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What the Second Amendment Means Today
July 2, 2008
Stephen P. Halbrook, Don B. Kates Jr.

Contents

David Theroux
President, the Independent Institute

Good evening ladies and gentlemen.  My name’s David Theroux, and I’m the president of The Independent Institute.  We’re trying to accommodate everybody as best we can.  There are some seats also in the back for those if you may feel obliged.  Also, upstairs there is ample seating if you’re willing to use closed circuit television.  But that’s something that I guess everybody’s happy here. 

So I want to welcome you all to our event this evening.  As some of you may know, we hold events such as this as part of a series called the Independent Policy Forum.  We hold the forum events as lectures, seminars, and debates on a regular basis here at our offices in Oakland.  We also do a series at our offices in Washington D.C. 

Our program today is, as I’m sure you all know, especially timely and momentous with the U.S. Supreme Court’s recent landmark case in District of Columbia versus Heller, in which the Court ruled that the Second Amendment is an individual right to privately keep and bear arms.  Our event tonight is entitled What the Second Amendment Means Today

So it certainly could not be more timely as I mentioned, and we’re quite pleased and privileged to have two speakers with us who have been two of the really renowned and key legal scholars who have worked in this field for literally decades.  And these two gentlemen are really two of the real lions of knowledge and dedication to this field.  In fact, it really cannot be overstated how important the work of these two men has been in this historic case, but more about that as we proceed. 

As you may know, the Independent Institute is a public policy research institute.  We have about 140 research fellows.  We are an academic research institute.  As a result we publish many studies as books, such as the one we’re featuring tonight.  We also publish a journal called The Independent Review.  This is a recent issue.  It’s a quarterly that is edited by the scholar Robert Higgs, and I would recommend that do you. 

There’s information in your packets about many of our books as well as the journal.  You’ll also find information about how to become a member at the institute and the benefits of doing that as far as discounts to books, events and other things.  We also have a weekly e-mail newsletter, which you’re welcome to receive, called The Lighthouse, and we report on many new current affairs by many of our fellows and also, upcoming programs. 

One upcoming event I wanted to point out: there’s a one-page sheet in your packets about the summer seminars that we hold.  These are for high school and college students and are one-week seminars in which students receive a sound, in-depth understanding of economics, history, political theory and so forth.  And to equip them to have a world view that we believe is critical to really make sense of the world as well as to be successful in their own lives.  And the worldview is a combination of ethics, and economics, and related topics. 

We started this years ago because of the concern we had about the rampant political correctness in so many schools and colleges.  And I’m not sure if you’ve heard about the recent study.  There’s a group called the Intercollegiate Studies Institute that has been doing a number of studies of the knowledge that undergraduates have in the United States.  They’ve done the most extensive survey ever done over a number of years, and the results of that have recently been released.  And believe it or not, the result shows that the plurality of graduating seniors at most major schools, colleges, actually score less than entering freshmen on basic civic knowledge. 

So, for those of you interested in this, Carl Close who is in the back standing, and my colleague, would be happy to answer any questions, and I would too, as well.  So we hope that if you know students, either as children, or friends, or students who are here this evening that you’d look into that.  By the way, the dates for that, I should mention, is August 11 to 15. 

Last year, a federal appeals court, as I think you all know, overturned the District of Columbia’s ban on handguns.  Now, of course, the court has determined that that was unconstitutional after nearly 70 years of silence on the Second Amendment.  The Second Amendment has been clearly, and remains, in many intellectual circles, the most controversial and least understood rights in the U.S. Constitution. 

Did the founders intend to safeguard an individual right, as the Court has ruled?  Or a so-called “collective right”?  And there are many stories that many of us can relate to you, and I’m sure many of you have similar stories of the dismissive view that many circles have had about people who would make the argument that it is an individual right. 

What kinds of gun restrictions, if any, are consistent with the founders’ aims?  How exactly has gun ownership and gun control in the United States and elsewhere affected violent crime rates?  Why did the founders adopt the Second Amendment?  What was the motivation?  What was their thinking? 

Our first speaker tonight is going to address the issues that were in the case based on his new book, The Founders’ Second Amendment, which has just recently come out.  We were able to get proofs of it into circulation among those who were considering the arguments for the case, and many of the scholars who are in this field have been aware of our speaker’s work for numerous years.  He worked on this book for what, ten years? 

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well it goes back to like the ’60s I think.

David Theroux
President, the Independent Institute

So it’s been a while. Dr. Halbrook, also I should mention, filed the amicus brief for the case on behalf of 55 members of the Senate, the Senate president, and 250 members of the House of Representatives in the case.  So his involvement has been ranging from scholarship to direct involvement in the issues in the court and public policy arenas. 

He received his JD from Georgetown University Law Center.  He received his Ph.D. in Social Philosophy from Florida State University.  He has taught legal and political philosophy at George Mason University, Howard University and Tuskegee Institute.  He’s the winner of three cases before the Supreme Court dealing with gun issues.  He’s testified before many House and Senate committees. 

In addition to The Founders’ Second Amendment, he’s the author of many other books. Some of you may be familiar with another book that we published called That Every Man be Armed: Evolution of a Constitutional Right.  His books also include A Right to Bear Arms; The Firearms Law Deskbook; Freedmen, the 14th Amendment, and the Right to Bear Arms, 1866-1876, which is a very important book on how blacks were disarmed after the Civil War.  His also books include State and Federal Bills of Right and Constitutional Guarantees, and the very notable book on the Swiss Resistance to the Nazis, called Target Switzerland.  So I’m very pleased to introduce Steve Halbrook.

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Thank you, David.  Just to begin with, I want to pay very brief tribute to three people, and one of them is David Theroux.  He was very actively involved in getting a publisher for the book, seeking out various publishers, and also working with me in terms of planning to do the book. 

There’s only one chapter in That Every Man be Armed, my first book on the subject, that deals with the Constitution Period, the American Revolution, and the Constitution Period, but there’s been so much more information I’ve encountered over the years, and so it was time to do a whole book on the founding period only.  So thank you, David, for all your encouragement.

My wife Brenda, is she here?  There she is.

Every time I do a book, she’s like, “Another one?” you know?  So thank you for your patience. 

And then there’s Don Kates, my old friend.  I met him in 1976.  And Don’s a legend in his own time. He’s really done a lot on this issue, worked tirelessly, and you know, some of us, Don and myself and a few others, we do this almost, I guess, full time, for decades. 

And it’s like, when we started doing it, academics would say, oh, you’re a bunch of quacks.  And the judges in most federal courts would say things like, well, that’s frivolous.  And now we’ve really got them good.  I mean this is real revenge. 

Don’s essay, published in the Michigan Law Review back in the early ’80s, is cited more than once in the Supreme Court’s decision.

My book, Freedmen, the 14th Amendment, and the Right to Bear Arms is cited in a very important part of the Heller opinion for one purpose: because now we’re going after states and localities that restrict firearm ownership or prohibit handguns.  And as you know, or probably have heard, we filed lawsuits in Chicago, Morton Grove, and also the public housing lawsuit in San Francisco here.  And that deals with, if I can regress just a little bit, with incorporation, whether the Second Amendment’s incorporated into the 14th Amendment, so that it limits state action.

And so it’s like the past is prologue.  I was here a lot in the early ‘90s in California because you had the distinction of the Roberti-Roos Law, the first so-called assault weapon ban in human history in the Americas.  And we fought that tooth and nail, and we did not prevail, but the same authorities we brought to the U.S. Court of Appeals to the Ninth Circuit’s attention were things that were cited now in the Heller opinion. 

There’s an analysis of the 14th Amendment issue. For example, in the case of the Freedman’s Bureau Act of 1866, two-thirds of Congress declared that the rights to personal security and personal liberty include the constitutional right to bear arms, and the same two thirds of Congress that enacted that passed the 14th Amendment out of the Congress.  And we briefed all that back in the early ‘90s before your Ninth Circuit. 

And what did they do in the opinion?  They completely ignored all of this, and they held that California doesn’t have to recognize the Second Amendment.  They can ban anything they want to ban.  So it’s all come full circle now because it’s in the majority opinion by Justice Scalia.  Not only does the Second Amendment protect individual rights, but hello states and localities, it applies where you are, as well as to the District of Columbia. 

Now the Court didn’t make that finding because D.C. is not a state or a locality, but it’s very clear in the opinion that that looks like where the Court is headed.  And if you’re a federal judge and you read that, and you’re a lower court federal judge, you ought to really pay attention.  So these are going to be issues that are coming up in the very near future here and in Chicagoland.  So look for the action. 

The decision only came down like last Thursday. And it’s been like three months or something, because we’ve had to prepare new lawsuits.  And then the Independent Institute, through Wendy, signs me up for all these interviews, and I have no time, and I’m supposed to be reading the opinion, too.  It’s hard to. The opinion is 120 pages, if you add the dissents to it.  So it’s been quite a ride. 

But it’s a real pleasure to be here.  I wanted to talk about the book a little bit, and I want to talk about the Heller opinion a little bit and try to stay within the time guidelines, and we will be answering questions at the end of this session. 

But if you go back to litigation on this issue.  Those of us, like Don, and myself, and others — Don Kilmer is here.  He’s done this issue in your state.

First, there was the pre-Emerson period.  All federal circuits in the country basically that said anything about the Second Amendment had nothing good to say about it.  And they endorsed the so-called collective rights view, which tries to say that the right of the people to keep and bear arms means that the states have a power to maintain militias.  So that’s a curious way of saying that. 

And, in fact, in the oral argument in March, Chief Justice Roberts asked counsel for the District of Columbia, “Isn’t it a little bit of a curious way to say that the states can maintain militias if they say that the people have a right to keep and bear arms?”  And so you can imagine the attempt to try to catch up and make a response to that.

Then in 2001, just a few days after 9/11 hit, the U.S. Court of Appeals for the Fifth Circuit in the Emerson case, held that the Second Amendment protects individual rights.  It was the first decent opinion on the Second Amendment by the federal judiciary in its entire history.  It’s many, many pages that go into the text of the amendment, the intent of the framers, and the early cases that construed it, particularly at the state level, and on up through modern times.

Now, after a lot of the scholarship had been set forth in the ‘80s and ‘90s, the so-called sophisticated collective rights view was invented.  These anti-second amendment people would say, this is not just a state power to maintain a militia, but it’s a personal individual right to bear arms in the militia. 

Now think about the absurdity of that.  To be in the militia you have to be conscripted, basically.  I mean, there were independent militia companies in the pre-revolutionary period, but basically the militia is a military institution.  It’s a command-type organization.  And the absurdity of saying that you have a right to bear arms if you’re in the militia, it’s like, first of all, if a government tells you to be in the militia, are you worried that that same government will deprive you of arms and not let you do what that government wants you to do? 

So if they want you to bear arms, and bear arms against an enemy, you have a right to do it.  So if the government tells you you can’t do it—I mean, where is this headed anyway?  You can file a lawsuit? 

And also, besides not having the right to even be in a militia, what do you have a right to do when you’re in the military?  Like, what they tell you, right?  So if they tell you to peel potatoes, and you say, “No, I want to carry a Smith and Wesson model 29 around and do whatever.” I mean, it’s mind-boggling. 

And yet, four justices adopted that view in the Heller decision.  The dissent written by Justice Stevens was joined in by the other three justices, and that would be Souter, and Ginsburg, and Breyer.  And can you imagine a case being filed in court that would seek to enforce such a right?  To bear arms in the militia?  They wouldn’t obviously be ones to abide by that or to agree with that. 

And when you also look at the less sophisticated state’s rights view of the Second Amendment, the people who don’t like the Second Amendment usually don’t like so-called state’s rights, and so suddenly we have these anti-federalism people champion the right of the states to maintain militias?  That doesn’t make any sense.

So in any event, after the Emerson case came down, we then had some other federal courts making snide remarks about that decision, even though none of their circuits had ever done anything respectful. I don’t remember the exact year, but about three or four years later, the Ninth Circuit got revenge and that was in the Silveira case, where Judge Reinhardt authored the opinion saying that the Second Amendment was a collective militia right. He used that case that was brought before the court as an opportunity to write a really long opinion that he thought rebutted the Emerson case.  So it was basically a polemic against Emerson.

And there things stood until a year ago in March, and I was at the IWA in Germany having a good time looking at guns, and I got this phone call.  And the U.S. Court of Appeals for the D.C. Circuit held that the D.C. gun law was invalid.  I mean, that was quite an electrifying moment, because in the Emerson case there was no law invalidated.  The court upheld the federal law against the possession of a gun while being under a restraining order against domestic violence. 

So here you had the First Federal Court of Appeals actually invalidate a law.  And I had worked on the same issue in a parallel case and that case went out on standing grounds, and so we had this decision.  And then a lot of planning took place in between.  A year ago in March, and the briefs being filed, and preparation for oral argument, and finally it ends up this March, we had the oral argument. 

Let me mention just a few things about that.  I told you what Chief Justice Roberts said early on in the argument, that isn’t this kind of a curious way, if you say the right of the people, a curious way of protecting some governmental power. 

One of my favorite parts was Walter Dillinger, the counsel for D.C., talking about how easy it is to remove a trigger lock, because that’s another part of the issue in the D.C. case —the invalidation of the requirement that all guns always be kept without any ammunition loaded and either disassembled or trigger-locked.  And there was no exemption even for self-defense. 

And so Mr. Dillinger said, “Well, I did an experiment, I bought a trigger lock and I was able to work the combination and to release it in two seconds.”  And Chief Justice Roberts kind of leaned forward and said, “Well, what if it was the middle of the night and you’re waking up, and trying to find the lamp, and you’re trying to find your reading glasses?” And he didn’t say it, but I mean, your hands are shaking and you don’t know what’s going on.  So that didn’t carry much water.  The Court did invalidate that requirement as well, the aspect of the D.C. law that you can never use your gun for self-defense because you’re never allowed to load it or take the trigger lock off.

Justice Breyer at the oral argument did the same thing.  He did it in his dissenting opinion in this case.  Basically he said statistics can be shown that the D.C. law helped decrease the murder rate, and the D.C. counsel, we should defer to them, and they’re a legislative body, and we’re against judicial activism.  This is Breyer, you know. 

And, of course, the fact is that D.C. has been the murder capital of the country for most of the years since the D.C. law was enacted. 

And one of my favorite arguments: there was this really sophisticated study by physicians, I believe it was.  And they said the very first year after the D.C. law went into effect, the murder rate went down.  Well, guess what, there was an injunction against enforcement of the law that first year because gun owners went to court and got that injunction.  So that didn’t prove anything.  But in any case, the oral argument was really fun and games.

I was there with fellow attorneys, in the attorney section of the Supreme Court, listening to the argument, and we all knew that this was going to come down to Justice Kennedy. He’s the swing vote. And we’re sitting there, and Kennedy opens his mouth and what is he going to say?  He asked the D.C. attorney, “The founders were settlers to this country, right?  Didn’t they have to have guns for defending themselves against criminals, from hostile Indians, and against grizzly bears?” 

And we’re thinking Kennedy’s on our side, because that showed he agreed with the individual rights view, even though he didn’t know there were no grizzly bears in the east. It’s okay.  He’s from California.  No problem.  We forgive him.  He voted our way.  Thank you, Justice Kennedy.

Justice Scalia was his usual self at the argument.  I mean, he’s always a real pleasure to watch operate.  And he can be sarcastic.  He can create a lot of laughter, but he wrote the opinion.  I was in court last Thursday when he read a summary of the opinion orally.  And he went in very great detail to explain it.  And Justice Steven went in very great detail to complain about that decision and to say why he thought that he was correct.  It rendered on the last day, and, in fact, it was the last opinion released of the term, showing it was the most controversial. 

Now I better talk about the book a little bit, because there’s a lot in the book that’s not in the opinion.  Justice Scalia does mostly a textual analysis and then a linguistic analysis of the text.  How were the terms “keep and bear arms” used in those days, and in the century before, and also in the decades after the Second Amendment was adopted?

And he has very little reference to the encroachments of the Crown that lead to the adoption of the Second Amendment, and very little about any of the debates that took place, because he doesn’t like legislative history.  He does like textual, linguistic kind of analysis.  So that’s mostly what the opinion is.  He goes through maybe 50 pages of that, and then the last few pages he talks about why the D.C. ban is invalid, and he talks about the fallacies in the opinions by Justices Stevens and Breyer.

The book starts in 1768.  The Red Coats are sailing to Boston to occupy the town.  A patriot writes an editorial in the Boston Gazette, which was the leading patriot newspaper, probably authored by Samuel Adams or someone like that.  And it said that three things were going to happen that are basically worse than anything that has happened before by the British.  

The first thing is that the inhabitants are going to be disarmed.  The second thing is that the patriots would be seized by the British.  And then thirdly they would be taken and tried in England without a jury of their peers.  And that’s pretty interesting when you think about the taxation issues that preceded that, that they said these were the three worst things that could happen. 

The British did occupy Boston.  It led eventually to the Boston Massacre.  Events keep spiraling.  The Boston Tea Party.  A lot of the things I have in the book are diaries and letters that were private at the time and that have never really been used in any modern history of this issue.  You couldn’t buy a handgun in Boston in the weeks leading up to the Tea Party.  Everybody knew something was going to happen, and there was a diary I found where a gentleman said that all the handguns were bought up.  It’s sort of like after the Rodney King thing, right?  I mean, people buy guns when they really think they need them. 

But anyway, in those years, you have an escalation of infringements on the right to keep and bear arms.  And how did that take place?  For one thing, you have the Crown in England banned export of firearms and ammunition into the colonies, and also banned the import of those articles here because there was also a lot of trade between the Dutch, the Americans, and others who ended up smuggling arms here. 

So you interfere with the importation.  We have that in the federal gun control act today.  Only so-called sporting arms can be imported.  And in fact, one spin-off of the California assault weapon ban, and the things that it lead to, was the ban on importation of semi-automatic rifles, which is a ban imposed by the first Bush administration and administered by the ATF. 

So that took place, and then as the squeeze kept increasing. You had General Gage appointed as the governor of Massachusetts and also the commander in chief of all British Forces in the Americas.  And in those days, when large quantities of gun powder had been imported, they would be stored in powder magazines.  Black powder was volatile and had a much greater danger of fire, so there were some restrictions on how many pounds of powder a merchant could have for example. 

So when the merchants would go to the powder magazine to try to draw supplies of powder out for resale, Gage would not allow the powder magazine keeper to let them have any, and there were periods when it was very difficult to get gun powder.  And as you get towards 1775, when the events start really escalating, it becomes very, very difficult.  And you start seeing recipes for making gun powder published newspapers.  It’s one of these “don’t try this at home” things.  They didn’t say that.  They were encouraging it.  But it really is dangerous to try to make your own.

So eventually we come to the point of searches and seizures of persons and of wagons, for example, going in and out of Boston, and firearms being seized.  And to show you how legalistically minded people still were at that point—this was early 1775—persons who had guns seized from them by British soldiers thought about filing a criminal complaint for robbery in the courts because there was no legal basis for seizing them. 

And then there was a merchant who had distributed large quantities of gun powder for several months on end, and one of his wagon supply trains had been seized by the British, and he actually went in to see General Gage and said, “I want my powder back.”  And there’s an affidavit he prepared.  I mean, this guy really had some gall to go in and do that.  But that was the type of people we had in this country.  That’s the way the patriots were.

You also had entrapment.  There was one poor fellow from the country who was in Boston, and according to his accounts, some soldiers approached him, wanting him to buy a gun from them.  And he said no, and he tried to get rid of them.  But they prevailed.  And you know how entrapment usually goes.  They keep bugging you until you do it.  But the soldier testified that this guy was trying to buy guns from any soldiers who would sell them.  So who do you believe, by the way? 

Well, it could have been either one.  I mean, the Americans were trying to get as many muskets as they could.  And so if you were in that situation and the Crown had deprived you of any ability to buy them—if you could buy some from the soldiers, great. 

But anyway, so the soldiers set upon him and tarred and feathered him.  It led to outrage in the colonies, and Thomas Ditson was his name.  I don’t think his name has been mentioned since 1775 except in my book.  But it was another bone of contention that made a lot of people mad.  It even made General Gage mad, because that was not the kind of soldierly discipline that he stood for. 

But April of ’75 came around, and he sent the soldiers out to Lexington and Concord to seize the arms that they knew were stored out there in houses and in farms, barns and so forth.  And they got beat, particularly at Concord.  The British are fleeing back to Boston, and a British Sergeant did a diary which has some really neat details like about how the Americans were shooting at them from behind barriers, and they were using goose guns, he said, and other sporting firearms because they were using their own guns and using whatever they had.

The big story that’s not known about that era was that after Lexington and Concord, General Gage told people in Boston, decreed that guns had to be turned in, and if they did turn in all their guns they would be able to leave Boston.  Nobody wanted to be there anymore.  It was occupied by the soldiers.  Food was getting scarce.  And so, the appointed day came and the people turned in their guns, supposedly all of them.  They probably kept the best ones.  It’s like when they have the buy backs.  If you have any junk, you turn it in. 

But a lot of people probably did turn in all their guns because they really wanted to leave Boston, and they were being searched before they could leave.  And they turned it in in Faneuil Hall, which is still there.  It’s a big meeting place.  And their names were carefully recorded, so they could get their guns back later.  And at the end of the day, the Red Coats came and seized all the guns, and took them away, and never gave any back.  And then Gage reneged and wouldn’t let people leave Boston. 

So this was cited in the Declaration of Causes of Taking Up Arms in 1775 by the Continental Congress as one of the great injustices that justified war against the crown. 

That’s just some detail to show you the motivation for this right to be adopted in the Second Amendment.  And there’s a lot more like that in the book.  If you like action movies, the first third of the book has a lot of that in it and that will keep you awake.  If you’re interested in debates on the Constitution and Bill of Rights, that’s what the rest of the book is about.  I hope you enjoy that part, too.

But I found in my career that most gun owners are very interested in protecting their rights.  And you certainly don’t have to be a lawyer to want to do that.  That was the purpose of the Bill of Rights.  St. George Tucker, who wrote the first commentaries on the Constitution, stated just that,  that the Bill of Rights is not just for government officials to interpret, it’s for the people to know so they can protect their rights and defend them from government. 

And finally we have the Supreme Court saying that, that, gee wiz, the right of the people to keeping their arms means what it says. 

So I haven’t been watching the time too carefully, David.  Am I okay?  Okay, all right.  Time goes fast when you’re up here.

But after the first period of the Revolution comes you don’t see a lot of discussion about rights in the newspapers and journals of the time because they’re busy fighting a war, but you do have the patriots disarming the Torries and the Torries disarming the Patriots. And that’s been something that detractors of the Second Amendment have seized upon recently to try to say that the founders believed in gun control, because they seized guns from the Torries.  People like Saul Cornell and his new book, A Well Regulated Militia makes that argument. 

In fact, in some of the briefs in the early litigation in D.C., the Brady Center was bragging that Maryland at one point in Colonial history, the Protestants disarmed the Catholics, and so that was a good precedent for gun control.  So that shows that we have had it in this country and it should be here. 

And, in fact, my favorite part of that litigation on that phase of it was D.C.’s argument in the Supreme Court, bragging about how it had a long tradition of gun control going back to about 1851 or something. 

But the first D.C. gun law was depriving African Americans of firearms during slavery.  Slavery was legal in D.C. until 1862, and the laws of Maryland applied there.  And that was part of the slave code.  And so if they wanted to brag about their long history of gun control in D.C., that’s what it was.  It was a total ban on firearms by black people. 

But in any case, these instances like the Patriots disarming the Torries, I mean, all is fair in love and war, and if you would kill somebody, then it would be like you’re doing them a favor if you just disarm them instead and maybe imprison them.  So that’s what war is all about.  And people are deprived of rights.  Your enemies don’t have free speech or anything like that. 

So we then get into the phase in 1776 when the first state constitutions are adopted and some of them had bills of rights.  And Pennsylvania was the first one to provide that recognition of the right of the people to bear arms in defense of themselves and the state. 

And that language has a curious history.  Back in the 1980s, when people like Don and myself were writing a lot of law review articles, we pointed to language like that to show that the term “bear arms” can have different meanings, and it certainly can mean self-defense.

The anti–Second Amendment scholars would say, “Well, when they said themselves in the state, they meant themselves collectively.  There was no individual right to bear arms for themselves as individuals, but you could bear arms collectively to protect the state.”  But doesn’t the second part say bear arms in defense of themselves and the state?  I mean, it already said “state” in the second part, so what do you mean that you can bear arms to defend the state in the first part? 

And, of course, look at what they meant by defend the state.  It was against the established government.  They were talking about defense from tyranny.  They weren’t saying that you had a right to bear arms to defend the state government of Pennsylvania.   They’re saying you can defend the state or the polity of Pennsylvania against the crown, against the established government. 

Vermont had the same language in 1777.  North Carolina adopted a provision:  “The right of the people to bear arms in defense of the state.”  Massachusetts added, “to keep arms, the people have a right to keep and bear arms for the common defense.” 

Now, another one of those real winners that the oral argument in March had to do with those provisions. 

Justice Stevens asked the counsel for Mr. Heller:  “Wasn’t it the case that only two states had individual rights arms guarantees, and all the rest were collective?”  First of all, there were only a total of four, bearing arms guarantees at that time, and two of them were clearly individual, to the defense of themselves and the state.  But then there were only two others.  So what do you mean all the rest of them? 

And what did they say?  They both recognized the right as being in the people.  The right to bear arms in defense of the state, for example.  That meant you would be able to have the arms and to bear them in defense of the state.  It didn’t mean though that the overall government could tell you whether you could have arms at all, and, in fact, it was interpreted at the time to mean an individual right. 

So that’s an example of some of the fun and games that go on in the court.  You get a question like that, that’s totally off the wall, and you’ve got to be quick footed sometimes to answer those questions. 

But then we move on into the period after the revolution.  The Constitution gets proposed.  It has no bill of rights.  That upset a few people.  It gets debated.  People like Madison and Hamilton say in the Federalist Papers you don’t need a bill of rights for a couple reasons. 

First of all, anything you don’t put on there, they’ll say you don’t have that as a right.  And also, even the things that you have protected, there will be artful misconstruction to turn that wording against you.  That’s what happened with the Second Amendment, right?  Just because we’ve got that nice militia clause in there, they say that obliterates the substantive guarantee.   But the better argument was that it’s best to list the rights if you can to the extent you can, and that way people remember them. 

And, in fact, we go through three phases when the Constitution gets adopted as regards a bill of rights.  In the first phase, we have the Federalists winning in every convention, getting it ratified with no bill of rights, but people like Samuel Adams in the Massachusetts convention, or the dissent of the minority in the Pennsylvania convention, and then finally New Hampshire, as a convention recommends a bill of rights.  But the first states in that first period adopt a constitution with no mandatory recommendation of a bill of rights. 

And that changed when Virginia ratified the Constitution.  There was a lot of debate between people like Patrick Henry saying that the great object is that every man be armed, and George Mason saying that they can disarm the people, they can disarm the militia, if you don’t have guarantees.  You have a compromise where Madison agreed with the other Federalists to recommend a bill of rights when the First Federal Congress would meet. 

And all the rest of the states when they ratified, they had the same provision that basically, “we’re ratifying the Constitution, but we want a bill of rights.”  We want to have free speech and the right to bear arms and the right to assemble clearly stated. 

And Madison gets up on June 8, 1789, at the First Federal Congress and proposes a bill of rights.  Tench Coxe, a famous Federalist writer, said that that was to prevent tyranny of a standing army, and that you would have a right to keep and bear your private arms.  That was not contested, but that explanation was widely published throughout the colonies.  

And if I can just stop there for just a second to show you what happens with scholarship or lack thereof.  We’ve been using that Tench Coxe quote for many years.  It was the most important contemporaneous explanation of what Madison said.  It was published just 10 days after the Bill of Rights was proposed. 

So fast-forward to the year 2000. There’s an entire law review issue devoted to the collective-rights view and paid for by the Joyce Foundation, and we have Jack Rakove, the scholar from Stanford, saying that Tench Coxe didn’t know what he was talking about, and although nobody disagreed with it, that’s because they weren’t interested in the Bill of Rights, and that one thing or another to distract from what he said. 

And you can put that with a whole lot of other quotes from the founders on the meaning of the Second Amendment.  Patrick Henry’s “that every man be armed.”  Quotes like that. 

And the anti–Second Amendment scholars say, “Well, they didn’t say those things very much.  They said a whole lot more about a militia.”  And guess what they didn’t say anything about, though?  The collective-rights view. I mean, that was never once enunciated in that period.  And there’s a sentence I wrote in That Every Man Be Armed that I think got more mileage than anything else in the book;  “If anybody had the collective-rights view when the founders adopted the Constitution and Bill of Rights, it’s one of the closest guarded secrets of the eighteenth century because nobody’s found it yet.”  And I stick with that today.

That was first published in 1984, but with all this litigation we’ve been through, and all the generation of anti–Second Amendment literature by numerous historians and law professors, there’s never once been anybody identified who held this so-called collective-rights view at the time of the founding. 

So that’s basically what’s in the book.  I’ve got some material on the militia act of 1792.  Very interesting debates on that where Roger Sherman of Connecticut says things like, “There’s an individual right to self-defense,” and “states have a right to defend themselves.” 

And basically that was the founders’ thought.  There’s nothing contradictory between the clauses of the Second Amendment.  The individual right to keep and bear arms made a militia possible.  It was not that somehow if you allow the right to bear arms to be recognized as an individual right, then you couldn’t have the militia.  It’s just the opposite of that.

And the last part of the book has to do with the founders and the twilight years.  They’re starting to die off.  You know, Jefferson and Adams died on the same date, July 4, 1824.  Jefferson was a big gun collector.  He collected fine guns, fine wines, and fine books.  He went on shopping sprees in Paris and London when he was over there.  And some of his guns survived to this day, including pocket pistols and long guns.  And he was a big hunter.  I don’t think John Adams was much of a hunter or an athlete of any kind, but he did own pistols.  All of the founders did.

And then you have the famed view invented by the so-called modern scholars that the founders hated guns.  Well, this is the Michael Bellesiles theory.  The founders hated guns.  Their guns didn’t work very well.  They did more trapping than hunting.  And when they died, there were not guns in their inventories.  And, of course, Bellesiles fabricated the inventory account, but when his book Arming America was published—all of you remember this probably—all the Jack Rakoves and Gary Wills and all that crowd fell all over themselves praising Mr. Bellesiles, who was later disowned of the Bancroft Prize, and what a scandal that was.

So that’s the book, I hope you enjoy it and I hope you enjoy life in the post-Heller epoch that we’ve now entered. 

And, probably, I’ll sit down now and turn it over back to David, and let Don have a go at it.

David Theroux
President, the Independent Institute

Thank you, Steve. I am delighted to introduce our next speaker.  Don Kates received his JD from Yale University Law School.  He’s taught law at Stanford University, St. Louis University, and the University of Melbourne.  He’s been a civil rights lawyer with William Kunstler in New York and the California Rural Legal Assistants.  He’s been a trustee for the Poverty Lawyers for Effective Advocacy, a member of the California State Advisory committee to the US Civil Rights Commission.  He was director of litigation and deputy director for the San Mateo Legal Aid Society.  He was Plea Legal Advisor for the San Francisco Sheriff’s department.  He’s been a legal consultant to the cities of Seattle, Berkeley, and the State of Alaska. 

His books include, Armed: New Perspectives on Gun Control, Restricting Hand Guns: The Liberal Skeptics Speak Out.  I mentioned Firearms and Violence.  The Great American Gun Debate with Gary Kleck and others.  So I’m delighted to introduce Don Kates.

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

I am going to be giving out a whole lot of facts.  I am such a pedant that when I write speeches I put in footnotes. [Editor’s note: Mr. Kates’s footnotes and references are incorporated below.]

To many people it seems self-evident that the more guns there are the more murders there will be. But that simply does not accord with the empirical facts. The earliest firm data we have comes from right after WWII when gun ownership was low and so was the murder rate. Between 1946 and 2000 per capita gun ownership more than doubled in America. But the murder rate did not double. Nor did it go up at all. It actually fell.

Nor does the theory that more guns mean more murder work in Europe. A study I recently did with the Canadian criminologist Gary Mauser showed nations with much higher per capita gun ownership having much lower murder rates.[1] Our explanation for this is not, as pro-gun fanatics would theorize, that guns deter crime. It is because the nations that have bad and rising murder rates often ban guns as a quick fix solution. But that does not disarm criminals so nations with bad and rising murder rates come to have gun bans also.

Handgun Control Inc. counsels victims never to resist rape or robbery in any way: “the way to keep you alive [is to] put up no defense—give them what they want or run.”[2] Contrast this opinion to criminological fact. Analyzing a national data set on crime outcomes:  Prof. Southwick concludes: “The use of a gun by the victim significantly reduces her chance of being injured ....” [Lawrence Southwick, “Self-Defense with Guns: The Consequences,” 28 J. CRIM. JUSTICE 351-370 (2000) at 302.] Analyzing a different national data set Prof. Tark says: “Resistance with a gun appears to be the most effective in preventing serious injury [to the victim, and] the most effective tactic for preventing property loss....” [Jungyeon Tark & Gary Kleck, “Resisting Crime: The Effects of Victim Actions on the Outcomes of Crimes,” 42 CRIMINOLOGY861-909 (2004) at 902.]

The uniformly anti-gun media harp constantly on the evil which guns allow criminals to do. But the fact is that each year guns are used by victims six times more to prevent crimes than by criminals committing them. [Tark & Kleck supra.] Which is to say that, though guns do much harm they do six times more good. In more than 80 percent of the cases where victims pull gun criminals just turn and run w/o a shot being fired. Which makes sense. Compare the situation victim even if the criminal also has a gun and tries to shoot it out. Only 15 percent of victims die. But that is because they can be taken to a hospital. Wounded criminals can’t do that unless they want to be arrested. Their chance of dying in a shootout is enormously greater.

 7/11 stores follow Handgun Control’s advice and forbid their employees to have guns. If you want to read about women being kidnapped, raped and murdered you can find scores by just Googling “murder” and “late night convenience store clerk.”  Contrast a study I published of women’s armed self-defense in 2004[3]:

Eugene, OR, June 25, 2004: a convenience store clerk gave the robber all the money she had. When he threatened to kill her unless she gave him more she drew her gun, chased him out of the store, then shot the back window out of his getaway car. He and his driver were shortly apprehended.

Haines City, FL, August 11, 2004: Confronted in her store by two armed robbers, store owner Judy Foster shot one and both robbers fled.

Detroit, April 29, 2004: Barbara Holland was returning to the home she shares with her 18 year old daughter one evening when an armed man knocked her down as she was unlocking her front door. “He looked surprised” she reported when she pulled a gun from her purse and killed him.

Springfield, Ohio, March 22, 2005: MelanyYancey locked herself in her bedroom when two armed men broke into her house. She fired a warning shot when they began breaking down her bedroom door. They shot back but fled when she shot one of them in the ensuing gunfight.

Spokane, Washington, July 9, 2004: When a man broke into her home and attempted to enter her bedroom Lisa Hansen arrested and held him at gun point for police.

Nashville, Tennessee, July 19, 2004: Two young women hid in a bedroom with a gun when two men broke into their home, but when one man entered the bedroom they shot him and both men fled.

The problem with banning guns to everyone is obvious: The kind of people who misuse guns don’t obey laws. So all gun bans end up doing is leaving potential victims helpless.

It’s important to know how gun ban advocates answer this obvious problem. They lie. Scores of scholarly articles admit that burglary, rape and robbery are committed by criminals, but falsely claim that most murderers are previously law-abiding people who only killed because they had a gun. A peculiarity of such articles is that their authors never supply footnotes—for there are none. Crime studies dating back to the 19th century invariably show that law abiding, responsible adults do not murder; rather, “most murderers differ little from other major criminals.[4] Though only 15 percent of Americans have criminal records, roughly 90 percent of adult murderers have adult records with an average adult crime career of six or more years, including four major felonies.[5]  That is without counting their generally extensive juvenile records.

Lets consider the results of the most recent studies.

  1. Among juvenile murderers psychological studies find 80 to 100 percent are psychotic or have psychotic symptoms.[6]
  2. A New York Times study of the murders there in 2003 thru 2005 found “More than 90 percent of the killers had criminal records ....”[7]
  3. In a Kennedy School study “Some 95 percent of homicide offenders... [had been] arraigned at least once in Massachusetts courts before they [murdered],... On average ... homicide offenders had been arraigned for 9 prior offenses....”[8]
  4. Of Illinois murderers in the years 1991-2000, the great majority had prior felony records. [9]
  5. Eighty percent of 1997Atlanta murder arrestees had previously been arrested at least once for a drug offense; and 70 percent had three or more prior drug arrests—in addition to their arrests for other crimes. [10]
  6. Baltimore police records show that 92 percent of 2006 murder suspects had criminal records.[11]

Once again, articles that claim most murderers are ordinary gun owners never cite relevant supporting evidence.[12] The closest they come is noting the bare facts that murders often occur between acquaintances and arise from arguments and/or occur in homes.[13] Those who think this proves murderers are ordinary people are apparently suffering from the delusion that criminals don't have acquaintances or homes or arguments. It is only by deduction from this delusion that they conclude that since murders primarily occur between acquaintances and arise from arguments and/or occur in homes, the murderers must be non-criminals. Of the many studies belying this, the broadest analyzed a year’s national data on gun murders that occurred in homes between acquaintances: “the most common victim-offender relationship” was “where both parties knew one another because of prior illegal transactions.”[14]

In sum, guns or no guns, neither most murderers nor many murderers—nor virtually any murderers—are ordinary law abiding responsible adults. The policy implications are obvious: Since ordinary people neither rob nor rape nor murder, there is no point to disarming them. Rather, doing so is counter-productive since it leaves innocent victims defenseless against violent criminals.

David Theroux
President, the Independent Institute

Thank you, Don.  We have time for questions.  And the way this works is Carl has the mic, and if you will keep your comment to a question, not a statement, and hold the mic horizontal, that would be great.

Audience Member

I recently read that a group was introducing a new assault weapon ban for the United States, and I’m wondering how that is going to fare now?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

I’ll take a stab at it, Don might have a comment as well.  The ideal way to challenge a gun law would be a situation where all firearms were banned from a home.  Back in the 1990s, the ATF director wrote a letter to somebody in Texas saying that if you home school, you cannot have a gun in your home because it’s a school zone and you’re subject to the Gun-Free School Zones Act.  And that would have been the ideal challenge to bring a Second Amendment case, but the Justice Department wouldn’t defend that view and so it never became a case.

Those of us who have done strategy thought that the D.C. ban would be a good one to challenge because all handguns were banned, and that strategy ultimately did work. 

The thing about assault weapons is that in some ways, they’re the most constitutionally protected of all arms, if you’re talking about semi-automatic rifles, because they’re a mirror image of military weapons, although they’re not fully automatic.  But the press, and the media, and the politicians have done a wonderful job in denigrating these kinds of firearms with use of that term. 

Remember back, the rhetoric before the federal assault-weapon ban passed?  “They’re the favorite tool of drug dealers, and child molesters, and terrorists, and favorite tool of people who do shoplifting, and everything bad you can think of.”  So it’s been difficult to challenge those laws.  We’ve challenged them in certain states.  In California you don’t have the right to bear arms guarantee, but in Ohio, and Connecticut, and some other places, and the courts upheld those.  Colorado even.  I hope the time comes again when they can be challenged successfully. 

We know what the Heller decision holds.  We don’t know to what extent it would be held to apply to so-called assault weapons, but I look forward to the day when we have more case law developed that’s favorable to the Second Amendment and maybe these laws go by the wayside at some point.

Audience Member

Do you have an opinion about the prospects that the 5-4 decision will be reversed and the decision may go the other direction at some point in the future?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

I don’t think it will be reversed.  You may have a composition of the Court change radically where it would be watered down, and you would have an opinion deciding this doesn’t resolve the standard of review, for example.  Is it strict scrutiny?  Is it rational basis?  Well, that was rejected, but it might be some intermediate standard. 

And what these courts did that upheld the so-called assault-weapon bans were to say, oh, what a fundamental right the right to keep and bear arms is, but these are special weapons, and you can have all these other weapons to defend yourself, and so you don’t need them, and they’re especially dangerous.  And also, if the court changes for the worse then, yeah, you could have a watering down.  It would be very, very rare to have just a blanket reversal of that opinion.

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

I disagree with that only in this respect.  Let me, actually, as a prelude say that I’m not a Republican or a Libertarian.  I’m a liberal Democrat.  And I tell you, if you elect Barack Obama, the Heller decision will be reversed within his presidential terms.

Audience Member

What are the implications of Heller for bearing arms, as opposed to just keeping arms in the home?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, one advantage of the opinion was that it does speak to that issue, and it makes clear that bearing means carrying.  That was part of refuting the so-called collective rights view, because that view was that bearing arms only meant in the military. 

And so, of course, it’s all dictum, but on the other hand, I think it’s going to help out in the following respect.  It’d be difficult to frontally assault any state licensing requirement.  I mean, the court itself sanctions licensing for carrying.  And also banning concealed weapons, which was the 19th century way of regulating guns.

But I think it will help make procedures more fair.  If you can say that if it’s a right that’s enshrined in the Constitution, then when you have procedures to obtain concealed weapon permits, let’s say, then I think you’ll start seeing more procedural due process, because you can say that if it’s an interpretation of the law, or maybe an abuse of  discretion, then I think there’s less room for arbitrary and capricious decisions.

Audience Member

I have two questions. I read the decision on Heller by Scalia, at one point talking about regulating the buyer to appropriate civilians, or something like that.  And then later on, he talked about how the M-16 would be appropriate for a militia.  It seems it’s almost a self-contradiction somewhere in there.

And also, I volunteer in a community center where two of the largest political funds in San Francisco had their meetings, and I’ve heard them talk about wanting to ban firearms as to get rid of a voting block.  How valid do you think that is?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

 Well, as to the second, banning guns, this is a culture-war issue.  These people on the other side wish to impose their views of morality on those of us who are immoral enough to want to be able to defend ourselves. 

And it’s an interesting question whether—if the Heller decision does stand—those people may just stop bothering with gun control, because their point is to get rid of guns.  And if they can’t get rid of the guns, they might just decide to fold their tents and go away.

But on the other hand, passing more and more controls that make it more and more difficult for gun owners is something these people like, it satisfies their cultural desire to impose their views.

Audience Member

How would that apply to California trying to ban the lead bullet?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Can’t be done. Anything that can be produced by man, lawyers and legislators are stupid enough to pass – and judges are stupid enough to uphold.  That being said, still there is a relevant Supreme Court analysis. 

There was a case in which the state of Pennsylvania had made it extremely difficult to purchase condoms.  You had to do it through a drugstore.  You couldn’t just do it in an ordinary store, and then all kinds of rigmarole. 

And this was defended on the ground that, well, that’s not making condoms illegal.  It’s not doing anything except making it difficult maybe.  And the Supreme Court had no difficulty striking that down as a violation of the fundamental right of people to control their lives and control procreation. 

Audience Member

There are two bills, one in the Senate and one in the House, to enforce fifty-state reciprocity for carry permits.  Do either of you have an opinion on the likelihood that that’s got a snowball’s chance in hell of getting passed?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, I don’t think it’s going to pass anytime soon, frankly, although I think it could certainly be justified constitutionally on the basis of the 14th Amendment incorporating the Second Amendment.  But those of us who live in the states where people are for real, our laws are reasonable, the reciprocity exists between the majority of states now, I believe.  What is the best permit to get?  Utah.  I mean, you can get a Florida permit, you don’t have to be in-state and you can carry in most other states.  Most states now have shall issue and they have reciprocity with other states.

Audience Member

Except for California.

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Right, but you could get –

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

But you can get shall issue.

Audience Member

California doesn’t issue them. 

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

No.  Right.  Because it’s discretionary and you can deny it to people who don’t contribute to your campaign. But you could get a Florida license and carry it in most other states.  You do have that option.  Or you could leave California.

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Which I did.

Audience Member

So other than Cruikshank and Presser, what are the best arguments against incorporation for this side?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

The arguments against incorporation?

Audience Member

What are the best ones they can make?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

There are none.

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

There’s nothing.  I mean there used to be an argument about incorporation that said the Second Amendment is a right of the states, not a right of individuals.  So it can’t be incorporated.  As far as I know, no one has ever made any other argument.  Heller demolishes that argument and they haven’t come up with one yet.  Maybe they will come up with something, but I don’t think so.

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Can I just add to that?  Cruikshank only held that private action cannot deprive people of the rights to assemble and to keep and bear arms.  Presser only held that you can be required to get a license for an armed march by a military group in a city, and that it also said the First and Second Amendments don’t apply directly to the states, and we argued this in the Fresno Rifle and Pistol Club in the Ninth Circuit. 

And we pointed out that the third case in the latter part of the 19th Century, Miller versus Texas, the Court explicitly said the Second and Fourth Amendments don’t apply directly, and as to your argument that they apply through the 14th amendment, you didn’t make it in the corpus loss.  We’re not going to consider it. 

So the Supreme Court has never ever ruled on the issue, and the Ninth Circuit said, well it did in Presser and ignored Miller versus Texas.  For those of you who aren’t into this, sorry, but the Supreme Court’s never ruled on the issue, and now it’s made clear in Heller that it’s reaffirmed that it never ruled on the issue.

Audience Member

Do you have any thoughts about the future of anti–Second Amendment scholarship in the post-Heller era?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, the anti-scholarship, they’re very depressed and they’re in disarray.  They’ve been very smug all these years, and like I said before, they depicted us as crackpots and they could, without laughing, say that the right of the people to keep and bear arms doesn’t mean the right of the people to keep and bear arms.  I think you’re going to see a lot of money still coming in from Joyce Foundation and groups like that. 

The same likely suspects will be generating so-called scholarship about, well, it doesn’t increase the murder rate but it increases the suicide rate.  And as far as rebelling against the Supreme Court decision, that started already.  D.C. says they’re not going to register handguns if they’re semi-automatic.  They’re only going to register revolvers. 

So this fight has just begun.  It’s not over.

Audience Member

This question is to both of the presenters.  We have not talked about economic infringement, such as license fees, registration fees, and class discrimination.  I’d like your opinion on economic discrimination where you have onerous licensing fees or registration fees and a class discrimination against the poor?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

I have written in an early article, an article whose conclusions Steve branded Orwellian newspeak, that registration and licensing were perfectly constitutional, assuming that permits were issued and registration was allowed to all law-abiding, responsible adults. 

Now, the issue of speed and the issue of money are important issues.  So let me add that New York State can have all the registration and permit laws it wants, as long as those laws provide that if a woman comes in because her ex-husband has threatened to kill her, or because she’s being stalked, if she comes in on Monday, New York can make her hide someplace until Wednesday, and then issue her a permit, having gone through all the checks they want, and if that doesn’t work for them, then they can put up more money, billions of dollars, if necessary, to produce a 24- of 48-hour background check. 

That’s what I mean by registration and permits.  Those are the registration and permits which I consider to be legal.  Not something that any of the “anti’s” would be willing to accept. 

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

If there’s procedural due process requiring the permit to actually carry a handgun, let’s say concealed or whatever, I think that’s so well settled now that that’s not going to be questioned, and Heller makes that clear.  And it’s clear under the laws of most of the states. 

And also the federal instant check in which there’s a 24-hour limit on the amount of time they can keep your identity and the records have to be destroyed, I don’t think you’ll ever see a successful Second Amendment challenge to something like that. 

But if it’s just a pure registration requirement that you have to register to exercise the constitutional right, then I think there’re potential problems with that.  And my next book, by the way, is about how the Weimar Republic passed registration, and when the Nazis came to power, they used the list to disarm all enemies of the state and Jews.  And so it’s certainly bad policy.  And whether there will be a decision on that, I mean most states and certainly not the federal government, do not require registration other than for NFA firearms, for example. 

It’s not that generally done in the law in most of our society.  I don’t know whether you’ll ever see a successful challenge to that, but I still think just as a constitutional matter that for somebody to possess a gun, they are required to register—I just don’t see the difference in requiring Jehovah Witnesses to register, or people to register who are of some faith or political belief.

David Theroux
President, the Independent Institute

Don, don’t you think that Steve was insightful in saying that he thought that fees would be twisted as you’re saying they have been?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Yes, right of course.

David Theroux
President, the Independent Institute

Okay, how about over there.

Audience Member

Does this Heller case now invalidate the Ninth Circuit’s standing problems that we’ve had in California?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Yes.

Audience Member

So are Americans now going to be able to get standing to defend their Second Amendment right?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, we’ve got to go through this 14th Amendment incorporation business, too.  I’m sure if Reinhardt gets your cases, the challenge that’s out here now in the public housing in San Francisco, I’m sure he’d like to invoke that same doctrine, but it would be totally transformed.  And I have to say even in the Silveira opinion, Heller said that if it was an individual right, it would be incorporated like other Bill of Rights guarantees, because – and he actually called the Presser decision outdated. 

David Theroux
President, the Independent Institute

In the corner there?

Audience Member

One of my best friends is a police officer, but the truth be told, I’m very excited by this decision, because I’m hopeful that if most people can bear arms, the police are going to be more reluctant to continue their genocide of people of color and the poor. 

Is it the case that the more expansive our Second Amendment rights are, the less likely the police are to break down doors without warrants, to kill people on the streets, etc.?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

It’s up to you, Stephen.

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

I think your average cop on the beat, many of them are gun owners, and they sympathize with you, and in D.C. they’ll tell you to get a gun even if it’s illegal, if you’ve been burglarized.  There are police officers who misuse their authority.  Traditionally police in a repressive society, including our own, have been used as instruments of, like, white supremacy or otherwise.  And certainly in totalitarian societies they are instruments of genocide.  So recognition of this right, it’s a right against tyranny and a right involving independents and self-reliance of the individuals.

David Theroux
President, the Independent Institute

The traditional idea was that the gun is the great equalizer for those who are the weakest.  How about there.

Audience Member

If the licensing fee is exorbitant and people can’t afford it, does that meet the requirements of Heller?

David Theroux
President, the Independent Institute

That goes to your point.

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, let’s say you can restrict First Amendment assembly right, for example, in public places requiring permits, and I think the courts would allow for some small processing fee.  But if it was a fee that was large, and it was obviously intended to dissuade exercise of the right, I think a court would invalidate it and I think that would be the case here.

Audience Member

What do you see the impact of Heller being on the attempt to ban ammunition in California?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Well, I don’t want to answer that because I’m not familiar enough with the legislation.  As a general proposition, people are entitled to have ammunition for guns. That’s part of the Second Amendment right, and anything that a state does to make that impossible or very difficult to exercise, should be held invalid. 

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

If in California, because of the condor thing, you can’t use lead ammunition in certain areas, I don’t think that would ever be invalidated under the Second Amendment to use it for hunting.  But to have it, or possess it, or to use it at the shooting ranges, which meet EPA standards, I think that might have Second Amendment implications.

Audience Member

Thank you.  First of thank you both for you hard work on this case.  It’s phenomenal. I am worried about one thing though.  Assuming that this is going to be incorporated under the 14th Amendment, I’d like to know what your guess is as to the level of scrutiny required will be.  Because I see that as sort of the valve through which our rights to the Second Amendment can be diluted, whether it will be a rational basis or intermediate scrutiny or something worse?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Well, it won’t be a rational basis.  That’s for non-Constitutional rights.  That’s for activities that are not protected at all in the Constitution.  I think it will be considered a fundamental right.  There’re Supreme Court precedents saying that if it’s a constitutional right, it’s a fundamental right, and that particularly applies to substantive guarantees in the Bill of Rights: speech, assembly, arms bearing.  It doesn’t necessarily apply to the Seventh Amendment right to a jury trial if it’s over $10 in controversy, passed in 1791.

And if that’s the case it will be strict scrutiny, and it will be compelling state interests.  All the tests that we’re familiar with from First Amendment law.

Could the Court do something less than that, intermediate scrutiny?  The Court can fashion any test it wants, but one thing that’s neat about this case, in the oral argument Chief Justice Roberts said, where courts make up these standard of review tests, why don’t we just ask, does this law infringe on the Second Amendment?  And that’s what the Court ended up doing.

Audience Member

I’ve got a question on the state’s rights.  And it seems to me that when I travel from state to state, my First Amendment rights and search and seizure protections and so on, don’t change that much.  But from state to state, it’s this incredible patchwork of different rights, and I’m a criminal in one state and I’m perfectly fine in the next. 

At what point would the Supreme Court step in and say this patchwork is intolerable and cause some kind of a federal uniformity so it’s more of a seamless transition from state to state?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

I think in the real long run, if we build up a jurisprudence of the Second Amendment, a lot of case law, I think that’s a very legitimate point.  As it stands, many states have state preemption for the same reason.  You go from one city to another, one county to another, and it’s a patchwork.  It’s like a zillion different laws within one state.  And what the Supreme Court has done on First Amendment law and Fourth Amendment law is to standardize it for the whole country, to create a minimum base.

And so I would hope that’s where this would head, but we’re right at the beginning of this enterprise.  And I think this is going to go on for many, many decades before we reach a point like you were talking about.

Audience Member

What did Heller do to Miller?

David Theroux
President, the Independent Institute

You might want to explain what that means.

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Do you want to address this?

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Do you want me to handle it?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

Yeah, you can do it.

David Theroux
President, the Independent Institute

Explain what the consensus is.

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Okay, the Miller decision is a decision in 1939 by a very stupid justice and a very careless Court in a case in which only the anti-gun side was argued.  The challenger was dead by then, and his attorney didn’t appear.  And the Miller case said—it’s hard to summarize because it’s hard to understand what it is—but what it basically said was hat the Second Amendment right applies only to military-quality weapons, commonly owned among the population.

This Court has made it much clearer that what the right is, is to those kind of weapons that are owned in the civilian population.  Now if new weapons are developed, I don’t know what the hell that means, but the Court over and over again emphasized that handguns are the weapon of choice for very large numbers of Americans, and that’s why they are protected by the Second Amendment. 

Basically what Heller did as a practical matter was totally eclipse Miller.  From now on, decisions are going to be based on Heller, and nobody’s going to be citing Miller.  Of course, I could be completely wrong. It happens all the time.  But that’s my ballpark estimate.

David Theroux
President, the Independent Institute

Steve, would you say that one of the reasons why what Don is saying is true, and why the Heller decision is so important, is because this is really the first case on the Second Amendment?  Would you say that’s fair?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

It’s the first case where the Supreme Court has taken it seriously.  I mean, there’re reasons why we didn’t have many previous cases.  There was never any federal regulation until 1934.  And Miller was the first effort by the Court to do that, and it wasn’t much of an opinion. 

But there haven’t been any challenges that have reached the High Court because there was not a circuit split like developed with Emerson and Silveira, for example, and then Heller in the lower courts.  So like I said before, they’re just getting started.

David Theroux
President, the Independent Institute

How about the gentleman here.

Audience Member

What I wanted to ask about was a case that actually has affected us here in the Ninth District. I remember a meeting we had with the mayor of San Jose, and she looked at us and said, what are you complaining about, you have no individual right.  And she was referencing Hickman in 1994. 

How does Heller affect what we’re stuck with?  Because that’s basically when, theoretically, in this district we lost the standing of having an individual right. And I know Emerson made us feel better, but is Heller and/or the incorporation going to help us get past that?  Because that’s the basic standing we have now.

Don B. Kates, Jr.
Research Fellow, the Independent Institute, Author: Armed New Perspectives on Gun Control

Distinguish incorporation.  Put that aside for a moment.  The Hickman opinion no longer exists.  It has been demolished by the Heller opinion.  Okay? 

Now, the Heller opinion has only held the Second Amendment applicable to the federal government.  Until incorporation is decided, we don’t know what applies to the states.  But the Hickman opinion is gone, disappeared like the Avars, a people who disappeared so completely from Europe that for many years, their disappearance was considered remarkable.  And now, no one even knows who the hell they were. 

David Theroux
President, the Independent Institute

Okay, one more question.

Audience Member

Tell us what arguments we can anticipate from the San Francisco Public Housing Authority?

Stephen P. Halbrook
Research Fellow, the Independent Institute, Author: The Founders’ Second Amendment: Origins of the Right to Bear Arms

That the Second Amendment does not apply to the states through the 14th Amendment.  I mean, that’s the reason this case is brought as a test case.  That’s going to be their main argument. 

And the Supreme Court frankly is going to have to decide that eventually.  You have Ninth Circuit precedent on the Fresno Rifle and Pistol Club case that there’s no incorporation.  If the Ninth Circuit wanted to do the hearing on that issue, it would have to do that, but otherwise we’re stuck with that unless and until the Supremes resolve the issue.  That’s where all this is going to end up.

David Theroux
President, the Independence Institute

If you would all join me in thanking our two speakers.

Notes

[1] Don B. Kates & Gary Mauser, “Would Banning Firearms Reduce Murder and Suicide: A Review of International Evidence,” 30 Harvard Journal of Law & Public Policy 651-694 (2007).

[2] Guns Don't Die, People Do, by Handgun Control Inc. Chairman Shields (pp. 124-5).:

[3]  Don B. Kates, “Genocide, Self Defense and the Second Amendment,”  29 HAMLINE LAW REVIEW  (2006)

[4] Thomas B. Marvell & Carlisle E. Moody, “The Impact of High Out-of-State Prison Population on State Homicide Rates,” 36 Criminology 513, 517 (1998) (emphasis added); see ibid 518, n. 5 defining “major criminal” as “similar to what others call professional criminals, career criminals, or violent predators.”

[5] Gary Kleck & Don B. Kates, Armed: New Perspectives on Gun Control 20-21 (2001).

[6]  Wade C. Myers & Kerrilyn Scott, “Psychotic and Conduct Disorder Symptoms in Juvenile Murderers,” 2 Homicide Studies 160 (1998).

[7]  Jo Craven McGinty, “New York Killers, and those killed, by the numbers,” New York Times, April 28, 2006.

[8] Anthony A. Braga, et al., “Understanding and Preventing Gang Violence: Problem Analysis and Response Development in Lowell, MA,” 9 POLICE Q. 20-46 (2006).

[9]  Philip Cook, et al. “Criminal Records of Homicide Offenders,” 294 Jama 538-601 (2005).

[10]  Dean G. Rojek, “The Homicide and Drug Connection” in Blackman, et al,. Supra at p. 135.

[11]  Gus G. Sentementes, “Patterns persist in city killings: Victims, suspects usually black men with long criminal histories.....” Baltimore Sun January 1, 2007. http://www.baltimoresun.com/news/local/baltimore_city/bal-te.ci.homicide01jan01,0,4002621.story?track=mostemailedlink

[12] The one exception to this dearth of citations appeared in a pamphlet by the then mayor of New York which attributed to an the 1972 F.B.I. UNIFORM CRIME REPORT (but without any specific page citation) the finding that “most murders (73% in 1972) are committed by previously law abiding citizens....” John V. Lindsay, “The Case for Federal Firearms Control” (1973), p. 22; reprinted at pp. 1549 et. seq. in HEARINGS BEFORE THE SUB-COMMITTEE TO INVESTIGATE JUVENILE DELINQUENCY OF COMMITTEE OF THE JUDICIARY, U.S. SENATE, 94th CONGRESS, FIRST SESSION, v. II (1975).

The citation was fraudulent. The F.B.I.’s 1972 UNIFORM CRIME REPORT (UCR) did not yet exist when the Lindsay pamphlet cited it; and when the 1972 UCR eventually was released its section titled “Careers in Crime” showed  that 74.7% of murder arrestees that year had prior arrest(s) for a violent felony or burglary: 1972 UCR at pp. 35-38.

[13]  See, e.g. Robert Spitzer, The Politics of Gun Control (Chatham, N.J., Chatham House 1995) 186 ff. and  Adler et al., Correspondence, 272 JAMA 1409 (1994).

[14] Gary Kleck, Targeting Guns: Firearms and Their Control 236 (1997).



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