaning well trained under state authority for the security of the free state; meaning for the collective defense. That’s what the whole Second Amendment….that’s what the Second Amendment is about.
Q: A lot of current debate - constitutional debate - over the extent of the Second Amendment hinges on the Miller case. You’ve cited it a couple of times. The person from the Cato Institute that we spoke to cited it. Can you tell us about what Miller holds?
A: Well again, Miller holds that the Second Amendment has to be interpreted in light of the militia aspect of the Second Amendment. That it has to be interpreted - essentially any issue that arises under the Second Amendment has to be linked to preservation and efficiency of the militia. That’s what the Supreme Court said. And so, I know some people have tried to narrow it; that the Miller case only talked about the type of firearm possessed; but, Miller actually…the language of Miller really should be read more broadly because they said…. They applied that rationale to the specific facts of the Miller case but, in fact, the Court talked about more broadly that the Second Amendment had to be interpreted with this militia purpose in mind. And that’s in fact how, the circuits, almost all of the circuits of the United State Courts of Appeal, have interpreted Miller and the Second Amendment.
Q: What were the facts, the circumstances in Miller for people who’ve never read Miller?
A: Well, I believe his…someone was challenging his…the criminal prosecution for owning a sawed-off shotgun, if I’m recalling my facts correctly. And he was claiming that he had a right to a sawed-off shotgun under the Second Amendment, and the Court rejected that.
Q: Let’s turn from the general constitutional background to a specific case that you …your organization has obviously been part of court proceedings regarding the Parker case here in the District of Columbia. Can you tell us a little bit about that case and the circumstances that surround it, just for starters?
A: Well, I think the Parker case, and there’s a companion case called Seegers, are an effort to really - an effort to challenge a law based on the Second Amendment. And, they chose D.C.’s handgun ban as the basis of the challenge. There was a lawsuit filed by the Cato Institute – that’s the Parker case. And there was another lawsuit filed by the NRA (the National Rifle Association) that was the Seegers case. And both of them really are an attempt to strike down the District of Columbia’s handgun ban. I think they must believe that that’s the kind of case where they want to raise…. I mentioned that ten years ago, the NRA wouldn’t touch the Second Amendment when addressing the Brady Law and addressing the Assault Weapons Ban, both of which they challenged in federal court. Now they think that they may have turned the tables. For example, perhaps they believe that the Supreme Court might be ready to hear a Second Amendment challenge if this case were to get that far. Justice Alito, for example, once held in a case called U.S. versus Rybar that the federal ban, the machine gun ban, should be struck down in violation of the Commerce Clause; one of the main reasons why we opposed his nomination. Justice Thomas, in a footnote to the case deciding the Brady Law, said, “Why didn’t you raise the Second Amendment in challenging this Act?” So maybe they believe there’s a new balance on the Supreme Court that would be more receptive to their arguments at this point. But otherwise…we think, in other words, there are really political motivations behind these cases. And that’s why they’ve chosen to challenge the D.C. handgun ban.
Q: Can you tell me a little bit about the history of the handgun ban, the extent of the law and maybe some of the results that the city has seen from the ban?
A: Well, the ban was enacted in 1976, and there actually was study that showed an immediate decline in both homicides and suicides as a result of the ban. The problem is, District of Columbia is a small, several square mile governmental body area that is susceptible to handguns being brought in; trafficked in from other states. So there are a lot of states with weaker gun laws and, unfortunately, the gun industry is more than willing to facilitate supplying this illegal handgun market. For example, studies done by the Bureau of Tobacco and Firearms have shown that about one percent of the gun dealers in this country are linked to more than fifty percent of the crime guns recovered on the streets of this country. Now everybody knows who these dealers are, and yet the gun industry has been willing to continually supply them with guns. And it fuels this illegal sub-market in guns which cross state lines and come into the District of Columbia.
So despite the District’s handgun ban, there certainly are guns coming into the District of Columbia. But that’s due to gun traffickers and due to the kind of laxness of the gun industry’s protection over….the unwillingness of the gun industry to crack down on these kind of bad apple dealers that are supplying most of the crime guns recovered in this country. So, there’s a couple things to say, and there’s been studies that have shown that states…I mean, it’s not just D.C. this happens to New York City, which has very strong gun laws. Most of the guns recovered in crime in New York City have been have been sold at gun dealers in other states, mostly in the Southern states. And there’s been a national study that looked at this that, typically, cities and states that have tougher gun control laws are more likely to have crime guns originally sold in other states than in their own state. So, you know, the problem is, guns are a national problem and the only way to address this problem is to have more uniform laws, so that you can’t simply go to the state with the weaker laws or to the dealer who has lax practices, get the guns and circumvent the law.
Q: Can you tell me about where the Parker case is currently?
A: Well, the Parker case is on appeal at this point before the Appellate Court in the District of Columbia. And it’s been briefed and the Court is….or, actually, I take that back… The Court announced the appeal would go forward, which, I think, surprised some of us because in the Seegers case, the case was dismissed on standing grounds. And so we kind of expected that that would be the result in the Parker case as well. But, instead, the Court has allowed briefing; but, the briefing is not completed at this point and…
At this point, the Parker case is awaiting a briefing schedule from the Court of Appeals of the District of Columbia and …or, the D.C. Circuit, I should say. And so the parties are waiting for that schedule, so we can write our briefs and have oral argument on the case. The parallel Seegers case was actually dismissed on standing principles, and the Second Amendment issue was never addressed by the Court.
Q: In the Parker case, what did the lower court hold in the ruling that is being appealed right now?
A: The lower court held that the Second Amendment…they upheld the militia interpretation of the Second Amendment just like all other federal courts essentially have done over our history. And, so that’s what’s being appealed.
Q: You briefly mentioned the Commerce Clause and Judge Alito’s previous opinions about this. Can you talk a little bit about how that intersects with - not necessarily Second Amendment issues - but with legislative issues? You’ve mentioned a couple of them.
A: Right. Well, I would say most, if not all, federal gun control laws are adopted under the power of using the Commerce Clause. Certainly gun violence is an interstate commerce problem. It’s a problem that spills out beyond state borders. And most guns, in fact, move interstate. So it clearly has interstate implications and the Commerce Clause has been the basis by which Congress has enacted essentially all gun control laws. Now there was decision a number of years ago called U.S. versus Lopez, in which the Supreme Court struck down the Gun Free School Zone Act as it was originally passed. But Congress, after that decision, re-enacted the Gun Free School Zone Act, putting an interstate commerce element into the law, as well as adding a number of specific findings. So that law has since…is constitutional and has withstood any challenges.
Q: As we were talking about - given the fact that the Commerce Clause is among the matrix of considerations that could impact federal gun laws, how do you see the Court’s newest members perhaps having influence on the debate over the scope of the Commerce Clause?
A: Well, I’m not sure how the Court is, going forward, going to interpret the Commerce Clause as a whole. But we oppose Justice Alito, who did put a Commerce Clause barrier between the, you know, essentially would have struck down the federal machine gun ban on Commerce Clause grounds. We don’t think that a majority of the Supreme Court is going to come to that view, and certainly we would hope not. Because, as I say, the Gun Free School Zone Act was re-enacted and I think most federal… and the machine gun law itself has been challenged and I think has withstood scrutiny. So I don’t see that as being the avenue of attack that the NRA or Cato will take. I do think that they are pushing the Second Amendment now, hoping that a lot of law review articles are going to coalesce into some new interpretation of the Second Amendment and get the Supreme Court to reconsider its Miller decision. That may be possible.
It’s possible the Supreme Court will take a Second Amendment case. And I don’t know if anyone knows in advance how these new justices would rule on such a case. You know, certainly we have grave concerns about that, which is why we took an unprecedented step of opposing the nomination of Justice Alito to the Supreme Court. It was the first time we had ever opposed a Supreme Court nominee. We felt his position was very dangerous to the country’s gun control laws. Whether Justice Roberts would join him in his thinking or whether he would be able to get a majority of the Court aligned that way, it’s hard to say. I think, certainly, Justice Thomas has already indicated, in his concurrence in the Printz case, the case that challenged the Brady Law; he already felt that the Second Amendment should have been raised in that case. So I think it’s an open question. If it gets to the Supreme Court, certainly we’ll argue vigorously.
And the good news is that there’s been a lot more historical scholarship done in the last ten years that really confirms, from a historical standpoint, what the text of the Second Amendment says. That this is all about the militia, and essentially, “a well-regulated militia being necessary to the security of a free state.” This is about collective defense of states, not about individual rights to own guns to do whatever you well please with. This is no… the framers of the Second Amendment were not anarchists, you know.
I’ve been down… I’ve taken my family down to Colonial Williamsburg here in Virginia and it’s enlightening. Because if you go into the recreated State House, you realize that Jefferson and Madison, Washington, even Patrick Henry, were all in there as legislators debating whether or not to revolt against the King of England. And they debated it as a governmental entity. And they were united as colonies in rejecting the King of England, not as every-man-for-himself anarchists getting together with guns to overthrow the king. They came together as colonists, as governmental legislators. And, actually again, the musters and the central armory that is depicted there in Colonial Williamsburg again confirms that this was all about working together for the common defense. This is not about some every-man-for-himself, ‘let’s overthrow the government’ concept. I think that would be completely foreign to James Madison, who was the original author of the Second Amendment.
One thing I was to add there too, you know, is Madison once put a…the original draft of the Second Amendment had a conscientious objector clause in it. It said people religiously scrupulous, essentially, shall not be forced to bear arms. So if this is all about individual ownership, why do you need conscientious objector status? This was all about service in the militia. And he was willing to allow people of religious scruples who didn’t want to carry arms, bear arms for the militia, to essentially opt out. Of course, if this is all about individual rights, that would be completely irrelevant. It would be non-sensical to put that in there. But that was in Madison’s original draft of the Second Amendment.
Q: We mentioned Lopez a couple times and it’s come up both in our Second Amendment discussions and our Commerce Clause discussions. Can you talk about what that case was and perhaps your view of the opinion itself?
A: Well, you know, the United States versus Lopez was kind of a short-lived effort by the Supreme Court to give life to a limiting principle to the Commerce Clause. And it struck down a Gun Free School Zone Act that prohibited people from having a firearm within a thousand feet of schools. And essentially, the Court felt that that was no finding by Congress. That that had an interstate commerce nexus and there is no interstate commerce nexus in the law itself. And Congress then, reading that decision, reenacted the Gun Free School Zone Act, doing both of those things; putting in findings that it did, in fact, have an interstate commerce nexus and providing that the gun had moved in interstate commerce, which most firearms in this country in fact do.
So, since then, the Gun Free School Zone Act, again, has not…any challenge to it has been rejected. And it’s not clear whether that trend has gained that much more attraction since the Lopez decision. For example, going back to Justice Alito, there were a number of challenges to the federal machine gun ban, which also did not have an interstate nexus in the statute. And so the machine gun ban nexus was challenged in the circuit across the United States. All of the circuits found that it was constitutional, even in light of the Lopez decision. It was only Justice Alito, who dissented in the U.S. versus Rybar case, that found that the law should be struck down. His opinion was really a total outlier from the vast majority of … essentially, all the circuits were against him that had ruled on that question.
And, we think it’s very dangerous to suggest that Congress cannot ban machine guns, whether or not there is an interstate nexus put into the law. Because, in fact, many machine guns and many people prosecuted for machine gun possession in this country are prosecuted for retro-fitting semi-automatic weapons that, in fact, don’t move in interstate commerce; that are retro-fitted in the state in which the person possesses the gun. Essentially, you can change a gun to eliminate the internal mechanisms that prevent the gun from firing in an automatic basis. And it’s a dangerous notion to think that people who do that cannot be prosecuted federally in this country. Fortunately, Alito’s view has not gained any favor.
Q: What is the main point you want to leave with people about the Second Amendment discussion? What would you say?
A: Well, the American people need to be aware of what the NRA is up to here. If they can get the United States Supreme Court to hold that there’s an individual right on firearms, then all federal gun control laws would come under question. Because, if something is a fundamental right, the law then has to be evaluated under what’s called ‘strict scrutiny’. It’s a very close look at the law, and many laws that are evaluated under strict scrutiny are in fact struck down. Because it is not an individual right, and has never been held to be an individual right, other than the Emerson case. These laws are evaluated under a rational basis test, which is essentially the same test that’s applied to all safety regulations, all safety laws in the United States. And under that test, gun control laws, which are quite reasonable in this country, have always been upheld. None of them have ever been struck down.
But if the NRA is successful, who knows which federal gun laws - certainly they would challenge the panoply of them. And they might, in fact, try to win; striking down the federal machine gun ban. The Brady Law, passed in 1993, has barred 1.3 million felons and other disqualified buyers from getting guns at gun stores. Well, it’s no accident that since the Brady Law passed crime and gun crime have declined precipitously. So that has been a very effective law at protecting the public safety. If it’s struck down, are we going to return to the early ‘90s, when gun violence was truly rampant in our cities’ streets? This is an issue that really is a life and death issue for many Americans. Certainly, if federal gun control laws are struck down, our streets will be filled with higher firepower weapons; more of them. For example, the National Rifle Association is sponsoring a bill in the House of Representatives that would eliminate most of D.C.’s gun laws and would allow people to openly carry assault weapons in the nation’s capital. Armed, loaded assault weapons openly carried in the nation’s capital. That doesn’t make a lot of sense to us. And hopefully, it shouldn’t make sense to most Americans. |
