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The Supreme Court and the Battle for Second Amendment Rights
July 22, 2010
Stephen P. Halbrook, Donald E. J. Kilmer Jr.

Contents:

David J. Theroux

Good evening, ladies and gentlemen. My name is David Theroux, and I’m the president of the Independent Institute. I want to welcome you to our Independent Policy Forum this evening. As you know, we as an Institute hold events like this on a regular basis. They can be lectures, or debates, or panel discussions, and other formats that we use here in Oakland. Our program this evening is especially timely and momentous—really celebrating the latest victory in the support of the Bill of Rights of the U.S. Constitution especially as more and more people today are increasingly becoming concerned about the growth of federal power and abuse of civil liberties in the United States, more specifically the U.S. Supreme Court’s 2008 landmark decision in the case of Heller v. District of Columbia as many of you know ruled that the Second Amendment protected an individual right to keep and bear arms. Last month, almost a month ago, a second historic decision by the Court in McDonald v. Chicago now overturns the ban on handguns in the City of Chicago and elsewhere and also affirms further the Heller decision. One of the questions is, what was that all about? And the second one is, where do we go from here? Our event tonight is entitled, “The Supreme Court and the Battle for Second Amendment Rights,” and we’re quite pleased to have as speakers two really top legal experts, one being Stephen Halbrook and the second being Donald Kilmer.

Before we begin, for those of you who are new to the Independent Institute and are here physically, there’s information in the packet that hopefully everyone got a copy of. You’ll find information about upcoming events, books that we publish, and our journal, The Independent Review; this is the current issue edited by Robert Higgs. You’ll also find information about media programs and so forth, and for those of you who are joining with us live on streaming, which we provided for this event, you can find information on our web site at Independent.org. We would welcome everyone to become a member and a participant with our program. The Institute itself is a public-policy research institute. We sponsor studies of major social and economic issues, and issues of law are certainly one of the top priorities. Also in the packet is a flyer about our summer seminar program for students, and the second seminar, which we’re holding this year, will be held August 9–13 here in Oakland. Those of you who have children high school age or college age—we would encourage them to participate. It’s a one-week program, and it’s known as the “Challenge of Liberty Summer Seminars.”

In 2008, after nearly 70 years of virtual silence on the Second Amendment the Supreme Court did rule, as I mentioned, that the Second Amendment meant an individual right to self-defense regarding the ban on handguns in the U.S. capital. But in deciding that the federal government could not ban the ownership of handguns, the question remained whether the Second Amendment of the Bill of Rights also pertained to states and localities. This was a contentious issue and basically the claim of the mayor of Chicago. In a second historic ruling in McDonald that I mentioned, the Court decided that the Second Amendment does indeed apply to state and local governments based on the incorporation of the Bill of Rights by virtue of the due process clause of the Fourteenth Amendment. Why is this the case? Is the Court correct in its assessment? Why was the Fourteenth Amendment proposed in the first place? Why was it adopted, and what does this have to do with any of us today? To address these and other themes is why we’re holding this event tonight. We’re also quite pleased to be the organization that sponsors the publication of a number of Dr. Halbrook’s books, two of which we’re featuring tonight. The first is the book The Founder’s Second Amendment: Origins of the Right to Bear Arms, and the second is the book Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms. I want to point out that in the recent McDonald decision these books were cited six times.

Without further delay, I’d like to introduce our first speaker. Dr. Stephen Halbrook is a research fellow here at the Independent Institute. He received his J.D. from Georgetown University Law Center and Ph.D. in Social Philosophy from Florida State University. He has taught legal and political philosophy at various schools including George Mason University, Howard University, and Tuskegee Institute. He is the author of many other books. He is the winner of three Supreme Court cases, which I won’t list. You can ask if you’re interested, and it’s a real pleasure to work with Steve who has really proven that truth can prevail.

Stephen P. Halbrook

Thank you, David. Thank you all for being here. It’s a real pleasure. This is so déjà vu. Two years ago we did exactly the same thing after the Heller decision. At that time The Founder’s Second Amendment had come out, and a lot of the research that went into that book had been published previously, originally in my book That Every Man be Armed and then in other publications. Then the Supreme Court Heller case made good use of that research. One thing that I started doing as an undergraduate was reading the Reconstruction amendments debates. After the Civil War, Congress passed the Fourteenth Amendment and other amendments, and it had to do with making sure that newly freed slaves, African Americans, had all the same rights as everybody else because in their slavery they were not allowed to possess guns, to engage in free speech, to assemble, or do any of the other things that citizens are allowed to do. After the Civil War the southern states passed the Black Codes, which tried to maintain the same kinds of laws. I started studying that. That was in the late sixties, and eventually I published some law review articles on it. The fact is that the Fourteenth Amendment was intended to bring complete freedom to former slaves, including the right to keep and bear arms, and that states and localities could not infringe on those rights.

Back in 1989, California passed the first so-called assault weapon ban in U.S. history. It’s basically a rifle ban, the Roberti-Roos Law, and I brought a lawsuit out here called Fresno Rifle and Pistol Club contesting that case. We had a lot of the same research that ended up in this book, Securing Civil Rights, and also ended up in the Supreme Court decision that was just announced last month. Going back to the period when I argued that case in the earlier nineties in the U.S. Court of Appeals for the Ninth Circuit in San Francisco, the three-judge panel were skeptical about that. We had a press release after that argument, David, if you remember, and we got an adverse decision saying that, well, nobody really knew what they meant by the Fourteenth Amendment or whether the Second Amendment was supposed to be applicable to the states through the Fourteenth Amendment and basically poo-pooed the idea that the Second Amendment applied in the State of California.

So then we come forward and you’ll hear more about this—Don Kilmer has had a case going for some time now that actually resulted in the Ninth Circuit holding, I guess it was a year ago or two years, I’m losing memory, one year, and they flip-flopped and reversed themselves from the case that I had. What was wrong with me? They rule adversely to me, and then, Don, whatever. They say, yeah, we agree with you that the Second Amendment applies in California. A lot of water had crossed the dam. One thing I did, though after they ruled against me in my case, was I did get revenge. I had been working up these materials on the historical meaning of the Fourteenth Amendment and the intent to incorporate the right to keep and bear arms. I published a number of articles in law reviews, and then in 1998 I published, the book Freedmen, The Fourteenth Amendment, and the Right to Bear Arms. That’s the book that’s here tonight. There’s a new title to it, Securing Civil Rights. The way I got revenge was by first writing the book, and then the Supreme Court used that book as the main historical basis, or a major historical basis for the historical discussion in the McDonald case. If you read the McDonald decision, you’ll see not only that the book is cited, but you’ll see a lot of the same references and speeches that are in the book, citations to those speeches and references. I’m proud to say that I was the first one who found those references. That’s how I got my revenge against the judges who ruled against me and also against the California so-called Assault Weapon Ban, which I hope will come under increased scrutiny now because it’s an affront to your rights in this state that they could ban ordinary rifles, the AR-15 and very fine rifles like that that are commonly possessed by law-abiding people throughout the rest of the United States

One of the things that Heller decided two years ago was that the test for whether a firearm or weapon is constitutionally protected is whether it’s commonly possessed by law-abiding people for lawful purposes–and you see AR-15s in every shooting range in the country except for California, New Jersey, and one or two other places like that. I wouldn’t live here. I love your state though, and that’s why I’ve done all I can to try to help you. My wife’s originally from San Francisco, and I told her I’m not moving there. You’ve got to wait until I die, because they don’t like my guns in that state. I guess I should tell you a little bit more detail about the McDonald decision. It was written by Justice Alito. It’s a very well done opinion basically holding that the due process clause of the Fourteenth Amendment makes the Second Amendment apply to the states. What that’s about is the Fourteenth Amendment says no state shall “deprive any person of life, liberty, or property, without due process of law.” Over time, the Supreme Court has said that means that they can’t take away your right to free speech, your right against unreasonable search and seizure and things like that. Now at this late date finally they’ve gotten around after about a century of those kinds of cases to saying that the Second Amendment is also protected through the due process clause. In other words, you have a right to life, liberty, and property, and they cannot take those rights away without due process. It would violate due process to ban free speech or to ban the right to keep and bear arms.

A couple of issues that are going to come up or that have already come up, and there are some hidden messages in the opinion of the Court for us, the very first statute that is talked about in the McDonald decision to illustrate what its creators had in mind leading to the adoption of the Fourteenth Amendment was a Mississippi law from 1865 saying that basically African Americans could not keep or carry any firearm without a license from the local governing body. It was not a complete ban. You had to have a license. Does that remind you of anything, for mere possession or to carry it? Now, most states require a license to carry, but let’s focus on keeping for a moment, on a license to keep. That is kind of like a registration system, isn’t it? That is what they have in Washington, D.C. That’s what they have in Chicago despite the victory in McDonald. The registration systems were not at issue.

The other side in McDonald argued in favor of Chicago that, for example, besides gun bans, registration is a great thing. There is a long tradition in England of firearm registration. That’s right. In 1660, Charles II decreed that gunsmiths, gun makers, had to report all the names of people they sold guns to. Then two years later, 1662, they gave authority to all the lord’s lieutenants, those were basically state troopers of their time, that they could go and search and seize arms from anybody who was not considered loyal to the crown. England had this history of violating the right to keep and bear arms. Chicago cited that as an example of how we have this long tradition of regulation. The Slave Codes were regulation as well. D.C., back in the Heller case when it was being litigated, they bragged about how D.C. has long had regulations for firearms. Their first regulations were passed in, I think, 1802, and banned African Americans from having guns. It’s a sign, I think, of times to come. There was more than one reference in the McDonald opinion to the fact that you had to have a license from somebody to possess or to carry a gun. That is a word to the wise, those of us who are litigating issues like you can’t get a license from the sheriff to carry a concealed weapon, for example. It’s right out of the McDonald opinion. This is something that is a carryover kind of law from the Black Codes. Another good example is that one of the references in McDonald is to a report of the Executive Branch, and it was talking about the fact that in Louisiana right after the Civil War there were these peonage contracts. The people who had been slaves were now peons, and they would be allowed to live on the same plantation as before. Housing would be provided, and there were certain rules. One of the number one rules was no guns could be possessed. What does that remind you of today? Public housing—they provide you with the housing, and if you accept it, you can’t possess any guns. San Francisco had a public housing ban. It was just done away with about a year ago based on a lawsuit filed right after Heller. The District of Columbia continued to have a public housing ban, and they’re really all over the country even in states that recognize the right to keep and bear arms by their state constitutions. We’re fighting one of those bans in the State of Delaware, for example, right now.

That’s another example of how if you look at what was actually in these Black Codes that the Supreme Court said the Fourteenth Amendment protected people against, you’ll see that some of the same things reappear today. I think there is meat there for litigating cases today on the same subjects.

I mentioned the holding of the Court that the right to keep and bear arms was protected through the due process clause of the Fourteenth Amendment. Four justices agreed with that. Justice Thomas, who made the fifth vote in this case, would have grounded the applicability of the Second Amendment to the states under the privileges or immunities clause of the Fourteenth Amendment, not something you hear much about. What are privileges or immunities? The Fourteenth Amendment says no state shall deny any person “the privileges or immunities of citizens.” Back when the Fourteenth Amendment was first proposed in the Senate, by Senator Jacob Howard, he referred to rights, privileges, and immunities. Then he said that the provisions of the Bill of Rights, he didn’t say every one of them, but he said all of the important ones would be protected. He went on to read the ones like the First Amendment and the Second Amendment. Whether you get a jury trial in a civil case if there’s more than $20 at stake, the Seventh Amendment, that’s not necessarily a fundamental right because Jacob Howard talked about the kind of rights that don’t exist under tyrannies or in slave societies. If you don’t have that Seventh Amendment right, I don’t think that’s an indication that you live in a slave society or a tyranny, but if you don’t have a right to keep and bear arms or to assemble, you do have elements of those kinds of societies. He actually distinguished between rights on the one hand and privileges or immunities on the other, and it’s a very intricate legal doctrine. There was a lot of support for shifting from due process to privileges or immunities as the basis for incorporation of the Bill of Rights. I probably shouldn’t talk about it any more because it’s something where if you’re really into that historical scholarship, it’s going to be very important, but if I go into it in more detail and keep referring to these privileges or immunities, I might lose some of you.

Let’s go on to something more exciting. Justice Scalia and Justice Stevens, they had it out one last time. Justice Scalia wrote a concurring opinion where he said, “I agree with everything in the majority opinion or in the opinion of the Court, but I’m really going to get Justice Stevens one last time. He’s about to retire, and he really deserves it.” Basically it had to do with this, Justice Stevens wrote a dissenting opinion that was, I won’t say out of la-la land because I’m trying to be polite here, but it’s like enumerated constitutional rights don’t really matter very much, the right to keep and bear arms–come on, like who would believe in something like that? The Constitution protects personhood. When I start hearing this kind of thing I’m thinking Hari Krishna time or something. It’s like are you in touch with the cosmic consciousness of the universe and things like that because that’s the kind of rhetoric that you see in Stevens’ opinion. Judges, of course, are the ones who determine whether you have rights, and they look at these concepts that they make up as to whether you have these rights. Justice Scalia said this is meaningless. If it’s in the Bill of Rights, it’s explicitly protected. How can you deny that and make up all this other judicially created doctrine? That’s a great debate, the Stevens/Scalia debate.

One more point about the opinion, and then I want to mention the dissenting opinion. The Court in Heller said twice that the Second Amendment is a fundamental right. If a right is fundamental, it means that it’s a really serious right and judges should take it serious. Instead of me talking about what is called the strict scrutiny doctrine, I’ll just put it that way: we really mean it; it’s a real right. Respect it. They only said it twice. That wasn’t enough; you have all of these lower courts after Heller and various cases that are brought challenging different gun laws saying, well yeah, they said fundamental right twice but they didn’t really mean it. When he wrote the McDonald opinion I didn’t count how many times Alito said it, but I hope it’s enough now. At least a dozen times he said, well, Blackstone said it was a fundamental right. The colonists agreed with that. When the Bill of Rights was proposed, they thought it was a fundamental right. When they adopted it, they thought it was a fundamental right. After that in the Antebellum Period they thought it was a fundamental right. The Abolitionists thought it was a fundamental right. During Reconstruction they thought it was a fundamental right. Even today because of the fact that the majority of states filed an amicus brief in this case in support of Second Amendment rights and because the majority of the members of Congress agreed that it’s even perceived to be a fundamental right in our country. You could do a word search on your computer and see how many times they said it, but it’s like, have we said it enough now that it’s a fundamental right—do you get it?—to the lower Courts. That’s a very important aspect of this because if you tell judges there is a law regulating or restricting a fundamental right, they’ve got to have a really good reason, and it’s got to be something that is an exception to the right. For example, it’s reasonable not to be able to take a gun into a courtroom. It’s not reasonable to pass a law saying that you cannot have a gun in your home or you cannot sell guns at a gun show, which is Don’s case.

There is another approach that the Court took in the Heller case in particular. Instead of going into these doctrines of strict scrutiny, they took a categorical approach and said, look, handguns are the primary tool that Americans prefer for self defense. You can’t just ban it. They totally disregarded these findings made by the D.C. committee that recommended passage of the bill, these committee reports that go with laws like Roberti-Roos or like your local San Francisco laws. They find that, oh, guns are horrible and so many people are killed. It’s like they’re trying to make findings to justify what they want to ban. The Heller case doesn’t even mention any of these findings, and the McDonald opinion has one sentence mentioning the findings of Chicago and basically repudiates them, castigates them and says there’s been a failure of the political establishment in Chicago to protect the rights of minorities and poor people. There is so much crime in those communities, and you’re telling them that the good people in those communities cannot protect themselves. So there is a total failure. It’s like a failed state or a failed city if we want to put it that way.

Justice Breyer, as he did in his dissent in the Heller case, dissented in the McDonald case, basically saying that this right shouldn’t be incorporated, that if it’s going to be incorporated, if you’re going to recognize the Second Amendment applying to the states and localities, it should be done in a watered down way where anything goes, so then politicians can sing, oh what a wonderful right it is and then they can ban all the guns they want, whatever they choose to demonize and whatever they want to call it, if it’s an assassination weapon or an assault weapon, Saturday night special, all the names they come up with for guns to demonize them. Guess who voted with Justice Breyer in the dissent? Would this really surprise you, Justice Sotomayor, after all the things she said to the committee a couple of years back? She was on a three-judge panel that decided a case in the U.S. Court of Appeals for the Second Circuit, the Nunchuck case. New York State bans nunchucks absolutely, and they arrested a lawyer who had them in his own home for working out. He practices karate, a good sport, and they said, well the Second Amendment is not a fundamental right. Besides that, it doesn’t apply to the states. And when that happened, by the way, I was litigating NRA v. Chicago. I testified on the Sotomayor nomination, and I said she should recuse herself from the case. There were two cases consolidated, McDonald v. Chicago and NRA v. Chicago in Oak Park. She did not recuse herself, but what did she tell the committee members? Oh, I agree with the Heller decision. I don’t question any of that. I’m shocked, shocked—my favorite line from Casablanca. Now we have the same thing with our new nominee, Elena Kagan. With Kagan we have a lot of fingerprints. I think my favorite fingerprints are the notes that she took where she compared the NRA with the KKK and was concerned that they not get the benefit of a certain bill that would immunize people who did volunteer work from liability. My first reaction was to recall that in 1871, right in the middle of Reconstruction, the NRA was founded. It’s the oldest civil rights organization in this country. Guess who the NRA presidents were, the first seven or eight? They were all former Union generals who had fought in the war. One of them was Ulysses S. Grant after he was President of the U.S., and when he was President of the U.S. he took decisive action against the Klan for depriving African Americans of the right to keep and bear arms, not only executive action but signing into law the Enforcement Act of 1870 and the Civil Rights Act of 1871 that was meant to protect the right to keep and bear arms. Here we had NRA presidents, one of whom was a former U.S. President who had fought the Klan, basically, and Kagan is comparing the NRA to the Klan. She later said in her testimony that she was only taking telephone notes from what other people were saying when she made that comparison.

One of the cases I argued in the Supreme Court was Prince v. U.S. It said that the federal government could not mandate to the states or to local law enforcement doing background checks on handgun purchasers. Before that case was decided, the Clinton administration was worried they would lose. We had argued the case. It was pending. The Justices really beat me up when I argued it, and I felt pretty low, but then when they beat up the Solicitor General just as bad or worse, I felt pretty good. We had a good feeling, thinking we would win that case five-four, and we did. But there was a memo. Kagan was in the Clinton White House, and she suggested that if they lose the case, if the Supreme Court strikes down this law, that the President by executive action can make it illegal for a federal firearms licensee to sell a gun without having a background check done. We’ve gone from the President doesn’t just faithfully enforce the laws, he makes the laws. He would be making a law that the Supreme Court just struck down. What kind of view of executive power is that?

Then we had the drafting of the Clinton Import Ban. There were a number of rifles determined to be importable in the U.S. as sporting rifles. They were approved by the ATF, and our great friend from your lovely state, Dianne Feinstein, wrote a letter to Clinton saying that only criminals want these kinds of guns. They were the guns that were thumbhole stocks and all that, re-done cosmetically so that everybody would be happy. That directive was drafted by Kagan that banned all these new guns that had been just approved as sporting after the new criteria had been adopted by the Bush One administration that had banned previous guns that were importable. These are some of the things that we’ve got to worry about. It’s still going to be five-four, and I’m confident that in the future there will be more victories there, but it’s a very tenuous situation. One thing that we’ve seen twice now, when the District of Columbia lost the Heller case, they went from making life hard on gun owners to trying to make life miserable for gun owners because then they made it a lot harder to own any gun. It used to be if you wanted to have a 22 bolt-action single shot, you had to register it, but there wasn’t much more to it. Now you have to take a firearm training course. It expires after three years. You have to re-register it or you’re a criminal. You have to go through all of these gyrations and hurdles. We have a new lawsuit pending, Heller II v. District of Columbia, which I’m litigating. We’re in the U.S. Court of Appeals of the District of Columbia right now. Right after Mayor Daley lost in the McDonald decision last month, Chicago did the same thing and passed a law that’s trying to make it hell for gun owners even more than it has been previously. This fight will continue.

I’m very optimistic about the fact that if you go back before two years ago we didn’t have any Supreme Court support for our rights, and now we’ve got not only that the Second Amendment protects individual rights but that it even applies in a state like California. So, thank you very much.

David Theroux

Thank you very much, Steve. Incidentally, those of you interested, the testimony by Steve in the hearings for the confirmation for Sotomayor and Eric Holder for Attorney General, as well as for Elena Kagan, can be found on our website if you’re interested.

Our next speaker I’m very pleased to introduce. We’re delighted that he could join with us, Donald Kilmer, Jr. Don received his J.D. from Lincoln Law School of San Jose. Among the legal cases he successfully prosecuted was a federal civil rights suit against Santa Clara County, as Steve mentioned, arising when gun shows were banned at the county-owned fairground. This suit was a companion case to Nordyke v. Santa Clara County that went to the Ninth Circuit with Don Kates. I guess you did that together. Is that right?

Donald Kilmer, Jr.

No, Don wasn’t with me then.

David Theroux

This was on commercial free speech issues. He’s also been prosecuting a federal civil rights suit, Nordyke v. King, against the County of Alameda, that arose when the County similarly sought to ban gun shows at the county-owned fairgrounds in Pleasanton. Don is really a key person in the legal battles that we’re discussing.

Donald J. Kilmer, Jr.

First, thank you to the Independent Institute and David for inviting me here today. Sitting on a panel with Stephen Halbrook is like a kid who grows up watching their favorite baseball teams, and he gets to sit down with Mickey Mantle or something like that. Stephen has been a hero of mine for a long time.

I guess I was asked to speak about the future of constitutional litigation involving the Second Amendment, but I guess I’m really going to talk about both the past and the future because the Nordyke v. King case has been going on for 11 years now. I’ll give you a quick update on that. The case went en banc after the decision came down last year in April of 2009. Neither side asked for en banc review. An en banc review is a procedure whereby after a three-judge panel makes a decision, the entire court takes a decision because somebody feels they got something wrong. Normally, en banc review is a result of the parties asking that the case be re-looked at. In our case, neither side asked the court to re-look at the case. It came out as a result of a Judge on the Circuit requesting an en banc vote. It went to the entire 26 judges, I think, and there was a majority vote to have it re-heard. The procedure in the Ninth Circuit is for just 11 judges to look at it. We re-briefed the case. We argued it in September of 2009, and while we were arguing the case the petitions for review in McDonald were pending. The Ninth Circuit kind of punted and said, well, we’ll wait and see what happens with McDonald. The McDonald petition was granted, and the rest is somewhat history. The McDonald case went up and was argued.

The decision in McDonald, of course, affirmed the original three-judge panel in Nordyke. They did a due process incorporation analysis so that the Second Amendment does apply here in the State of California. It’s somewhat of a unique legal trivia answer because California does not have a right to keep and bear arms in its state constitution. California, Iowa, Maryland, New York, and I believe Illinois and New Jersey—no, not Illinois, they have one but it doesn’t matter, sort of like Hawaii and Massachusetts. In any case, there is no right to keep and bear arms in the state Constitution, and the California Supreme Court in the decision Kasler v. Lungren in 2000 made that a central point in their opinion when they refused to strike down the California Assault Weapon Ban on equal protection grounds. Paraphrasing, the California Supreme Court said because the right to keep and bear arms is not a fundamental right under the federal Constitution, nor is it a right secured by the state Constitution, there is no equal protection cause of action for people to complain about with regard to the different kinds of rifles they own. Of course, anybody familiar with firearms understands that “assault weapon” is a slick marketing term. It doesn’t mean anything. It’s just there are different kinds of rifles. Some of them look mean. They’re black. They’ve got flash hiders and collapsible stocks. Some of them look like Grandpa’s hunting rifle, but they all function the same. The point of the Kasler case was to try to bring a cause of action saying, look, this is an equal protection issue. You’re criminalizing the conduct of some people. You’re not criminalizing the conduct of others.

Well, one of the nice things that will come out of the McDonald case some time in the future without giving away litigation strategy in a public forum is hopefully somebody will challenge the assault weapon statute again and this time say, well now it’s a fundamental right and being that the Court already found that there was what appeared to be an unequal application of law based on frivolous or non-important features, maybe we’ll get a different re-hearing or a different result. We’ll see what happens.

The Heller decision is kind of special to me in one interesting way. A lot of people mark events in their lives as to what happened to them when a certain thing took place. Well, I was actually in Pasadena arguing an en banc case in front of an 11-judge panel on the Fourth Amendment on the morning that Heller came down. It was a civil rights case involving the Fourth Amendment right to be free from unreasonable search and seizure and in that case, I believe it was Fisher v. San Jose, Mr. Fisher had holed himself up in his house saying he had a right to keep and bear arms. He didn’t want the police storming his house and told them to get off his land. In the case it was interesting. Mr. Fisher hadn’t committed any crime. Unfortunately, he was drunk when he was handling his guns. Although it’s stupid to handle firearms when you’re under the influence of alcohol, it’s not illegal. We brought a suit claiming that the police exceeded their authority by basically storming Mr. Fisher’s house using various explosive devices, water cannons, and tear gas to drag him out of his house. We won the case in the initial round, and the case went en banc. There was some tangential issue about guns, but it wasn’t a gun case.

On the morning that the Heller decision came out, I knew it had come out because I was watching my computer while I was getting ready for the arguments. I appear in front of the 11-judge panel, and Judge Alex Kozinski looks at me and he looks at opposing counsel. He says I can never tell which lawyer is representing which party, and I think Judge Pregerson looked at him and said look at the one with the ponytail. He’s probably representing the defendant. Everybody laughed about that one, and then Judge Reinhardt made a comment about, well, it turns out that drunk, old Mr. Fisher was right because Justice Scalia said in an opinion this morning that the Second Amendment is a fundamental right or it’s an individual right so it turns out Mr. Fisher was right. We should just dismiss the case and send him home. Judge Reinhardt actually ended up agreeing with me on that case, but we still lost the decision six/five. Anyway, I have this special anecdote that I deal with the Heller decision.

In any case, after the Heller decision came out we had been litigating the Nordyke case for eons it seems now. Initially, we filed the case, and it was a preemption case. We made the argument that California already sufficiently regulates gun shows. There was the Gun Show Enforcement Act of 2000. We also made a First Amendment argument that gun shows are quintessential gatherings of people who are meeting for a common culture and for a common message to support their right to keep and bear arms. Initially we lost that issue. However, there was a footnote in the decision by the original three-judge panel. This is a facial challenge to the ordinance. We don’t know what would happen if the plaintiffs did an as-applied challenge. Everyone thought the case was over when we lost, and we were sent back to the trial court. I filed a motion to amend saying, well, I want to make an as applied challenge now. We made an as applied challenge, and we got to summary judgment. Again, we lost so I don’t know why anybody wants any legal advice from me. I’ve been losing this case for 11 years. In any case, then the Heller decision came out. Kudos to Mr. Alan Gura, he saved my case twice now, the Heller decision came out and said, yeah, the right is fundamental and it’s an individual right. You don’t have to be a member of a militia. However, we still had the incorporation question to go.

Well, of course the barrier to my three-judge panel finding that the Second Amendment was incorporated was the case that Mr. Halbrook lost earlier, but he didn’t really lose it. He just simply laid the groundwork for me to kind of like kick it through the uprights because he’d already made the touchdown. All I had to do was point out that the reason he lost was because the original three-judge panel in Fresno had a false premise. Heller fixed the false premise, and that’s how the three-judge panel in my case found that the Second Amendment applies to the states. The whole point of the Fourteenth Amendment, and if you haven’t read this book I encourage you to do so is that the whole point of the Civil War Amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments was to prevent the apartheid that eventually did happen in the South.

The Reconstruction Congress made a pretty good start at trying to right the wrongs of slavery. Unfortunately, the Cruikshank decision and later decisions after that kind of undid what the Fourteenth Amendment was supposed to do, and there were another sixty or seventy years of oppression and virtual apartheid in the South until the sixties and seventies. Finally, we have vindication in the McDonald case, and if you read the decision or if you’re inclined to only read part of the decision, which I don’t know why you would be, but if you’re only inclined to read part of the decision, I encourage you to read Justice Thomas’s concurring opinion. It is perhaps the most magisterial thing I have ever read that the Court has done. It’s almost like you wrote his opinion for him, Steve, and he kind of cribbed from your book here. In any case, I’m somewhat circumspect regarding the future of litigation in California because we don’t want to give away litigation strategy. I work for quite a few public interest foundations, Calgun’s Foundation being one of them. With Calgun’s help we have been doing a lot of fieldwork so to speak. We’ve been getting a lot of criminal convictions either dismissed or overturned. We’ve been doing some appellate work already trying to help define the standard of care or the standard of scrutiny that the Second Amendment should be applied to. We have a case pending in the California Court of Appeals right now dealing with what must a government prove to take guns away from somebody when there is an allegation that they are a threat to themselves or others. No longer are counties and cities going to be able to just come in and take guns without having to prove anything. They’re going to have to go through a vigorous due process right.

We’ve also had some cases pending in federal court. I’m honored to have Alan Gura as my co-counsel on a couple of cases out in the Eastern District challenging California’s unsafe handgun list. The list is completely arbitrary in California. There are guns that are approved for sale in California, and then there are their exact duplicates that are the wrong color that are not approved for sale in California. There are right-handed versions that are for sale, but the left-handed version isn’t. So, California is going to have to do some work to show that there is even some kind of important or even hopefully a compelling interest in having a list of guns that seems—on first blush—to be arbitrary and capricious.

A somewhat more controversial issue has to do with the carry permits. A lot of people keep talking about concealed carry permits. Well, if you read the Second Amendment, it says keep and bear, okay, and that means that theoretically you should be able to carry a gun anywhere you go. I mean if the right is to carry a gun for lawful purposes, and one of the primary rights recognized is the right of self-defense, you don’t lose the right of self-defense when you cross the threshold of your home. Now, California may have a public policy wherein they want to state, well, you can carry a gun, but we prefer that you carry concealed. If you’re going to carry concealed, we’d like to make sure that you’re not a bad guy. That is probably going to pass Constitutional muster. That’s probably going to pass some form of scrutiny that a Court is going to put to it. What probably won’t pass is the completely arbitrary and capricious way that permits are handed out now, and that’s basically by sheriffs and police chiefs. Based on the research we’ve done, there doesn’t appear to be any rhyme or reason to the way the permits are handed out. People with restraining orders against ex-lovers and ex-spouses are told, well, your restraining order is kind of like a permit, but it isn’t really. It’s an affirmative defense if you’re charged with carrying a weapon. The only way in which you can avoid an arrest is if you actually have a permit. Hopefully, we’ll get the sheriffs in line. There’s a case out of San Diego that I’m not personally involved in where a District Court judge made a specific finding that the San Diego Sheriff’s Department appears to be engaged in some unconstitutional conduct.

Future litigation with regard to the right to keep and bear arms will include pretty much a lot of procedural issues so it’s kind of a precursor or a hint that it was incorporated under the due process clause. There are a lot of laws in California that don’t appear to recognize any Constitutional limitation on the process for taking guns away from people. For example, in the State of California if the police appear at your house because there’s a disturbance, this is Penal Code Section 12.0.28.5, even if they don’t make an arrest under statute they’re entitled to take any guns that they see. Now, there is a procedure in the statute whereby you can petition to have the guns returned to you, but theoretically the government can prevail on the case if it can make a showing that to do so would be a danger to anybody in the household. That might make sense if somebody was arrested for domestic violence and the guns were taken as evidence and they need to be kept by the government. But if there are no charges pending and it was just a loud argument between a husband and a wife, I don’t know if I want a judge deciding that he is going to start deciding who can and can’t have a gun based on what he thinks is right. It certainly shouldn’t be by a preponderance of evidence if the theory is a danger to yourself or others or something like that.

Those are some of the areas that are going to be fruitful ground for litigation. California is a target-rich environment. There’s a lot of stupid legislation in the state. There are a lot of cities and counties who think that they have the power to pass any law they want to. I know that Chuck Michel down in southern California has got a cottage industry in sending out pre-litigation letters. Keep your eyes and ears open. I mentioned them earlier. Calguns is a great source on the web for developments in California law. I don’t think you have to be a member or anything to look at their web site. With that I’ll turn the podium back over to you, David.

Audience Q&A

Participant

This question is for the first speaker. I have to take some exception to the characterization that you made of California gun laws. Unlike most laws that seem to be taking guns away from people, I’m not in law enforcement, but there are at least four people in this room including myself who are required as a condition of employment to go out to the gun range and qualify once a year with three different weapons. Every time I go out there I see lots of AR-15s and AR-15 derivatives. I don’t think that you should make the carte blanche statement that you did that you would never come to California because they don’t like your gun. I think if you’re willing to bring your AR-15 with a magazine restriction on it, something less than 35 or 40 rounds, you’d be entirely welcome. That’s all I have to say. I look forward to your response.

Stephen Halbrook

First of all, the original Roberti Roos law specifically mentioned Colt’s AR-15 as banned, and any gun that has Colt AR-15 engraved on it is banned in California no matter what the characteristics. You could take the pistol grip off. You could fill in the hole where the gas goes through to make it semi-automatic. You could do anything, and just because it’s called that, the name itself is banned. Then there are the characteristics. There are things you can do to take a gun that looks like one, like Colt brought out the Colt Sporter after that, and of course there are a lot of other generic guns that are similar to it. Colt Sporter was not an AR-15, and it was not banned originally. Then California adopted the generic definitions including the pistol grip that protrudes conspicuously beneath the action, but it’s still got to have a detachable magazine. There is a device that you can make the magazine non-detachable because if you have to use a tool including cartridge case to put push the button of the detachable magazine, then it’s no longer detachable.

On Calguns.com there’s a good analysis of this about ways of getting around it. There are guns in California that look like AR-15s, but there’s something about them that makes them legal such that they’re not the original full configuration AR-15s. Some of them are Colts, and there are other brands as well. I’m using AR-15 generically.

Donald Kilmer, Jr.

Can you imagine if your right to print was only available in California if you printed on paper that was 15% recycled, or the ink only had a certain lead content, or that you could only use a certain font. If it’s a right, then it’s a right. The point is this. The only kind of criminal work I do in my office is weapons cases. I don’t do drug cases. I don’t do theft cases. I don’t do anything else. I have the pleasure of representing some of the most upstanding law-abiding citizens I’ve ever met. It’s usually somebody who has no criminal record who got caught in their car or going to or from the range with what a cop thought was an AR-15. It probably wasn’t an AR-15, but they had to spend thousands of dollars to hire some shyster like me to go to Court show the district attorney where he’s wrong and have the case dismissed. That is an injustice. That is a chilling of the right, and that’s the problem with California’s ungodly Rube Goldberg machine of laws. If there are going to be laws, they need to be simple.

Participant

Could you back up a little bit and speak about the importance of the Second Amendment as reflective of the notion of individual rights in general? It seems like for many people that are not gun people or who live in suburban communities where there is rarely that much crime, the whole notion of the right to bear arms for self-defense or to be part of a militia seems a little bit abstract, but there’s something important about this in terms of the nature of our society and who we are as a people that I think the Second Amendment might be speaking to. Could you comment about that?

Stephen Halbrook

That’s a great question. St. George Tucker who wrote a book in 1803, The First Commentaries on the Bill of Rights, said that the right to self-defense is the first law of nature and that governments that try to take firearms basically are approaching tyranny. Why is self-defense the first law of nature? You can’t do anything else in life if you can’t defend your life, and that’s why for example during the Reconstruction Period the freed slaves and also carpetbaggers who came down after the war, Republicans, were often threatened with violence at political meetings. You can’t even exercise your rights to free speech and to assemble in some societies without being able to protect yourself. Even if we take it outside of the context of an oppressive social system like existed there, we have the right of individual self-defense against criminal conduct. For those suburban places where there might not be much crime, firearms are tremendous recreational tools. There’s nothing like shooting at clay pigeons, and there’s nothing evil about it. There’s nothing evil about the Olympians who shoot with handguns or ordinary people who shoot with handguns at target ranges. It’s a wonderful wholesome activity for families to be engaged in. Hunting is a wonderful activity by the same token. There are many, many reasons to possess guns, and they include the most serious reasons like self-defense and defense against tyranny but also reasons for recreation sport and hunting. It depends on whom you’re talking to as to what might be persuasive. Not every society is perfect and not every society remains perfect, and if you think about the conditions that are described in this book, Securing Civil Rights, the baseline for survival for many people in those days was the ability to merely possess a gun to defend their families.

Donald Kilmer, Jr.

It’s not my idea; it’s Stephen’s from his book, and that is there were actually some Reconstruction legislators when they were debating the Fourteenth Amendment who made the argument that, well, we don’t need the Fourteenth Amendment because the Thirteenth Amendment that abolishes slavery has an implied right to keep and bear arms in it because taking guns away from people was a badger incident of slavery, which is what the Thirteenth Amendment abolished. The idea that being stripped of the right to keep and bear arms puts you in a class or a position of servitude is not a new idea.

Participant

Considering these recent legal developments, what can we do legally and politically to fix this issue so that people are not arrested for transport and carry nationwide?

Stephen Halbrook

Everybody has a role to play. Everybody is important whatever walk of life you’re in, and the best advice I can give you is join the National Rifle Association, join other firearm organizations, join gun clubs and be conscious of your rights. For example, how many of you know there’s a federal law that if you start at a place where it’s legal to possess a gun, go through a place where it’s illegal to possess it, to a place where it’s legal that you’re immune from prosecution under state or local law because the questioner did make the point about traveling with guns or transporting guns nationwide. If you go from Virginia to Maine on a hunting trip and you go through the State of New York, for example, and you’re going handgun hunting in Maine, in New York State it’s a crime to possess a handgun. It’s only an affirmative defense if you have a license, and it’s only available to a New York resident. The federal law protects you. You can travel by airline with firearms under that same law. The best advice I can give you though is if you are in a legal situation, a lot of lawyers don’t even know about that law or other laws that might be pertinent. You’ve got to find competent legal counsel from those who know those issues.

The law that I’m talking about is part of the Firearm’s Owner’s Protection Act of 1986, and it’s 18 USC 926a. That’s the very law that was passed because of these states that have restrictions. Congress wanted to make sure that people could travel interstate in this country without fear of local laws that restricted that kind of travel. A lot of people were arrested when they had accidents on the New Jersey Turnpike. New Jersey has very strenuous laws. The Firearm’s Owner’s Protection Act is the very law that I’m talking about that protects this right to transport firearms as long as they’re inaccessible and unloaded. Depending on the type of vehicle, for example, if it’s a car, if it’s in the trunk. As long as you meet those standards, you can transport the firearm.

Donald Kilmer, Jr.

I’d like to add to that another idea that I’ve come across in the past couple of years: be a proud gun owner. I’ve been a member of the bar for about 15 years now, and I’ve been doing gun litigation ever since I was a new lawyer. I get some strange looks from judges and fellow members of the bar but pretty much a lot of silence, stone silence. Ever since Heller and McDonald have come out, and of course the cases were very well publicized and controversial and got the public talking about it, I now have some judges and some lawyers coming up to me and talking about guns, and talking about the guns that they own and how they like to shoot. Gun is no longer porn. It’s okay to talk about guns as something that’s good. It’s an instrument for exercising a Constitutional right. To add to what Stephen said, be a proud gun owner.

Participant

I’m wondering if you might comment on stare decisis. I’m not a lawyer, but Heller was five to four, so I expected McDonald to be maybe six to three or something a little more decisive than five to four. How confident can we be that the Second Amendment will stand in the future if you have an opinion?

Stephen Halbrook

You can be confident as long as the five/four balance doesn’t change. Thank goodness that Kagan is replacing Stevens. Two scenarios could happen. If it happened in the near future that the balance was changed you could have a reversal of one or both of those cases. Or if like free speech cases, if we build up a couple of decades of cases, it gets to the point where there’s no turning back. But then if the balance changes, something else can happen, namely what a wonderful right this is but nothing ever seems to violate it. Yes, it’s an individual right. Every one of you possesses it, and it applies to the states, but they can say all rifles are potential sniper rifles and therefore ban all rifles. You could have a result like that where a right is recognized but it’s whittled away. There used to be a phrase, the incredible shrinking Fourth Amendment. It has to do with the fact that if you read the Amendment, you think warrants are required, but there are so many exceptions where warrants are no longer required because of judicial decisions. How much of it is left? I think a lot of it is left, but a lot of it is gone as well. Those are the two things that could happen. There could be a complete reversal, or if we’ve gone too far that that’s not possible, there can be whittling away at the right.

Participant

A couple of days after McDonald was decided America’s newspaper of record, The New York Times, wrote an editorial and, not surprisingly, the legal scholars on the Times decried the decision. They had a few letters published, which were going along with the Times’s editorial view. However, one of them was very interesting, and that letter discussed the fact or made the statement that the Second Amendment’s reference to a well-regulated militia was not a reference to a government organization, but rather something that we would call an NGO, something like the American Militia, in other words a group of private citizens who would organize themselves.

Is there any basis historically or legally to support that kind of distinction as opposed to the use of the Fourteenth Amendment and an individual right?

Stephen Halbrook

I think as originally understood a militia could be a broad concept. You had the term “well-regulated” militia used often, not only in colonial times but even in England, and you had two uses basically. You had militias that were organizations that were under auspices of states once they were newly independent states. They declared themselves independent. Each state had its own militia law, and you had to be enrolled. Every man had to be a member of it, and you had to provide your own arms. The first Federal Militia Act of 1792 was the same way, but you also had for example George Mason and George Washington starting up the Independent Fairfax County Militia Company in 1774. They put up some of the money for it to help people out who didn’t have enough money to get equipped, and those people voluntarily formed these militias basically in opposition to the Crown’s forces and the Crown’s militias. I think the term as originally understood was flexible enough that it would include any association of law-abiding people who come together for a common purpose of exercising in martial endeavors, marksmanship, and things of that type.

Participant

On the carry permits in California, if you have a right to bear arms, how can the permit be left to the discretion of a local official without any objective standards? In other words, the sheriffs or the chiefs of police under the California statute are entitled to grant or deny the permit on their individual whim without any standards. If it’s a right, how can it be left to somebody’s discretion? That’s the first question.

The second one is sort of a question but more a comment. Why is the legal profession so shy that it will not state flatly that Justice Sotomayor revealed herself as a perjurer? It’s clear. It’s a blank statement. Why does the legal profession shy away from facing an obvious fact?

Stephen Halbrook

That’s a loaded question since I may appear someday before the U.S. Supreme Court and God forbid Justice Sotomayer sees this. However, if I were to defend her on a charge of perjury, I would simply point out that all she said in her testimony was that she agreed with Heller, which meant she agreed that the Second Amendment was an individual right and you didn’t need to be a member of a militia. I don’t know that she made any comment in her testimony with regard to incorporation.

Participant

She said she couldn’t comment on that.

Participant (?)

She said she would reverse the Heller case, a pointed opinion that said that she would reverse Heller.

Stephen Halbrook

I don’t think she’s guilty of perjury by the standard of perjury. With regard to the first question you had regarding carrying and the law in California right now, there is this controversial practice that’s taking place right now that the legislature is rushing headlong to try and cure called unloaded, open carry. It’s not illegal to carry a weapon in California in public as long as it is exposed and it’s unloaded. It’s a dumb practice because you’re just going to draw attention to yourself and you’re going to have a lot of police officers giving you a lot of attention you probably don’t want to have. The permit is only required for concealed carry. The states of Alaska and Vermont do not regulate concealed carry, and maybe Arizona is going the same way. Perhaps in a perfect world that would be the ideal, but Heller and McDonald affirmed as well that regulations on the concealed carrying of weapons are probably going to be okay even with the Heller and the McDonald five. We’ve got to live with that. Where there is room for litigation is that clearly because we’re still talking about a fundamental right there have to be objective standards. It cannot be an arbitrary and capricious awarding of permits.

Participant

I’m very interested to see the interest there is in defending civil liberties because I think they’re important, but I’ve been struck by the relative silence of many members of the NRA community over the challenge to our civil liberties in other areas, with the challenge against habeas corpus, with the expansion of the secrecy with which our government now operates. There was a series of articles in the Washington Post this week that show that we now have a national security state that views us all as enemies. The surveillance state has expanded greatly, and I think that those pose much greater threats to our individual liberties than whether we can own arms or not. They could take us out as individuals very easily, but with the threats against habeas corpus the threats against our own privacy rights, our rights to our own liberty. I don’t know why particularly among this community there isn’t more interest in defending us against those sorts of incursions on our freedoms. I think there should be much more attention paid to that because that’s where the real threat is. That’s the sort of police state practices that we objected to when the U.S.S.R. practiced them. Why we don’t object to them as much here baffles me. Do you have any comment on that?

David Theroux

One thing I might mention is that the Institute is completing a book currently on habeas corpus for the very reasons you’re giving, and also I would recommend going to our blog called the Beacon. One of the most recent posts by our senior fellow, Robert Higgs, is applauding the Priest articles that you’re referring to in the Washington Post, part of a series they’re doing.

Participant

Higgs is a hero, but he’s very much out of the mainstream of even the Independent Institute and certainly does not reflect the view of most people on the right.

David Theroux

I think you’ll find what the Independent Institute does is cutting edge on the whole issue of civil liberties. I’ll recommend that work, but I’ll turn it over to Steven.

Participant

I’d like to direct this too because I sense our speakers here perhaps should have an interest in the broader question if we were going to discuss the broader question of our civil liberties. How does the attitude of say the NRA for example speak to these issues? I think they are far more important in terms of the threats that we face from our government than the right to own an AK-47 for example.

David Theroux

One of the things before I turn to Steve, again, is that the rise of national security stages certainly in the post-9/11 situation with the PATRIOT Act and many other measures, which includes rendition and all the rest of it is a very serious problem. One of the very great advantages in my opinion of what Steve and others have been doing is to insist that the Bill of Rights incorporation is something that is key. Fortunately, these decisions have been made, and our view is that hopefully this will open up a lot of minds and legal precedent to these consistent interpretations.

Stephen Halbrook

As we speak, the NRA is involved in strong opposition to bills in Congress that would take away your right to own a gun if you’re on a terrorist watch list, or no-fly list, or any of those secretive lists that who knows who compiles, lists that you can’t get out of, lists that Teddy Kennedy was on and [Justice] Ginsberg was stopped at an airport once for being on one. There are some people that aren’t qualified to own guns maybe, but Ginsburg would be okay. She’s not a violent person. There are special interest groups on various topics, and those groups cannot be effective unless they bring everybody who has an agreement with that particular agenda. No group can be everything to everybody except the Independent Institute. I think most likely everybody in this room agrees with what you’re saying. I have a strong civil libertarian background, and I can tell you that when the Waco and Ruby Ridge incidents happened and we had this police state kind of mentality, which we have certainly an element of now as well, but we had a particularly strong one then where federal agents could go around and shoot boys in the back when they ran away and start conflicts that result in scores of people being killed. The NRA, the ACLU, and the American Criminal Lawyers Association formed an alliance to try to work together and fight that kind of police state mentality. When you have a single issue organization and an issue like that confronts it, for example the issue of being on the terrorist list where the government can deny you the right to even buy a gun, it’s an issue that affects that group and they can take action. There’s another NRA, the National Restaurant Association, and you wouldn’t expect them to be involved in issues having to do with boating in the non-fishing context. All I’m trying to say is that you’ve got to have a division of labor. I work primarily on the issue of the right to keep and bear arms, but I’m certainly as a citizen interested in not seeing our country become totalitarian for the same reasons you’re talking about.

Participant

To both of you, it seems to me that we still have some vestiges of the Black Codes, specifically disparate enforcement in African American and other communities of color, and certainly disparate sentencing, and as applies to weapon charges and to so-called gang enhancements. I’m wondering both of you, you talked about an apartheid extension in the South, and you have written about the Freeman Acts, what can you say in reference to NRA litigation to protect and not chill the right to bear arms in those communities? What are either of you doing in that regard, or who else is litigating in that regard?

David Theroux

There are a variety of groups involved in guns rights litigation.

Stephen Halbrook

I’ll just make a brief comment, and I think Don would probably comment also. Washington, D.C.’s first gun law was that African Americans couldn’t own guns, and I’ve represented on multiple occasions African Americans in Washington, D.C. trying to restore their right to keep and bear arms. I’ll mention one name, Absalon Jordan, he’s been a community activist in Washington, D.C. on behalf of the African American community particularly in regard to the right to keep and bear arms since the seventies. Sandra Seegers is another person who has done the same in Washington, D.C. The elected leadership frequently are under the control of a political party or political factions that don’t trust the people with arms, and so you have these kinds of restrictive laws passed that have the most impact in communities that are poor minority communities and you have that acknowledged in the McDonald opinion, the fact that here you have Mayor Daley. They get these laws passed, and where are most people getting killed and who are most of the people getting killed? It’s the people in the very communities where these laws affect them the most because the law-abiding people in those communities cannot possess firearms. I think any organization that’s promoting the right to keep and bear arms in the litigation context is going to be on the lookout for that. The public housing context—I represent an individual in Washington, D.C., living in public housing and they said he couldn’t have a gun. It’s the poor people obviously by definition who are in public housing. You’re telling them basically that if you live in public housing, you can’t have a gun. You don’t have all of your civil rights. I think we’re all against that.

David Theroux

One thing I also might mention is that the natural tendency for government mandates, regulations, and so forth is that those who are the least politically influential end up paying the price, and they’re the most discriminated against because they’re the most marginalized. It’s least costly for those who are in political authority to be accountable for it.

Donald Kilmer, Jr.

The racist root of gun control is pretty well documented in Stephen’s book. Even in California: as California entered into the Union and started putting together a legislature and drafting its own public safety statutes, it was very common to read city and county ordinances and even state laws where the discussions were very racist. The particular race that was attacked out here in California was the Chinese. The bigger disparity that I find in my practice is between urban and rural counties. I live in Santa Clara County and practice there so I’m kind of on the edge of the Bay area, between the densely populated urban area and the more rural areas out toward the Central Valley. You get a guy who calls your office and says I was coming out of the field hunting and I forgot to take a bullet out of my rifle. I got pulled over and I got charged with having a loaded gun in public, Penal Code Section 12.0.31. You go to court and you tell the judge what happened. The judge says, “Okay, give him his gun back. It’s a $400 fine. See you.” That same charge in downtown Oakland will get somebody a mandatory minimum sentence of 30 days in jail. Really what we’re finding is an extraordinary bias against guns almost bordering on the mystical in the densely populated urban areas. It really breaks down more along the lines of gun culture versus the nanny state. I’m not seeing too much in the area of racial classification at this point.

David Theroux

Incidentally, to plug yet another book, this is a book that we published with the University Press of Kentucky last year. It’s called Race and Liberty in America. It’s a collection of about 100 documents over the history of the United States by many different figures, some widely known, some unknown about the history essentially of government and liberty and how that’s affected racial groups of most types, including the Chinese through the Chinese Exclusion Acts and many others.

Participant

How do you see the Second Amendment landscape changing in the next three to five years in California?

Donald Kilmer, Jr.

The Second Amendment because it’s a federal right is going to be basically imposed from the top down on state and local, or city and county governments and on certain state statutes. The Second Amendment is not going to change from its interpretation by the U.S. Supreme Court in Heller and McDonald in any decision that comes out. The primary issue left for litigation right now of a Constitutional nature is going to be standard of review, whether or not gun rights get strict scrutiny or some sort of watered down version of intermediate scrutiny. That’s going to be where the hot ticket is for the foreseeable future.

Stephen Halbrook

I’ll just add to that on a more practical basis the Assault Weapon Ban, the arbitrary denial of carry permits, those are two very primary areas. The requirement that you give fingerprints I think it is for pistol ammunition. You have a constitutional right and you’re having to give fingerprints for it? One thing I would say though is that we don’t want to encourage people who aren’t prepared to rush out to the courthouse door. Since this is being taped and so forth, we have a broader audience than in here, and I want to advise everyone: don’t represent yourself and bring a case because you’re going to create bad precedents. If a case is going to be done by an attorney, the attorney should be somebody qualified in this field. You wouldn’t go to an attorney who does auto accident cases to do a complex medical malpractice case. We’ve got bad precedents set because attorneys were good at heart, but they were only retained because they were a member of a local gun club but didn’t know anything about firearms law that did the lawsuit. There are going to be a lot of cases that are going to have to be carefully prepared and litigated to be successful.

Participant

Is there any compelling empirical evidence that draconian arms laws actually increase crime compared to those jurisdictions in which the arms laws are much more liberal in a classical sense?

Stephen Halbrook

Maybe we both have a comment. I guess there’s a lot of evidence that prohibition creates organized crime. There’s a big debate in the academic community. John Lott’s book, okay the most famous one, More Guns Less Crime. Justice Breyer, if you read his opinions in these two cases we’ve talked about, always takes the side of those who are adverse to that view. I think we all know that in the places where the guns are banned the most they have the most crime. The question is what is the causation. You know what I’ve always thought about that? I don’t care what your statistics are. It’s a Constitutional right so don’t come to me with a lot of statistics saying that justifies banning a Constitutional right. There would be a lot more crime solved if the police could use the third degree, if people didn’t have lawyers, if you didn’t have to get search warrants, and so on—the whole big brother society. I’m sure there’s not much crime other than by big brother, so it’s a debate that I choose not to be in by the way, crime data and all that, because it’s a Constitutional right. It doesn’t matter what the data shows. What do they say? Statistics don’t lie, but liars use statistics.

Donald Kilmer, Jr.

We made a conscious decision in the Nordyke case not to use statistics. I mean we had a wonderful laboratory of experience because gun shows have not taken place in Alameda since 1999 but we’ve had 11 years almost of crime statistics in Alameda County that do not purport to show any correlation at all between the lack of gun shows at the fairgrounds and both the rise and fall of murder rates in Oakland or actually in all of Alameda County. Stephen’s point is well taken. Once you start talking about a statistical foundation for a Constitutional right, you’re going to find public policy analysts who are going to able to shoehorn any gun regulation into a set of crime statistics. I think Justice Scalia said it best in Heller. It’s a Constitutional right. Certain policy considerations are off the table.

Participant

What about forcing someone to apply for the ability to carry across the country without having to go into an office? Parade permits can be done via fax and postal service, so why not carry licenses?

Stephen Halbrook

Residents of I think every state can apply for a carry license from the State of Florida, or Utah, or there are certain states where you don’t have to be a resident. Will there ever be a license where you can carry all over this wonderful land? I don’t anticipate there will be, but it was said best by the Court in the Dred Scott case that if African Americans were citizens they could keep and carry arms wherever they went. That should be the right of an American citizen. It’s not. The Supreme Court as Don mentioned did countenance laws on concealed carry. That’s a nineteenth-century concept. Today the concept by state legislatures by and large is to encourage a set of open carry, conceal carry with permits. I don’t think despite what the Second Amendment literally says, there’s the right to bear arms, I doubt you’re going to find courts saying that there’s a right to bear arms if the legislature so requires without a license or permit.

In some states you can get a concealed weapon permit by mail. You send in the information they want, a photograph and fingerprints if they’re required, but in some places like to register a gun in D.C. you’ve got to make at least two personal appearances. That’s something we’re objecting to in the litigation there. I think what is being asked are questions that come from an ideal world. We don’t live in an ideal world, and we have to start where things are worst and try to get rid of the worst things first and then move on.

Participant

I feel kind of funny arguing against somebody who has argued with the Supreme Court, but something that was said earlier about a Colt AR-15, if an individual in California owned that Colt AR-15 at the time Roberti-Roos was passed, it was grandfathered in. It had to be registered and has to be registered I believe on a yearly basis.

Donald J. Kilmer, Jr.

Part of what you said is a true statement. If you owned an AR-15 on the date that the legislature declared it contraband, it was declared contraband unless registered. The registration I believe is for the lifetime of the gun owner. What happens to the gun after you die, what your estate does with it, hasn’t been answered by the legislature. The Roberti-Roos was a registration scheme. Part of the problem is the implication of what you’re saying is there could be two guys standing next to each other at the range. One guy has an AR-15 that was grandfathered in. He can remove his detachable magazine. He can have a high-capacity magazine, folding stocks, and all the evil features. The guy next to him is stuck with a Reuger Mini 14 or something, and they’re shooting the same ammunition by the way.

Participant

How restrictive do you think cities like San Francisco will be able to be on conceal carry permits and still pass muster? Right now as I understand it, it’s pretty much judges are about the only people who get them.

Stephen Halbrook

In California you have very good state preemption law, and there have been two major decisions on San Francisco, one decided recently and one going back, I think, to the eighties. In any case, your state preemption law takes care of San Francisco in most cases. Now the fact that the Second Amendment applied in San Francisco, that buttresses that and makes it stronger. You’re always going to see them trying to do funny things like those kinds of cities do, but as far as bans go they’re off the table.

Participant

Even before Heller and before McDonald, the California Constitution, I believe it’s Article 1, Section 1, the first paragraph after the preamble says that all citizens are entitled to life, liberty and I think happiness, words to that effect. Now, I don’t expect common sense in Sacramento, but it seems to me that if you entitled to life and liberty you have the concurrent right to protect it. Now we add Heller and McDonald, and it seems to me that it becomes strengthened. Is that an avenue to accelerate a more liberal policy in the state? I don’t think we’re going to see shall issue in California. As a strategy would it make more sense for us individually in various counties and cities to approach our sheriffs and our police chiefs with a unified strategy if you will and get them to be more liberal in issuing CCW’s or does this have to be done at the legislative level?

Donald Kilmer, Jr.

There would be some argument if California had a right to keep and bear arms in the state Constitution for the state to make that would go something like this, well we have a right to keep and bear arms in our state and we interpret it this way. Therefore, the federal government has to somewhat respect that under a Tenth Amendment reservation of rights or something like that. But California has never had a right to keep and bear arms in its state Constitution, and in 2000 the California Supreme Court specifically said that there’s no right to keep and bear arms in the state, which means that in California it is a clear and open field. California is going to be stuck with whatever the federal right is. You commented on a movie earlier, Casa Blanca. I’ll do Sierra Madre. We don’t need no stinking right in the California Constitution any more. We have the Second Amendment, and it applies to state and local governments.

David Theroux

Well, thank you so much. I want to especially thank Steve Halbrook and Don Kilmer for their really unbelievable work, and Steve in particular for his scholarship, which has really made this legal movement possible, this legal movement and cultural change. I want to thank all of you for joining with us. Steve will be available to autograph copies of his books, and we hope that you can get copies. We hope to see you again next time. Thank you.



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