CLICK HERE TO LISTEN TO AND FOLLOW CIVICS 101 ON YOUR FAVORITE PODCAST APP.
Today we learn about the 27 words that have been interpreted and reinterpreted by historians, activists, judges, and philosophers. What did the 2nd Amendment mean when it was written? What does it mean right now? And what happened in between?
Today's episode features Saul Cornell, professor of history at Fordham University and author of A Well Regulated Militia, Alexandra Filindra, professor of political science at University of Illinois Chicago and author of the upcoming Race, Rights, and Rifles, and Jake Charles, lecturing fellow and executive director of the Center for Firearms Law at Duke Law.
Listen here:
Transcript
Archival: The right to keep and bear arms is the one right that allows rights to exist at all. Now, either you believe that or you don't, and you must decide because there's no such thing as a free nation where police and military are allowed the force of arms, but individual citizens are not.
Saul Cornell: I often say if we go back to what the founders thought about guns, it would be the worst nightmare for gun rights people and gun control people. Because [00:00:30] you get rid of stand your ground, your duty would be to retreat. The government would inspect your firearm in your home. It would penalize you if you pick the gun you want instead of the gun the government wanted for you. On the other hand, be more like living in Switzerland or Tel Aviv because we would all be part of a well-regulated militia and we would have to drop everything at a minute's notice and report to muster.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And at the top, you heard actor and former president [00:01:00] of the NRA, Charlton Heston. There's going to be more of him later. And right after that, you heard Saul Cornell. He's a professor of history at Fordham University, and he wrote the book A well-regulated Militia. Saul teaches popular constitutionalism in the Early Republic. And we talked to Saul because today we're talking about the Second Amendment, what it meant when it was ratified, what it means as of this moment and what happened in between. We're also going to talk about the amendment in the Supreme Court, the [00:01:30] NRA and the truly unique relationship between our country and gun ownership.
Hannah McCarthy: All right. That's a lot. Yeah, that's a bit of a labyrinth. So can we just start with the words? What does the Second Amendment say?
Saul Cornell: So the Second Amendment, which is probably the most frequently invoked and poorly understood part of the first ten amendments, reads A well-regulated militia being necessary to the security of a free state, [00:02:00] the right of the people to keep and bear arms shall not be infringed.
Hannah McCarthy: So all said, frequently invoked and poorly understood. I mean, we have trouble whenever we try to understand the intent of the framers in their historical context. And regardless of their intent, that kind of doesn't matter. Because what matters is the people who interpret the Constitution whose job it is to do so. The Supreme Court.
Nick Capodice: Yes, absolutely. When the Supreme Court says what something means, it means [00:02:30] that as far as the law is concerned. But back to the intent, the NRA website says, quote, The founding fathers felt that citizens should be able to protect themselves against the government and any other threat to their well-being or personal freedom. But, you know, you don't hear a lot of discourse about what the framers meant when they wrote the Seventh Amendment.
Hannah McCarthy: Yeah. I mean, you don't see like ranting YouTube videos about people talking about why a civil case involving $20 or more should be heard in front of a jury. But back to the Second [00:03:00] Amendment. Why is it so tough to interpret?
Saul Cornell: Modern Americans are quick to say, oh, how did they write such a bad amendment? I mean, how did they manage to screw it up so horribly? But in fact, if you're conversant with the way people talked and wrote about the law in the 18th century, it makes a lot of sense. It uses a very common Latinate construction called the Ablative absolute, and the best way to render it in modern English would be to say because a well-regulated militia is necessary [00:03:30] to security of a free state, the right of the people to keep and bear arms shall not be infringed.
Hannah McCarthy: An ablative absolute.
Nick Capodice: Yeah. I don't want to go too deep into this, but I encourage everyone to look up an article called, "our Latinate Constitution." It's all about how the framers emulated the style of Greek and Latin authors and philosophers. An ablative absolute is an adverbial modifier of the predicate that's not grammatically dependent on any word in the sentence, which I cannot wrap my head around. [00:04:00] Hannah But an example from a Latin textbook is having received the letter, Caesar sends a messenger. Since a well-regulated militia is necessary, the right shall not be infringed.
Hannah McCarthy: Okay, so while we're doing historical context to terms, I want to understand are militia and bear arms?
Nick Capodice: Absolutely. And I'd like to start with what a right to bear arms meant back then.
Saul Cornell: Most of the first state constitutions did not have [00:04:30] a provision on the right to bear arms, which is shocking given our obsession about it today. And perhaps most interesting of all, when they did include such provision, they often included a balancing provision which protected the right not to bear arms.
Hannah McCarthy: Why would you need that right not to bear arms? What does that mean?
Saul Cornell: Bearing arms in the 18th century was an obligation, and we're not used to thinking of rights as carrying obligations in modern American law. We generally think that if [00:05:00] you have a right, it imposes an obligation on either the government or other people to respect that right.
Nick Capodice: In 1792, you were obliged as a white male between the ages of 18 and 45 to buy, keep and maintain your own military weapon, ammunition, backpack, all that stuff. You had to submit it for inspection, and you had to always be ready to report to serve your country if needed.
Hannah McCarthy: Okay, but why would someone need to have a right to [00:05:30] not bear arms.
Nick Capodice: Because of their religion. These were religious pacifists and we're sort of touching on First Amendment territory here. But Saul gave me the example of the Quakers.
Saul Cornell: Quakers by the time that the Second Amendment was adopted, had won the ability in Pennsylvania not to bear arms, because the Pennsylvania Constitution is one of those states with a provision that says you cannot be forced to bear arms. But that wasn't good enough for them. They [00:06:00] felt that any support for militia activity or warlike behavior violated their peace testimony. I mean, they literally took the idea of turning the other cheek as you just turn the other cheek, you do not you don't engage in war like activity. You don't engage in any kind of violence, verbal or physical. And these Quakers refused to even pay taxes to support the militia.
Nick Capodice: And if we're looking at it through the modern day [00:06:30] lens of bearing arms as just having a weapon, the Quakers certainly did that. They were hunting with guns. They even manufactured guns. But at that time that wasn't bearing arms. If you were playing a drum in an army, if you were carrying a stretcher that is bearing arms, it's supporting war.
Saul Cornell: It just shows you how different their world is and how most of the people talk about the Second Amendment today are just essentially functionally illiterate in 18th century constitutional [00:07:00] English. And what they do is they project backwards our obsessions and our understanding. And of course, in modern America, having a Glock in your bedside table so you can kill people is how most people think of what it means to bear arms.
Hannah McCarthy: All right. Let's move on to a well-regulated militia. How does a militia differ from the US army?
Nick Capodice: Okay. First, a quick clarifier. When we're talking about militia in this episode, we [00:07:30] are not talking about what law enforcement today called the American militia movement. That's modern day paramilitary organizations. We're not talking about those. But this is interesting. The Continental Army, which fought the American Revolution, was disbanded almost immediately after the war, and then state militias took their place and became our only ground army.
Hannah McCarthy: Okay. You said white males from 18-45 would be required to enlist; can we get into the white male part of that, please?
Alexandra Filindra: So basically, this is the definition of who is a [00:08:00] citizen in Republican terms, who gets to be a citizen in these two dimensions of citizenship.
Nick Capodice: This is Alexandra Filindra. She's a professor of political science at the University of Illinois at Chicago. She's also the author of the upcoming book Race Rights and Rifles. And Alexandra talked to me about Republicanism. This is not related to the modern day Republican Party. Republicanism is the political ideology. In early America. That was the basis for our revolution [00:08:30] and our foundational documents. And that ideology continues in the history that America is writing for itself today.
Alexandra Filindra: Americans had to explain to themselves and to the world why it was that there were this race and gender based restrictions, right, to who gets to be a citizen. So you need a theory because Republicanism basically says that in order to be a good citizen, [00:09:00] you have to be willing to die for the country. You have to be willing to use violence and bear arms for the purpose of the Republic. So in the American context, the myth that was created was that white colonists proved themselves to be virtuous and therefore deserving of Republican citizenship because they fought to death at the revolution.
Nick Capodice: The Boston Tea Party. Shay's Rebellion. [00:09:30] The Revolution itself. The Confederacy in the U.S. Civil War. These are violent anti-government uprisings, and they have been spoken of with words like patriot freedom fighters. One book was written that said the South had a, quote, honorable defeat.
Alexandra Filindra: And we see that over and over in American history when African Americans use violence and armed violence. It is described [00:10:00] in the language of criminality. Whereas the guys who went to the insurrection on January 6th, it was described in the language of liberty, freedom, don't tread on me. These high moral and political principles and these don't apply to African Americans in in this white male supremacist world. And this is how [00:10:30] guns became symbolic and very positively symbolic of white good citizenship.
Hannah McCarthy: Okay. So Alexandra is saying that it is uncommon to see instances of black Americans displaying arms. I'm thinking of the Black Panthers, for example. Or using violence and then hear it described as an act of patriotism.
Nick Capodice: Right. And to support her point, you can just read modern day responses [00:11:00] or the lack thereof from the NRA. And NRA supported politicians regarding instances where police have killed legally armed Black Americans.
Hannah McCarthy: Okay. So getting back to the militia, that's not how we do things anymore, Nick. So what changed the system?
Nick Capodice: Well, frankly, the system changed due to its effectiveness or should I say ineffectiveness.
Alexandra Filindra: In reality, the militia was useless as a military organization. [00:11:30] They were horrible because the states didn't have the money or the interest to train them and because they were citizen soldiers, they could vote out any politician who insisted on rigorous training. They like the trappings of military service because this is service in quotes. They like the uniforms and they like the weapons, and they run around doing drills with fancy weapons of the time and fancy uniforms. [00:12:00] But when it came to real training, they didn't want to do it.
Nick Capodice: There were enormous problems with militia members deserting in the war of 1812, but the biggest demonstration of the failings in the system was the Civil War
Alexandra Filindra: In the Civil War, the militia showed how badly trained there were. There were constantly brawling, and they weren't working with each other from different states because they didn't have any contact. They had no organizational training, [00:12:30] and they were drunk.
Nick Capodice: And a group of officers from the New York State militia who saw how terribly the militia had performed in the Civil War, devoted themselves to the task of training them, specifically training them how to shoot better records from the union estimated that its troops fired about 1000 rifle shots for each Confederate soldier hit.
Hannah McCarthy: So they weren't just ineffective. They were also, I would assume, costing a lot of money.
Nick Capodice: Yeah. So this new group of officers sent emissaries to other [00:13:00] countries that had militias Germany, the U.K, Canada to see how they train their soldiers to shoot better. And in 1871, this group was chartered in New York State as an association for the purpose of teaching marksmanship.
Hannah McCarthy: Is this going where I think it's going, yeah. An association that would teach people nationally how to properly use their rifles.
Nick Capodice: You got it. This is the birth of [00:13:30] the NRA.
Alexandra Filindra: In the early 1900s when a very, very famous National Guardsman was President Teddy Roosevelt. They were able to get out of Teddy Roosevelt, a new law which provided a subsidy and a monopoly to the NRA for the purpose of training civilians in marksmanship. The federal government committed the provision of surplus weapons [00:14:00] and ammunition for free or at a cost exclusively to NRA and its members for the purpose of military preparedness to morally and in terms of technical skills, create soldiers out of civilians for the purposes of the draft. The NRA didn't become powerful. It was powerful because the NRA was basically the same thing as the National Guards.
Hannah McCarthy: What [00:14:30] does she mean that the NRA was the same thing as the National Guard?
Nick Capodice: Well, in 1903, the state militias were all renamed the National Guard, and they were exclusively trained by the NRA. The heads of the National Guard were the heads of the NRA. Alexander told me a story about a congressional hearings in the 1930s where a guy testified in front of the House as the president of the NRA, and then two days later, the same guy testified in the Senate as the adjutant general of the National [00:15:00] Guard.
Hannah McCarthy: Is that not kind of a conflict of interest?
Nick Capodice: I mean, it is. But honestly, nobody really cared much at the time because everyone was all in on this program of training civilians to protect the government.
Hannah McCarthy: Did the program work?
Nick Capodice: No.
Alexandra Filindra: Because the idea was, okay, we will get them young. We will teach them how to use a gun. And then they will be so excited and morally uplifted by this that they'll want to be in the army. This didn't happen. This was hugely wasted money. [00:15:30] And even though report after report showed that this was wasted money, the program exists today. It stopped being a monopoly of the NRA in 1968. But for an entire century, basically, the NRA had a monopoly over this program that basically gave free guns and ammunition to citizens just for being members of the NRA and members of gun clubs.
Hannah McCarthy: What happened [00:16:00] in 1968 that ended the NRA's monopoly?
Nick Capodice: A lot. A lot happened in the 1960s. And here's where we start to talk about how the Second Amendment legally affects us. And that's coming up right after the break here on Civics 101.
Hannah McCarthy: But first, a reminder that our show is public media and you are the public. Support it with a donation in any amount at our website civics101podcast.org or click the link in the show notes to make a donation [00:16:30] right now.
Nick Capodice: All right, we're back. We're talking about the Second Amendment.
Hannah McCarthy: Now, Nick, we've gotten into the history of the amendment, but now I'd really like to hear about the laws. You mentioned 1968. Is that the year of the first federal gun legislation?
Nick Capodice: Well, I'd love to go a little bit earlier than that. Here is Saul Cornell, professor of history at Fordham University and former director of the Second Amendment Research Center.
Saul Cornell: You can go back to the 14th [00:17:00] century and the statue of Northampton. Hundreds of years before guns even exist. And you have a law in Britain saying you cannot go armed. In this case, it wouldn't be firearms before the king's ministers or in fairs or markets, because there is this notion that carrying arms in heavily populous areas is just not a good idea. Although in most parts of the world, the idea that modern American gun [00:17:30] regulation would depend on a statute passed in the 14th century where there were no guns makes most people in the rest of the English speaking world both laugh and kind of shake their head like, what is going on with you people? And what is this theory of originalism where you actually care more about what was going on in 1328 than the massacres you see now with almost appalling frequency?
Hannah McCarthy: Is Saul implying that much of the world would be baffled by our devotion to adhering to these laws [00:18:00] written so long ago?
Nick Capodice: I think he is. But we do focus on the intent of our framers, specifically when it comes to the Second Amendment. So I'm going to get into it. During the American Revolution, authorities would forcibly disarm you if you didn't swear a loyalty oath to protect your government. You could hunt. You could keep a gun in your house, though, in Boston in 1786, you couldn't keep a loaded one there. And if it was a military issued gun, it had to be registered and regularly checked by your militia. But you were forbidden from having what we now call open carry [00:18:30] guns just out and about when traveling or being in public places. And later on, these rules also extended to places where due to Hollywood, we tend not to think of as heavily restricted gun wise. Here's Alexandra Filindra again.
Alexandra Filindra: Even then, you know, you carrying your arms. But if you went to the okay Corral, the town required you in Arizona and Tombstone. [00:19:00] Arizona required you to leave your guns at the entry of the town before entering it. So, no, no guns were allowed into the town. Very, very regulated, guns wise west.
Saul Cornell: The idea we have always carried guns everywhere all the time is just another gun rights fantasy masquerading as history.
Hannah McCarthy: That's carrying guns in public, though. What about carrying a gun in secret?
Nick Capodice: Oh, legislators passed way more laws preventing that more than open carry.
Alexandra Filindra: Traditionally, in the 19th [00:19:30] century, people were far more concerned about concealed carry than public carry. It's only the criminals who have guns that can be hidden because they're going to attack you when you don't expect it.
Nick Capodice: All of this legislation being it permitting open carry in certain circumstances or banning it in others never comes to the federal level as far as the Supreme Court is involved. Until the 1930s U.S. [00:20:00] v miller, 1939, Jack Miller violated the National Firearms Act of 1934 and carried a sawed off shotgun across state lines.
Hannah McCarthy: And that was illegal at the time.
Nick Capodice: It was. In 1934. We were just coming off an enormous amount of armed violence in the era of prohibition and gang activity, the St Valentine's Day massacre, the National Firearms Act, the NFA put an exorbitant tax on weapons used during that era. So I'm talking [00:20:30] about the Thompson or the Tommy gun. Sawed off shotguns. Silencers on pistols. Explosives like grenades and bombs. Now, the act initially included handguns as well. And interestingly, the NRA supported the National Firearms Act. They helped shape its wording. They agreed there's no place for Tommy guns and grenades in America, but they disagreed with the handgun restriction. So that was stripped out. But back to Jack Miller. Miller was caught with a sawed [00:21:00] off shotgun and he argued the NFA violated his Second Amendment rights.
Hannah McCarthy: So the Second Amendment finally got its day in court.
Nick Capodice: Yeah, kinda. And it comes and goes pretty fast.
Hannah McCarthy: What was the decision?
Nick Capodice: It was unanimous. Miller lost. All of the Supreme Court justices agreed the NFA is not unconstitutional because the Second Amendment has nothing to do with gun ownership [00:21:30] outside the context of a well-regulated militia. Justice McReynolds wrote the opinion where he said, unless having a sawed off shotgun, quote, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
Hannah McCarthy: Okay. See, that opinion seems to have very little to do with what I consider sort of prevailing interpretations of the Second Amendment. How long until we see a case where it's [00:22:00] discussed with more detail and debate?
Nick Capodice: About seven years. And before we talk about the more recent Supreme Court interpretation of the Second Amendment. A lot of stuff happens in the US.
Alexandra Filindra: After several attempted assassinations against presidents and after the successful assassination of Kennedy and after the successful assassination of Bobby Kennedy and the successful assassination of Martin Luther King, Malcolm X, you name it. But another problem was [00:22:30] that Klan members and the Minutemen and other extremist organizations in the sixties became members of the NRA and and got access to federal guns and ammunition to fight against the civil rights movement and also against the federal government. And that kind of became a problem and the NRA was investigated.
Hannah McCarthy: What was the result of the investigation?
Nick Capodice: I don't know because it's not public. Alexandra only had a summary of the investigation and she's been trying to get her hands on the full report [00:23:00] for a long time. She hasn't been able to. But shortly thereafter, Lyndon Johnson ended the NRA's monopoly on training the National Guard, and he signed the 1968 Gun Control Act.
Archival: Today, we began to disarm the criminal and the careless and the insane. And all of our people who are deeply concerned in this country about law and order should hale this day.
Nick Capodice: Now that act [00:23:30] banned mail order sales of shotguns and rifles and it prohibited felons and drug users and people found mentally incompetent from purchasing any guns. And this is where the NRA made a big pivot.
Jake Charles: So in the mid 1970s, there was what's called the revolt at Cincinnati with the National Rifle Association.
Nick Capodice: This is Jake Charles. He's the executive director at the Center for Firearms Law at Duke University School of Law.
Jake Charles: And [00:24:00] what that refers to is a moment in time where hardliners in the NRA who thought the NRA was being kind of too cozy with those who were in favor of regulations, what at the time were kind of some fairly mild regulations. The hardliners thought the NRA was not taking enough of a stance for the Second Amendment. And so they took over the organization. And the organization after that point became the organization that we know it today, which is an organization [00:24:30] that is opposed to most forms of gun regulation.
Nick Capodice: The revolt of Cincinnati was in 1977, and I don't think I can overstate its importance. So again, in the late 1960s, the NRA was not politically powerful. It was fairly flexible about gun regulation. But at their convention in 1977, the hard liners who opposed any gun legislation whatsoever outnumbered those who were open to regulation. [00:25:00] New leaders indeed took over, and there was an adoption of a do not give one inch mentality towards firearm legislation. And very quickly, the NRA's focus shifted. It was no longer just about hunting or marksmanship, but something else entirely. It was about opposition to gun legislation, and it was about mobilizing voters.
Archival: And this is where the NRA organizes its million plus members. This [00:25:30] is headquarters in Washington. Buzz computerized, heavily staffed, well-funded and geared for action. Friend and foe agree. The NRA's power to scare congressmen lies in its ability to mobilize its members in any congressional district at the touch of a computer button.
Jake Charles: What we see then is the NRA in 1980 is endorsing Ronald Reagan. It's the first time the NRA endorsed a presidential candidate. Ronald Reagan returned the favor once [00:26:00] he was in office and he would became a very pro gun president. And so the eighties, we see the Congress enacts the Firearm Owners Protection Act, which provides a lot of rolls back some of the federal regulations there have been on guns and protects gun rights a lot. Keep fast forwarding the gun rights movement becomes kind of more powerful. The NRA becomes more powerful. We start to see these challenges to what had been the prevailing interpretation of the Second Amendment for [00:26:30] at least 100 years, which was that it was tied to the militia.
Nick Capodice: And this is when we started to hear things like this.
Archival: So it's not unreasonable that with one lost generation we could lose the Second Amendment forever because we didn't teach them what the battle is all about. We didn't strike that spark in their hearts that lights the fire for freedom.
Nick Capodice: That, again, was Charlton Heston, five turned president of the NRA in an NRA produced short film called A Torch [00:27:00] with No Flame.
Hannah McCarthy: Are you saying that until the 1980s, the Second Amendment was not really talked about as pertaining to an individual's right to own a gun?
Nick Capodice: That is what I'm saying. It was not. I watched an episode of 60 Minutes from 1977 on the inner workings and beliefs of the NRA. And the Second Amendment wasn't mentioned even once, and I was quite shocked to learn about this. Hanna And I was so shocked that I asked Jake that exact question. [00:27:30] Was this interpretation new?
Jake Charles: Yes, I think that's I think that's a fair way to put it at the NRA's kind of energizing moment in the seventies. And with Reagan's presidency in the eighties was first or not first, but at least alongside advocates, we saw legal scholars publishing and we saw gun rights activists publishing in law reviews and in legal journals arguments. The Second Amendment had been misinterpreted for the past hundred years by [00:28:00] the federal courts, and that actually does protect an individual right. They claim to discover a lost history that hadn't been there before and that everyone had overlooked when they were interpreting the Second Amendment, and that it actually protects an individual right unconnected to any service in a militia. So it certainly has not been the prevailing view throughout American history. There is really strenuous debate about how much of it is recovering, what had been an old view that was lost and how much of it is. Creating a new view that responds to current [00:28:30] concerns.
Hannah McCarthy: So basically, the NRA is not just lobbying members of Congress. They're contributing a new philosophy to the academic and legal discourse.
Nick Capodice: They are. But as Jake said, there is to this day debate about whether this philosophy is completely new or it existed hundreds of years ago. And we're just bringing it up again. And to add to this thought, former chief justice of the Supreme Court, Warren Burger, in an interview with PBS in 1991, said that the gun lobby's modern day interpretation of the Second Amendment was, [00:29:00] quote, one of the greatest pieces of fraud. I repeat the word fraud on the American public by special interest groups that I have ever seen in my lifetime, end quote. And all this brings us to the next Supreme Court decision invoking the Second Amendment. District of Columbia, the Heller.
Archival: We will hear argument today in case 072 90, District of Columbia versus Heller. Mr. DELLINGER. Good [00:29:30] morning, Mr. Chief Justice. It may please. The Court The Second Amendment was a direct response to concern over Article one, Section eight of the Constitution, which gave the new name.
Nick Capodice: And by 2008 there had been a few federal laws regarding guns and lots of state and municipal restrictions. The big ones that I should mention here are the Brady Handgun Violence Prevention Act, often called just the Brady Bill from 1993. That requires instant background checks to be performed when anybody [00:30:00] buys a gun. Now, there are loopholes to this. By the way, a study in 2017 found that 22% of gun purchases happen without a background check. And when we're looking at state and municipal gun laws, the relevant one in this case is one from 1975. It's a law that forbid residents of Washington, D.C. from keeping handguns in their homes. Dick Anthony Heller was one of six parties in this case. He was a police officer who used a gun at work, but he said he wasn't [00:30:30] allowed to have one in his home. The case was argued in March of 2008 and the court issued its opinion three months later.
Archival: Our opinion is very lengthy, examining in detail the text and history of the Second Amendment.
Hannah McCarthy: How did they rule.
Nick Capodice: For Heller. For the view that the Second Amendment protects your right to own a gun in your home.
Jake Charles: And in Heller? The Supreme Court endorses that view by a vote of 5 to 4. So it's the five more conservative justices on the side of the Second [00:31:00] Amendment protects this individual right and the four more liberal justices who look at the same history, the same sources that the majority looks, looks at and says, actually, it's tied to a militia. It's not an individual. Right. Unconnected to what that prefatory clause says it's connected to. Right. And what the court said in Heller, or at least the five justices in the majority, what they said was the militia was the reason for the codification of the Second Amendment. This is the reason they drafted it and put it in the Constitution. But their [00:31:30] reasons for putting it in there don't restrict what the scope of the right was. And so what they said, the scope of the right is, is this second clause the right of the people to keep and bear arms? And what Justice Scalia said, writing for the majority, was that self defense is at that core of the right of the people to keep and bear arms. It might not have been the reason that they put it in there, the reason they ratified the Second Amendment. But that was the core of the right that they were protecting.
Nick Capodice: And now, because the Supreme Court is the interpreter of [00:32:00] the words in our Constitution, the Second Amendment is about our right to own a gun, regardless of our involvement with the militia.
Hannah McCarthy: All right. The Heller decision allows handgun ownership federally, but as we see with so many Supreme Court decisions, you know, it often takes some time for that decision to apply to all the states. And this matters a lot because state laws are the ones that actually affect our lives.
Nick Capodice: Right. And the Heller decision took two years to apply to all the states, which it did in another 5 [00:32:30] to 4 ruling almost the same justices except in the minority. You got Justice Sotomayor instead of the now retired Justice Souter. And this is a case called McDonald V City of Chicago. Chicago being another city where handgun ownership was restricted. And this opinion was written by Justice Alito.
Saul Cornell: And in the McDonald decision, which was the case that applied Heller to the states and to localities, incorporated the Second Amendment, to use a phrase familiar to those of you who [00:33:00] study the Constitution out there. So Justice Alito says, well, clearly they decided to rewrite these provisions and take away the focus on the militia. So therefore, it's an individual right, which. Fair enough. But he stops reading right in the middle of the sentence, because the very next line in all these state constitutions is in the legislature shall have the right to regulate arms in public.
Nick Capodice: For example, in his opinion, Justice Alito references the Texas Constitution of 1869, which does say, quote, [00:33:30] Every person shall have the right to keep and bear arms in the lawful defense of himself or the state. But there is no mention of the second half of the sentence which says, quote, under such regulations as the legislature may prescribe.
Saul Cornell: So literally, you have the originalists being textualists; to the point in the text where it contradicts what they want to do. What tends to happen in American constitutional law all too often is we invoke history. But the history that we use to construct [00:34:00] our law is a kind of bizarre combination of mythology, ignorance and anachronism, which is a fairly potent cocktail. If you're mixing one up, you know, one part ignorance, one part anachronism and one part myth. I mean, it's a heady brew, but it's it's not really what historians understand the past to be. I mean, the the basic principle we start [00:34:30] with as historians is if you're not a little confused by how differently they approach something, you're probably not understanding what they meant.
Hannah McCarthy: Now this is an episode about the Second Amendment and its history and its interpretation in the courts and the public discourse. But it is also about America's relationship to guns. Now, when the Constitution was written, [00:35:00] our framers were wary of parties, right? They were wary of factions, even though they happened almost immediately and over the years. Gun regulation has indeed become a partisan topic.
Nick Capodice: It has a very partisan topic, and it's grown more partisan over the last 30 years. A quick example. In 1992, the NRA donated to the campaigns of candidates for the House and a 6040 split, 60% to Republicans, 40% to Democrats. But in 2016, [00:35:30] Republican candidates received 98.4% of such donations.
Hannah McCarthy: Nick, what's next? If we are so deeply divided on this, what can we expect in the next 50 years?
Nick Capodice: Well, since Jake Charles teaches a class at Duke just on the Second Amendment, I asked him what his students say. Do any of them change their mind?
Jake Charles: So I think most of my students come into class thinking that [00:36:00] gun regulations are totally fine and that the Heller decision is bogus. I think by the end of class, they're both conflicted about both of those from the kind of that side of the aisle in that, you know, there is an ambiguous history there. Right. There are things you can point to in the founding era, these concerns about tyranny, these protections for an individual to defend themselves. And so there's lots of there's [00:36:30] maybe more evidence than they had thought there would be. When they just look at the Second Amendment, they're more conflicted about these regulations over particular people possessing firearms. Most of them, I think, get to that point in the class and they say, well, if we're going to have this right, it's got to be available to everybody. It doesn't make sense to limit it to these classes. That's just, you know, that's just racist or classist. On the other side, I think what a lot of my students who are against regulation are strong Second Amendment supporters come away a little more conflicted about is [00:37:00] that the fact we're not talking about are you for the Second Amendment or are you for gun regulation? It's always throughout American history been been both. There has been a strong gun culture. There has been a strong regulation culture. And so it's not just this monolith of of are you for gun regulation, it's this particular proposal. Are you for this particular proposal? And a lot of them say, well, yeah, not everyone should have guns.
Hannah McCarthy: Now we're recording this episode three weeks after the mass shooting in Buffalo, two [00:37:30] weeks after the school mass shooting in Uvalde, Texas, and one week after the Warren Clinic shooting in Tulsa. So from a constitutional Second Amendment viewpoint, Nick, are things going to change? Did your guests talk about how we can consider gun rights in the light of America being the mass shooting capital of the world?
Nick Capodice: Yeah, they did. Alexandra Filindra said she didn't think anything would change anytime soon as gun control is such a volatile topic [00:38:00] that nobody specifically no Republican running for Congress would dare talk about restricting access to guns because they'd be primaried out. But I have to add, as of just a handful of days before this recording, there has been an announcement of a bipartisan deal on gun legislation. It's the first of its kind in over 30 years.
Archival: Tonight, with the news of a tentative bipartisan Senate agreement on what would be the biggest new federal gun legislation in decades, the [00:38:30] package is narrow and short of what President Biden and many Democrats want.
Nick Capodice: And to be clear, yes, as of June 14th, no bill has been proposed in the legislation drafted, but ten senators from both parties have worked on it. Now, Jake said there are certain regulations that his students on both sides of the debate agree upon. Specifically red flag laws. Those are laws that allow the police, family members or coworkers to petition the state court to disarm [00:39:00] someone they believe is a danger to themselves or others. And finally, Saul said, We're not going to get anywhere if we don't talk about it.
Saul Cornell: So any reasonable approach to the problem of gun violence in America, because it is a uniquely American problem, at least in the industrial democracies of the world, has to both recognize that gun ownership, private gun ownership, is a deeply rooted tradition in value in American [00:39:30] life, but so is gun regulation. So the logical and reasonable argument we should be having is, are there any things we could be doing that would reduce the toll and horror of gun violence, that doesn't impose an unreasonable cost on those people who want to have guns? And is it possible to formulate policies that make it more difficult for people? We don't want to have guns to have [00:40:00] them that again, only minimally burden those who want to have guns. That would be a calm, thoughtful, productive discussion, which we never have had as a country in my lifetime. And which would be nice to have.
Nick Capodice: This [00:40:30] episode was written and produced by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton, Christina Phillips as her senior producer, and Rebecca Lavoie our executive producer. Music In this episode by Frances Wells, Peter Sandberg Auto Hacker Apollo [00:41:00] Site of wonders, dam of Beats Peerless Golden Age Radio Major tweaks Fabian tell pictures of a floating world. I love using that song, Cooper Cannell, Blue Dot Sessions, Those Tried and True Warhorses, and the Man. The Myth. The Legend. Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio. All right.
