Diane talks with Mary McCord, Legal Director at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center.
The Second Amendment was added to the U.S. Constitution in 1781 as part of the Bill of Rights. Drafted by James Madison, the amendment went largely unnoticed for decades. Then in the 1970s and 80s, gun advocates began pointing to the Second Amendment as an absolute right, and justification for limiting firearms regulation. In 2008, the Supreme Court narrowly ruled that individuals have a right to gun ownership. Many gun control advocates argue that the high court’s decision keeps Congress from enacting meaningful gun control legislation. Diane and a panel of constitutional scholars discuss the origin and evolution of the Second Amendment and implications for U.S. gun policy.
- Jeffrey Rosen President and CEO, The National Constitution Center; author of the forthcoming book, "Louis D. Brandeis: American Prophet" (June 2016)
- Akhil Reed Amar Professor of law and political science, Yale University; author of four books, including "America’s Constitution"
- Bruce Fein Principal, Bruce Fein & Associates; author, "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy"
- David Kopel Associate policy analyst, CATO Institute; research director, Independence Institute in Golden, Colorado; and adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law. He is the author of "Firearms Law and the Second Amendment" (2012) and was a member of the Supreme Court oral argument team in District of Columbia v. Heller (2008).
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Second Amendment to the U.S. Constitution reads, quote, "a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," unquote. For decades, the amendment drew little attention, but now, both sides of the gun issue fiercely debate its meaning and intention.
MS. DIANE REHMJoining me to talk about the origins and evolution of the Second Amendment and what its interpretation means for the future of gun policy in the U.S., Jeffrey Rosen of the National Constitution Center and Bruce Fein of Bruce Fein and Associates. Joining us from New Haven, Connecticut, Akhil Reed Amar of Yale University and by phone from Denver, Colorado, David Kopel of the Cato Institute and the University of Denver Law School.
MS. DIANE REHMI know many of you will want to weigh in. Give us a call at 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. And thank you all for joining us.
MR. JEFFREY ROSENThank you, Diane.
MR. BRUCE FEINWonderful to be here.
MR. AKHIL REED AMARGood morning.
MR. DAVID KOPELIt's great to be with such a distinguished group.
REHMThank you. And you know, Jeffrey Rosen, a great many of our listeners have asked us to do this program wanting to better understand what's in the Second Amendment and how it has evolved in interpretation over the century. So give us a brief history of it, what you believe was in the mind of James Madison as he wrote it in the 18th century.
ROSENWell, channeling James Madison is a daunting task, but I'm emboldened to do this by this wonderful new platform that I want our listeners to check out. It's an interactive Constitution that the National Constitution Center has created and we summoned two of the leading liberal and conservative scholars on the Second Amendment to write a common statement about what both sides agree the Second Amendment means.
ROSENAnd you can find this at ConstitutionCenter.org/interactive-constitution and here is essentially what Nelson Lund and Adam Winkler said about the Second Amendment.
REHMI want to tell our listeners that that site is on our site, drshow.org.
ROSENWonderful. Thank you for linking. Well, here is what these two scholars say that James Madison was thinking about. There's a big concern from English history about standing armies oppressing the citizenry. And therefore, when it comes time to draft the Bill of Rights, you want to limit the federal government only to create standing or professional armies to fight foreign adversaries. When it comes to repelling sudden invasions, state militias are supposed to do the trick.
ROSENBut then, it turns out that after the Revolutionary War, the state militias are unable to repel really serious threats and they can't coordinate so the founding generation agrees about two things. The federal government has complete control over the militia, but it can't completely disarm the citizenry. They don't want to prevent state militias from protecting themselves against federal tyranny. Now the central question we're talking about today, is it an individual right of self defense or a collective right to serve in state militias wasn't centrally on the minds of the framers.
ROSENYou can, however, if you go to the interactive Constitution, look at the revolutionary era state constitutions that James Madison drew on when he drafted the words of the Second Amendment. Such an exciting tool. And you can see that many, if not most, of the state constitutions, like the Virginia Declaration of Rights, did talk about it as a collective right of state militias not to be disarmed, but a few states, like Pennsylvania, said the right of the individual to keep and bear arms for the defense of themselves or for purposes of killing game should be protected.
ROSENSo a minority of states are concerned about self defense. A majority about this well-regulated militia. There's no doubt that by the time of the Civil War when the Second Amendment was applied against the states, there's much more of a concern about individual African Americans being able to defend themselves against marauding mobs, against racist Ku Klux Klaners. So certainly, by the mid 19th century, it is an individual right. At the time of the framing, it's basically this idea that the right of the people to defend themselves against federal tyranny can't be disarmed.
ROSENThey're not centrally thinking about regulations. One final thing, and this is also on the interactive Constitution, there were lots of regulations of guns at the time of the framing. You had to register your muskets. There were limitations on who could own guns and therefore, blacks were prohibited from possessing firearms. There's some distasteful regulations. But essentially, for the framers, the individual right to bear arms was consistent with lots of regulation.
REHMJeffrey Rosen is president and CEO of the National Constitution Center. He's author of the forthcoming book, "Louis D. Brandeis: American Prophet." That's coming in June. Bruce Fein, your thoughts about the individual right to bear arms as Madison envisioned it.
FEINWell, just James Madison's intent isn't the sole one. We don't really know what happened to the Bill of Rights when it went to the Senate because it was secret at the time and obviously amendment only becomes valid if you have three-quarters of the state. So states' intent counts as well. But I think Jeffrey had it right. We have to look at the larger purposes that animated the American Revolution and it was fear of government tyranny. Indeed, it was John Adams who said the real spark of the American Revolution wasn't the right to bear arms.
FEINIt was the right to be free from unreasonable searches and seizures, the general writs of assistance. That was the spark of the revolution. But I think, to some degree, the initial major impetus for the Second Amendment, militias that would be able to prevent a military takeover from standing armies, has become anachronistic. The founders would've been shocked if they saw the military industrial complex today. The idea was we don't go abroad in search of monsters to destroy. Now, that's all we do.
FEINAnd so the idea that you could ever have a well-regulated militia that could defend against the Pentagon today is absurd. You know, they've got drones and they have rockets and everything else so that idea no longer obtains. We can't arm the citizenry, no matter how well, to defeat the Pentagon. I think also the issue of individual right is not as important as the idea of what other regulations that are permissible.
FEINThe Supreme Court in Heller and McDonald really has not created any of the obstacles to the gun controls that are brewed about today, proposed sometimes by members of Congress, state legislature or by executive order of the president that its own procedural issues. And that's where, I think, the NRA has political clout within the range of, regulation permitted, they've been able to defeat most of those. But that's not by (word?), the Second Amendment. It's because of their political authority.
REHMBruce Fein, principle at Bruce Fein and Associates, author of "Constitutional Peril: The Life and Death Struggle For Our Constitution and Democracy." Akhil Reed Amar, what about that permissible regulations that Bruce Fein mentioned?
AMARI agree with Bruce that the Supreme Court's two major decisions are basically about a right to have a handgun, an ordinary handgun, in the home of an ordinary citizen for self protection, all sorts of reasonable regulations might be completely consistent with those core protections. Confiscation of everyone's handgun would be a problem, but many sorts of reasonable regulation, loophole, free background checks, for example, I think are consistent with Heller and with another case called City of Chicago versus McDonald.
AMARI want to pick up on one thing that my friend, Jeff said, many things. He said many thoughtful things. He just reminded us that our Constitution really is a reflection of our history and our history has been defined most importantly by our wars and in particular our Constitutional wars, of the War of Independence and the Civil War. Now, in the War of Independence, we fight a revolution against an imperial center and it's local militias that really are the heroes of that fight, Lexington, Concord, Bunker Hill.
AMARAnd you see that states' rights, local militia sentiment very much in the Second Amendment. It's the residue of the American Revolution. But later in our history, states who were the heroes of the revolution, they misbehaved with slavery and racism. That lead -- they took up arms against a duly-elected government, very different than what happened in 1776, a duly-elected government and in the wake of that, we have a new set of amendments, most importantly the 14th amendment, this new birth of freedom, this second founding.
AMARAnd what Jeff said is now we need a set of rights against the states and in particular, we focus not just on states' rights, but individual rights, individual rights against the federal government, but also against the states. And one of these individual rights, even if it wasn't as strong in the revolution, it's clearly, by the time of the Civil War, this idea that people have a right, individuals, to have guns in their homes for self protection. That's actually a core right at the time of the Civil War, especially for blacks because you can't count on the local cops, the constabulary, to protect you when the Klan comes calling. So you can have a gun in your home for self protection.
REHMProfessor Akhil Amar, he is professor of law and political science at Yale University and author of four books, including "America's Constitution." You'll hear from David Kopel of the Cato Institute when we come back. Stay with us.
REHMAnd welcome back. If you've just joined us, we have several scholars with us looking at the Second Amendment. And I'm going to read it to you once again, for those of you who weren't with us at the top of the program. It reads, quote, "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." You've heard from Jeffrey Rosen of The National Constitution Center, Bruce Fein of Bruce Fein & Associates, and Professor Akhil Reed Amar of the Yale University. And now to you, David Kopel. How do you see it?
KOPELI would agree with what most of the distinguished panel have said so far. And I'd add that the right to arms has never been only about one thing, just as the First Amendment freedom of speech in the press was certainly, most importantly, about being able to criticize the government and talk about election issues. But that's hardly the only thing that's protected in there. The right is not just to keep a gun in the home but it's also to bear arms. So the court decisions, such as, for example, from the Seventh Circuit Court of Appeals in Illinois a few years ago, saying that when Illinois prohibited people from being able to carry arms for lawful protection, that that violated the Second Amendment. That was a correct interpretation.
KOPELAnd at the same time the right is not absolute in the sense that there can never be any regulations about it at all. Because nothing else in the Constitution is absolutely off limits to all regulations under all circumstances. So it's fair to -- it's legitimate, constitutionally, to have a fair licensing process like Illinois mostly does now and like almost other states do, so that a person goes through a background check, which might be fingerprint based and has to go -- perhaps a safety training class as well, in order to obtain a concealed-carry permit.
REHMSo you are fine with those kinds of regulations, David Kopel. But how do you feel about what the president said the other evening about doing further background checks for ownership?
KOPELOh, that was -- I'm fine with it because he actually, for all the sound and fury he created and attracted, it didn't change anything. That's -- all he did was restate what has been the law since the Gun Control Act of 1968, which is, if you are engaged in the business, as the statute enacted by Congress says, of selling firearms, you have to have a federal firearms license. And there's never been an Internet loophole or a gun show loophole or any of these other imaginary loopholes. So both sides put, I think, too much attention into what was only an accurate restatement of existing law.
ROSENWhat I think is so fascinating about this debate is that this is supposed to be the most polarized of all issues, but all of us are broadly agreed, both on the history -- we've agreed that there is an individual rights core of the Second Amendment -- and on the current applications that many reasonable regulations actually are permissible. And that's what the Supreme Court held in the Heller case, Justice Scalia said, presumptively lawful regulations include prohibitions on firearm possessions by felons and the mentally ill, possessions in sensitive places like schools and government buildings, restrictions on the commercial sale of guns.
ROSENIt turns out that since Heller and McDonald, lower courts have upheld a whole series of firearms regulations, including licenses to carry weapons outside the home, laws regulating firearm safety, laws restricting ownership to felons and so forth. So really all the disagreement is just on a couple of extreme things. If you go to the Interactive Constitution, there's a very interesting debate between Nelson Lund and Adam Winkler. Nelson Lund thinks that bans on assault rifles don't make sense because it leaves semi-automatic rifles to circulate freely and there's not a meaningful distinction between them. Adam Winkler says no, given the incredible regulations on gun restrictions at the time of the framing, assault weapons bans are fine.
ROSENBut I think that when you look at this issue in constitutional terms, it turns out, as Bruce said, if there's a problem with gun control today, it's not because the courts are striking down regulations, it's because Congress and the legislatures won't actually pass the...
FEINYeah, and if I could say this. There's been a lot of, you know, complaint against the National Rifle Association, but they're acting within their protected freedoms under the First Amendment. They have a right to petition Congress and legislatures, just like their opponents do, for, you know, remedies. And instead of deflecting the argument on the courts and the Second Amendment, it just if you indeed champion gun control, you need to organize better. And it's oftentimes said, well, how can the NRA be so influential because the majority of the polls suggest they run contrary.
FEINDiane, I've been here about 50 years. That happens so frequently. Right now, the majority of Americans would have all our troops out of Afghanistan and they stay there. I mean, Dick Cheney was asked, well how come 9 percent of the people are supporting your policy in Iraq? He said, well I don't care. So there's oftentimes a discrepancy between public opinion and what happens in politics because of the intensity factor.
REHMDavid Kopel, you argued the Heller case before the Supreme Court. How big a victory was that decision for gun advocates?
KOPELWell, and to be proper, I was one of the assistants to Alan Gura, who did the talking before the Supreme Court, and I was one of his three little elves joining him at the counsel table. It was very important because the Supreme Court for most decades of the latter 20th century had left a lot of ambiguity about what the Second Amendment meant. There was a lot of -- there was very little federal gun control for federal courts to even think about until the Gun Control Act of 1968. And then, after that, the -- you had cases where people were felons in possession of a firearm and they said, oh, I've got a Second Amendment right. You can't -- just because I have an armed-robbery conviction doesn't mean you can prohibit me from having a gun.
KOPELAnd starting in the 1970s, a lot of courts -- lower federal courts said, not only is that gun control okay, but they would sometimes say things that nobody has any Second Amendment rights at all. And the Supreme Court, for that period in the late 20th century, didn't intervene one way or the other, leaving the public confused. And so Heller was an authoritative clarification of what had been -- as the Heller citations show -- the predominant understanding from 1791 onwards for most of American history and certainly the 19th century.
KOPELAnd as the other guests have said, it doesn't mean that all gun controls are unconstitutional. But it does mean that, as with other constitutional rights, the burden of proof to justify a control is on the government. You have to pass various kinds of judicially created tests, which essentially are, show that this is really going to do some good and show that you are not -- and show that this law is really impacting the problem and is not impacting the innocent people who are trying to exercise their constitutional rights.
REHMAnd to you, Akhil Amar, some people believe that decisions like Heller and McDonald make it impossible to adequately address the violence that's going on in this country. Are the courts themselves the problem?
AMARI would argue not. Some of the politicians might want you to think so because they don't want you to blame them. I would go even further and say, Heller and McDonald actually make it easier to have reasonable gun regulation. Here's why. Because without those cases, every time that someone like me -- I believe that Heller and McDonald were rightly decided. I believe there is a right to have a gun in the home for self protection. I said so long before Heller and McDonald, relying on scholarship by people like David Kopel and others, who is a friend of the NRA. And so I'm not a Johnny-come-lately to this. They were right.
AMARBut they actually make gun control easier because, before those cases came along, whenever someone like me, who also believes in gun control, proposed any regulation, howsoever reasonable, someone on the other side said, this is the first step that will lead to a slippery slope that will -- it will result in the total confiscation of all guns everywhere. And now I can say back to them, no, it won't. That's not going to happen. Justice Scalia is not going to let that happen. Justice Alito is not going to let that happen. And Justices Kennedy and Chief Justice Roberts and Justice Thomas. You don't have to trust me. You can trust the Supreme Court.
AMARAnd because they've now decided, twice, that there is a right to have a gun in the home for self protection -- and by the way, as a practical matter, most places weren't going to be able to get rid of that anyway. There are almost as many guns as there are people in America. It would make Prohibition look like a walk in the park if you actually tried to take people's guns away from them. And even -- and most states also have all sorts of elaborate protections that go way beyond, actually, the Second Amendment. David Kopel and others have done lots of work on that. This makes it easier for us to have reasonable gun regulation, because now we can say, listen, your gun in your home is safe. Now let's talk about the margins.
AMARI want to say one other thing about what David Kopel said. Very thoughtful. He is a friend of the NRA's, and yet he said, unlike many other people, what Barack Obama said last week was perfectly reasonable. I want everyone to hear that. We actually -- there is more agreement among the experts than you might think. He said, what Obama did and said was completely reasonable within the law. That's really helpful. Here's another thing that he said. Even the NRA is comfortable with prohibiting, for example, ex-felons from having guns. Now this is interesting because you wouldn't prohibit ex-felons from opening a newspaper or publishing a book.
AMARSo it's not just that rights are subject to regulation, just like the First Amendment. It's that the Second Amendment, in certain respects, is actually subject to more regulation than the First Amendment. In certain respects, even the NRA acknowledges that. Just see their position, or David's position at least, that he just articulated on ex-felons.
REHMSo here's the question, David Kopel. You and I know that there are perhaps 300 million guns in this country. They cause more than 30,000 deaths every year. Could the founders of the Constitution have possibly conceived this level of violence and wouldn't they have wanted gun ownership more strictly regulated?
KOPELWell, I think they saw what some people today would call strict gun regulation as exactly what they were fighting against. The 10-year political dispute between the United States, the American Colonies and Great Britain turned into a shooting war because of gun control. In 1774, King George, III, embargoed the importation of arms and gun powder into the United States and, shortly thereafter, sent his governors out on missions to do raids to seize firearms.
KOPELAnd the first time one of these raids -- there was enough tip-off that armed Americans were there to resist it, was on the morning of April 19, 1775 at Lexington and Concord, when in violations of the future Second Amendment and the future Fourth Amendment, the British Army conducted house-to-house searches for guns. They -- the framers understood what has been shown by 200 and -- more than two centuries of subsequent political history, that when the government has a monopoly on arms, that is the most dangerous situation possible.
KOPELEvery genocide in the last hundred years has been perpetrated against a population that was systematically disarmed beforehand. Doesn't mean that disarmament always leads to genocide. But genocide is always preceded by disarmament.
KOPELAnd that's why Congress, when it acting on the Property Requisition Act in 1940 to prepare America for war and help the federal government procure military equipment, put in a specific prohibition on federal gun registration, what -- a point which has been re-enacted by three subsequent congresses. They knew that when the government has a list of who has guns, the government can confiscate guns. And when you have a disarmed population, that is the most dangerous situation possible...
KOPEL...in terms of mass homicides.
REHMAnd you're listening to "The Diane Rehm Show."
FEINDiane, let me respond to that.
FEINBecause we're trying to go back and think what would be most shocking to the founders. It would be -- it'd be the military industrial complex. Surely they didn't anticipate 300 million firearms. They couldn't have imagined a Pentagon $600, $700 billion, the ability to destroy the whole world, the ability to destroy the United States' population. We have an executive now that's acquiesced by Congress of authority to kill any American citizen wherever he says you're in imminent danger, he can kill you with a predator drone or another vehicle because he says we're at war forever.
FEINThat would just be beyond the comprehension of the founders. They thought, we don't go abroad in search of monsters to destroy, that we protect ourselves in self defense. And so, now, this idea that, you know, you're going to protect against tyranny by arming the population is ridiculous.
ROSENTo echo what Bruce has said, I'm looking at the exciting Interactive Constitution, and I'm looking at the Virginia Declaration of Rights, 1777, which was a model for Madison. It starts by saying a well regulated militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free state. But it goes on to say, supporting Bruce, that in all cases, military should be under strict subordination to and governed by the civil power. They really are concerned about the overweening danger of an overly powerful federal standing army and government.
ROSENAnd the question of constitutional translation, how to translate the Constitution in light of new technologies the framers couldn't have imagined, is central to our debates about NSA surveillance, about whether drones can track us in the sky. We have to be similarly bold in our imagination of wondering how the framers would have dealt, as Bruce said, with this centralized power that they feared but couldn't have anticipated and how they would restrict it. And it's arguable that they would have argued not for individual firearms, which are clearly not adequate to defend yourself against the federal military industrial complex, but restrictions on surveillance and other Fourth Amendment restrictions and so forth.
ROSENSo the bottom line is, the original understanding, James Madison cannot tell us what the framer -- what he would have thought about a centralized state that he couldn't have anticipated. We have to engage in constitutional translation as my hero, Louis Brandeis, would have insisted.
REHMJeffrey, does the Constitution, anywhere, at any point, say anything about the government's power to regulate gun ownership?
ROSENThe only references to guns, unless my friend and teacher Akhil corrects me, are in the Second Amendment, which says, as you've read several times, a well regulated militia being necessary to the security of a free state. So all we can do is extrapolate from the many regulations that were on the books, not only in 18th century as we've talked about, but also in the 19th century. And I want to recommend Adam Winkler's great book, "Gunfire." (sic) Adam Winkler wrote for the Interactive Constitution. He's a moderate liberal on these questions. He thinks it was an individual right. But he says, in the 19th century, all sorts of regulations were considered perfectly permissible.
REHMJeffrey Rosen, president and CEO of The National Constitution Center. Short break. When we come back, it's time for your calls, your email. Stay with us.
REHMAnd it's time to open the phones for our four scholars. Jeffrey Rosen, Bruce Fein, Professor Akhil Reed Amar and David Kopel. He is also professor of Constitutional Law at Denver University. He is at the CATO Institute. Let's go first to Homer in Durham, North Carolina. You're on the air.
HOMERThank you very much for taking my call.
HOMERI wanted to make a comment that I find it ironic that the Second Amendment is used to protect the rights of the individuals to bear arms. And that, in part, it morphed into that because it might protect African-Americans who would be subject to repression or aggression by government or agents who would want to harm African-Americans, such as the Ku Klux Klan. But in fact, what we have seen happen recently is that African-Americans, when they have been perceived as bearing arms or having guns, police and government agents have rolled up on them and shot them without question, without inquiry.
HOMERAnd it has made African-Americans more likely to be in danger. And I'd like to get your guests' comments about that.
AMARIt's a profound point. Thank you for that, Homer. I want to pick up on my friend, Jeff Rosen's invitation to translate the Second Amendment into modern circumstances and a thing that both David and Bruce said, which is there are different components of the Second Amendment. Just as the First Amendment is about individual expression, artistic expression. And how we govern ourselves politically. So the Second Amendment has an individual rights component, which you've been talking about.
AMARBut it's also about our military structure. Our force structure. And the basic idea is a deep Democratic idea, that people should look like the militia, just like the representatives should look like the people, juries should look like the people, so should our militia. So should our militia, our force structure, look like the people. Now what does that mean? Here are two things it means. One, our local militias, which today we call the police departments, should look like the community. That would be community based policing. And they might be less likely to gun folks down if they looked like the community that they're supposed to serve and protect.
AMARSo, one aspect of the Second Amendment might be about making sure that our police forces actually really look like the communities they serve. And a second, because we now have a big standing army, as Bruce said, that the founders would have been nervous about. Our, we have a military industrial complex, our army, our national force structure, should look like America. That means, in my mind, there should be women as well as men. Blacks as well as whites. Gays alongside straights. It should be sort of more like "Saving Private Ryan" with this schoolteacher from Pennsylvania.
AMARAnd, you know, folks from New York City and a sharp shooter from Mississippi. So, our force structures, both national and local, should look like the community rather than being a culture within a culture that's unrepresentative. That's also a deep Second Amendment idea, Second Amendment translation above and beyond guns in homes for self-protection.
FEINYeah, if you want to get there Diane, I think you need to go to conscription. You're not going to have that with an all-volunteer army, given various incentives. I'm in favor of conscription, if it's only in self-defense. Rather than traipsing around the world, bombing anybody cause we want to make them a carbon copy of the United States. And that would make it a more citizens army than what we have today. Which has them quite removed, as Akhil said, from our culture.
REHMAll right. To Jay in J-Town, Kentucky. You're on the air.
JAYThank you, Diane. A wonderful topic. I wanted to find out from your panel, James Madison was one of the founding fathers, obviously, when he -- when they did the Second Amendment, they thought about a single shot musket. That was it. And those muskets were used for hunting and protecting the homestead from marauding Indians and whomever. But it was a single shot musket. Now, what they want to have, NRA, want to have cop killer bullets, automatic rifles and everything for sale to just about anybody.
JAYBut the thing that got me the most, a couple of years ago, was when some of the preachers, some of the Christian preachers, asked their parishioners to come to church armed. I mean, it was almost like blessing the weapons that kill people. And I don't remember any of the parables talking about -- Jesus talking about that happening. You know, bring your weapons and slings and arrows and we'll kill some of our enemies.
REHMAll right. David Kopel.
KOPELLuke, Chapter 22, verse 2, let he who does not have a sword were at the last supper, Jesus orders his disciples to carry swords and they pull out two swords. And he says, that's enough, and by the way, they were carrying swords illegally apparently. Because that was Roman law didn't allow Jews to carry arms.
REHMBut what about his point that at the time, you had single shot muskets?
KOPELWell, they were the predominant arm. They certainly weren't the exclusive arm. Multi-shot weapons go back hundreds of years before the Second Amendment. In fact, before the settlement of the American colonies. They were around, they were being improved technologically. So, the fact that multi-shot arms continued to develop after the Second Amendment was no surprise at all to the founders. That was well within their contemplation. And the improvements we've seen in arms technology from 1791 to the present are minor compared to the improvements we've seen in First Amendment technology.
KOPELWith going from the Franklin Press to things like the internet and even television. As the Supreme Court said in Heller, the notion that the Second Amendment or the First Amendment protects only the technologies that were in existence in 1791 is just frivolous.
REHMAll right, here's a tweet from Richard, who says, in rural America, we get a BB gun at eight and our first shotgun at 12. Yet, urban America wants to dictate my rights to fire arms. Jeffrey Rosen, do you believe that there should be some limits on firearms?
ROSENMy personal views are that the Second, I think all of my colleagues have said, the Second Amendment is an individual right. It's like the First Amendment. We should not read it out of the Constitution. There's no doubt that people across the country, I think the tweeter is correct. Feel very -- just as passionately about their Second Amendment rights as many people on the coast do about their First Amendment rights. So, I'm not at all dismissing that. But the question of what kind of regulations are reasonable is central.
ROSENAnd the last observation that, at the time of the framing, you could use single shot for militias, was taken up by Justice Stevens in his dissent in the Heller Case, he said that the framers single minded focus in crafting the Constitutional guarantee to keep and bear arms was on military uses of firearms, which they viewed in the context of service in state militias. That encourages us to think of what kind of regulations and guns today could plausibly be used in the militia and those can be reasonably regulated. It's arguable that semi-automatics and things like that are not in militia service are perfectly plausible.
FEINDiane, could I make this observation? I think the caller suggests that it may make sense to try to have the regulation of guns a local or state matter as the matter of policy because the circumstances vary so enormously from rural areas to urban areas. From Alaska to New York City. There's nothing that requires a national rule. And it makes sense to tailor the gun restrictions to the local circumstances.
REHMAkhil Amar, do you think there should be limits on how many guns, how much ammunition an individual can buy? What would pass Constitutional muster in your eyes?
AMARThanks. The Supreme Court only has these two cases and my personal view, limits on the size of the gun clip and the kinds of ammo and maybe even the amount of ammo and the number of guns might well pass muster because one core idea is what you need for defense of the home and you may not need a clip of 20 bullets for that. And that can threaten others if you took it abroad. But I did want to pick up on one thing that David said and connect our conversation, that there are many different aspects of the Second Amendment.
AMARWe've talked about two already. Protecting, an individual right, at the core, in the home for self-protection. David would want you to be able to bear, to carry, outside the home. And then, our military force structure, both locally, we call them the cops, they're quasi-military, they've got uniforms and ranks. And at the federal level, the army. Here are two other elements, beyond those two individual rights. And our sort of military structure. The caller was talking about hunting and recreation. Jeff, at the very beginning, said when you look at the Pennsylvania Constitution, actually, and some others.
AMARThere's that recreational right, and you see that in many state Constitutions. David has written about that. That's a third element that's beyond self-protection, it's not military. It's recreational hunting. Here's a fourth that I would add and it builds on what David said. Let's think about how we think broadly about the First Amendment. What is necessary for the security of a free state? Of a free society? What are the fundamental pre-conditions of that? I once wrote that I thought that modems and fax machines were the most powerful weapons of all when you look at what was happening in Eastern Europe.
AMARAnd Russia. So, what is it? Maybe a public education is what we need, actually, to secure. That's a weapon. Knowledge is a weapon. So, so this is Jeff Rosen's point about translation. The Second Amendment is a very great Amendment. It's a very profound one. It has many different aspects, as David said, and we've only begun to think about it. Individual self-defense, collective self-defense, what's necessary for the security of a free state and maybe even recreation and hunting.
KOPELI'd agree with Professor Amar that one of the ways that we can use the Constitution in the 21st century is not just to think about what will a court do about the amendment? That's an important thing, and as lawyers, we spend a lot of time working on those issues, but there's also more aspirational constitutionalism. So likewise, when the 14th Amendment guaranteed the equal protection of the laws, and if we'd been doing this show in 1921, with early radio, we would have said, well, courts really don't do too much on that in terms of protecting the rights of black people from being discriminated against by Jim Crow laws.
KOPELBut the fact that the amendment was there gave people in the political process and the civic process educationally something to talk about and to look forward to. And to remind America of its own best standards. And eventually, the courts caught up with that public educational process. And so, as Akhil said, the Second Amendment, like the whole Constitution in a way, its profound purpose is the prevention of tyranny and the protection of a free state. So we ought to think not only about the rights to own and carry arms, which of course is the core of the Second Amendment. But broadly about what helps us protect our free state and prevent the imposition of tyranny.
REHMAnd you're listening to "The Diane Rehm Show." And of course, that brings up the question as to whether greater access to guns makes us safer or less safe, Bruce Fein.
FEINWell, Diane, I think the question can be answered differently, depending upon where you live. Like, when you ask Professor Akhil, you know, will you support this kind of regulation? Maybe yes in some places and not in others. Because the circumstances of the use and availability and danger created by guns is wildly different, depending whether you're in a rural area or not.
REHMAnd Texas has already moved to an open carry situation.
FEINBut that doesn't mean it's there in perpetuity. That's what we have the legislative decisions and policies can change. That's what politics is all about. I'm inclined to make an observation, I think that Pogo said about, you know, the Vietnam War, we've met the enemy and they are us. That is, in so far as we disagree with the policies, it's not the courts or the Second Amendment that we should be voicing disagreement with. If we think that our political views aren't being heard, we need to organize and suggest something different.
ROSENListeners who want a very comprehensive account of the empirical debate about whether or not guns make us safer or not can start with Heller and compare Justice Scalia's majority opinion with Justice Breyer's very extensive dissent, where he has many, many citations and web links to all the empirical evidence. I'm not going to presume to engage that now, but we do have a modern example of citizens who are taking up arms in defense of what they perceive to be federal tyranny and that's the standoff in Oregon at the National Wildlife Refuge.
ROSENAnd I guess there's a serious question about whether or not we the people of the United States today believe that it's appropriate for citizens to be able to try to resist federal laws in the name of liberty. And as an original matter, you could say yes, but maybe if we try to translate the amendment, there's no longer a constituency of, by a majority of the people of the United States to interpret the Second Amendment that way.
REHMDavid Kopel, briefly, how do you feel about the standoff in Oregon?
KOPELI think they're wrong. There are problems in the West and the abuse of federal prosecutors and misuse of federal lands, but this is not an appropriate response to it.
AMARWe had President Washington lead the charges against the Whiskey Rebellion when persons in Pennsylvania didn't want to pay a whiskey tax and we had the Shays' Rebellion, which was a prominent instigator of the Constitutional Convention itself where arms were taken up against foreclosing on farmland. So, I don't think that there's any in the heritage of our Constitution that suggests you have a right to violate the law and create your own autonomy.
REHMJeffrey Rosen, will the debate on guns continue, and where is it going?
ROSENWell, it will certainly continue. It's one of the most hotly contested in American politics. There's a very dramatic difference between the Republican and Democratic candidates on this question, despite the wonderful consensus on this show where constitutional people of different perspectives agree on the core meaning. The Republican candidates have been quite firm in resisting almost all gun regulations. And the Democratic candidates, led by Hillary Clinton, have promised to make this a crusade.
ROSENBut as I think several of us have said, the future of the gun debate is not going to be resolved in the courts. It's a question of who wins the presidency, what Congress is willing to do, what the state legislature is willing to do. If politicians pass the reasonable regulations that many Americans support, the courts are likely to uphold them.
REHMDo you believe that the President has the right to take further executive action to constrain gun ownership?
ROSENAll of us agree that the President's actions were mild. I think David put it very well. I think the consensus is there's no constitutional problem with what he's done. If it's to be challenged at all, it would be challenged under the Administrative Procedure Act, in the same way that his executive order about immigration was challenged. So yes, he has the ability to go a little bit further.
REHMJeffrey Rosen, Bruce Fein, Professor Akhil Reed Amar, David Kopel, thank you all so very much.
REHMAnd thanks all for listening. I'm Diane Rehm.
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