NOTE: We have a much more thorough episode on the 2nd Amendment published in 2022. Please listen to that one!
On today's episode: The Second Amendment. For ages, the right to bear arms was among the least controversial amendments in the U.S. Constitution. Today, it's among the most divisive issues in American politics. What were the Founders hoping to achieve in ratifying The Second Amendment? When did the U.S. start regulating guns? What qualifies as arms? We'll seek out constitutional consensus on a topic where common ground is hard to find. Our guest is Jeffrey Rosen, CEO and President of the National Constitution Center, and host of We the People.
You can check out the NCC's Interactive Constitution here.
Transcript:
Open: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. Who is the current speaker of the House? Don't even know. Will they rule in the president's favor? Will they send it the Supreme Court? You can't refer to a senator directly by their name. Congressional Redistricting. Of. Power. Executive Order. National Security Council. Civil Service.
Virginia Prescott: [00:00:21] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today. A look at the Second Amendment to the Constitution, commonly referred to as the right to bear arms. So what does it say and how has it been interpreted since the time of the founders? And how does the language of the Second Amendment inform today's policy debates both for and against gun control?
Virginia Prescott: [00:00:45] Joining us is Jeffrey Rosen, President and CEO of the National Constitution Center and host of the podcast We the People. Jeffrey, so great to have you on our podcast today.
Jeffrey Rosen: [00:00:54] It's wonderful to be here.
Virginia Prescott: [00:00:55] So let's start with the exact phrasing and then break down the language from there. What does the Second Amendment say?
Jeffrey Rosen: [00:01:01] The Second Amendment says, “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.”
Virginia Prescott: [00:01:14] So help us understand what was going on at the time when the second Amendment was ratified. What were the founders hoping to achieve with this amendment?
Jeffrey Rosen: [00:01:22] The best place to have a consensus idea of what the founders were trying to achieve is to go to the National Constitution Center's “Interactive Constitution”, where we've assembled two of the leading scholars of the Second Amendment - the conservative scholar Nelson Lund, and the liberal scholar Adam Winkler – and gave them gave them a homework assignment. Namely give us the consensus history about what the founding generation had in mind. So here's what they came up with. And these are their words. They talked about how during English history there was a concern that standing armies could oppress people and therefore you could only raise an army when you were trying to fight a particular war. And then America was founded and there was all this new power granted to the federal government and anti-federalists were afraid that the proposed constitution would deprive the states of their means of defending themselves against federal oppression and the federalists said don't worry about that. The American people are armed and therefore they can protect themselves if the federal government tries to oppress them.
Virginia Prescott: [00:02:24] So was the second amendment an attempt to check or protect against the threat of a tyrannical president?
Jeffrey Rosen: [00:02:32] Yes, a tyrannical president or a tyrannical Congress that might try to deprive the people of their liberties. The colonists had an example in England where the English Bill of Rights said that subjects which are Protestants may have the right to keep and bear arms. That was considered a liberal provision for the time because at least Protestants could do it. But they were inspired by that example and concerned that this newly empowered federal government might try to deprive the people of their liberties, and the idea was that people should be able to defend themselves.
Virginia Prescott: [00:03:02] When did guns in the use of guns first become subject to regulation?
Jeffrey Rosen: [00:03:06] Well at the time of the framing and even before the Constitutional Convention there were lots of regulations on guns. It's fascinating to go to the revolutionary era state constitutions, which you can also find on the interactive Constitution of the National Constitution Center. I know I'm plugging it but it's a really great resource. And there we list Pennsylvania and Vermont, which said that the right of the people to bear arms for their own defense or for purposes of killing game seem to recognize that as an individual right in their state constitutions. And all the other 11 states which talked about the right of state militias to defend themselves against federal oppression. So we know that during that period which was from 1776 to 1787, when the Constitution was proposed, most all of the states had provisions dealing with guns. And many of them had gun regulations. For example you could belong to a state militia but you had to present your guns and muskets for inspection in a town square to make sure that there were functioning properly and so forth. So the scholar Adam Winkler especially emphasizes that there were many regulations of guns that were considered reasonable at the time of the framing even as Federalist and anti-federalist wanted to protect the right of the people to bear arms to defend themselves against tyranny.
Virginia Prescott: [00:04:26] So once passed or ratified did the second amendment apply differently to state governments and to federal government.
Jeffrey Rosen: [00:04:33] Yes, initially the second amendment, like all the amendments in the Bill of Rights, only applied to the federal government. The First Amendment says Congress shall make no law abridging free speech. It doesn't say the states. And the Supreme Court early in the 19th century interpreted the Bill of Rights not to apply at all to the States at the time of the Civil War. In the wake of the Civil War the 14th Amendment to the Constitution was ratified and the 14th Amendment said that the privileges and immunities of people of the United States can't be denied by states or by the federal government the right to bear arms was considered by many of the framers of the 14th Amendment to be one of the privileges or immunities of citizenship. But the Supreme Court did not interpret the right to bear arms to apply against the states until very recently. It was only in the McDonald case decided just a few years ago that the Supreme Court for the first time explicitly applied the Second Amendment to bind the states. That McDonald case came in the wake of another case called the Heller case which had recognized the Second Amendment as an individual right by the federal government, in particular the District of Columbia, for the first time in American history.
Virginia Prescott: [00:05:44] The language is really important, something that has been picked apart by a lot of different people with a lot of different interests – “the right of the people to keep and bear arms” one of the clauses there. What does that “bear arms” mean or allow?
Jeffrey Rosen: [00:05:59] Well at the time of the framing it certainly meant that not only could you keep guns in the home or on your private property but you could also bear arms in public to defend yourself against a tyrannical federal government. Precisely how broadly the right to bear arms should be interpreted is a complicated question that's not answered by founding era history. We know that both sides both are conservative and liberal scholars agree. While states in the founding era regulated guns they note blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls. Gun laws today are more extensive and controversial. That's the consensus statement, and it’s putting it mildly. And essentially courts today are disagreeing vigorously about what the scope of the right to bear arms should be.
Virginia Prescott: [00:06:51] Well has the Supreme Court decided what is considered to be “arms”? You know, obviously we can't you know keep up a nuclear missile in our home.
Jeffrey Rosen: [00:07:00] That's right, and the Supreme Court in the Heller case did say that arms that were in ordinary general use are presumptively protected but suggesting that other regulations like regulations on guns outside particularly vulnerable places like schools and also possibly that unusual weapons like assault weapons that are used for military and personal defense use might be regulated. So the Supreme Court hasn't squarely answered that question. But the Heller case did contain an important sentence that Justice Scalia wrote suggesting that reasonable regulations were permissible.
Virginia Prescott: [00:07:40] How about that “well-regulated militia” part of this clause? What did that mean and how has it been understood since?
Jeffrey Rosen: [00:07:48] Well it was certainly the case that at the time of the framing people expected that if citizens were going to defend themselves against federal tyranny they would do so in the context of a militia. Militias were state volunteer organizations and citizens organizing themselves were thought to be able to protect their liberties. Defenders of gun control today emphasized that language and stress as Justice John Paul Stevens did in his dissenting opinion in the Heller case, the really the framers were most concerned about protecting the right of people to organize themselves in well-regulated militias and not to hunt game or not to defend themselves against criminals. Justice Stevens put a lot of weight on that well-regulated militia language. Justice Scalia countered that some states at the time of the framing intended to protect the right to bear arms for self-defense or for purposes of killing game as the Pennsylvania and Vermont Constitution stressed and then other scholars have noted that certainly by the time of reconstruction by the mid-nineteenth century the right to bear arms was seen as even more of an individual right as some southern mobs attempted to deprive African-American freedmen of their constitutional rights to not grant them equal protection clause and that the reconstruction framers really wanted to allow African-Americans to engage in individual acts of self-defense separate from that of the militia. So for this reason scholars like Akhil Amar of Yale Law School have said that the Supreme Court was right to recognize the right to bear arms as an individual right in the Heller case because by the time of reconstruction it was so recognized.
Virginia Prescott: [00:09:26] The second amendment and the right to bear arms is among the most politically divisive issues facing America today. Was it always?
Jeffrey Rosen: [00:09:35] It has not been so divisive as a political issue because it really hadn't been on the radar screen before. The Supreme Court barely said anything at all about the question. There was one opinion from the 1930s that suggested that any idea that the Second Amendment applied outside of the context to organize as a militia was at best facetious. The court didn't apply the second amendment against the states until recently and it really wasn't until the 1980s and 90s that citizens on both sides of the issue began to mobilize and organize. The NRA became very active in the issue, so did groups on the other side. And as the scholar David Cole, who's now head of litigation at the ACLU has noted, regardless of where you come down on gun control as a policy matter the individual rights movement should be recognized as a success story of citizens mobilizing and changing the meaning of state and federal constitutions. And that's why this issue is really up only the past couple of decades.
Virginia Prescott: [00:10:36] Knowing that now the public interpretation of the Second Amendment is one of the most polarizing issues in contemporary politics you know we have factions on the right. Asserting that there should be little to no regulation on guns factions on the left arguing that the Second Amendment was written for a very different world from our own and it now endangers more than protects citizens. Are there parts of the amendment that constitutional scholars on either side largely agree upon?
Jeffrey Rosen: [00:11:05] Well the core original purpose of the Second Amendment which was to allow citizens to defend themselves against federal tyranny is something that scholars on both sides agree about. That's what Nelson Lund and Adam Winkler agree about. Those scholars also agree that the federal government should not have the power to infringe the right of the people to keep and bear arms any more than it should have the power to abridge the freedom of speech. So they agree that the amendment has meaning. And they agree also that 18th century civilians kept at home weapons that they need to serve if called into the militia. But modern soldiers are equipped with very different weapons, which really all the disagreement comes in: how to translate the core meaning of the Second Amendment in light of changed technology. Scholars disagree about whether bans on assault weapons for example are reasonable. Our conservative scholar Nelson Lund's says that it makes no sense to ban assault weapons because assault weapons are not a distinct class of weapons. It's like calling french fries freedom fries he says. But Nelson Lund doesn't say that there should be no regulations and he has said that the proposals to ban the so-called bump-stock technology, if Congress were to pass that ban it would absolutely be consistent with the Second Amendment. So in some ways there's more agreement about the essentials of the Second Amendment than you might think from the political debate, which is so divisive.
Virginia Prescott: [00:12:36] That political debate is embittered and entrenched and comes up of course after mass shootings like the one in Las Vegas and then the discussion ends, right? And now you have hosted a number of conversations between passionate advocates on either side of the gun debate. And you know I am setting it into this bifurcated thing because that's how it all shakes out. Do you have advice for how we can have a smart, productive conversation about the Second Amendment?
Jeffrey Rosen: [00:13:04] Yes. I think the crucial thing is for citizens and students of all ages to separate our political views from our constitutional views. In other words we might think that gun control is a good idea, but the Second Amendment forbids it – or we might think it's a bad idea, but the second amendment allows it. And by thinking of the question in constitutional terms that requires us to dig in to the text in history of the Second Amendment as we're doing now. It means reading about the founding era debates. It means reading the Supreme Court cases interpreting the amendment, both the majority opinions and the dissents. And it means recognizing that the active constitutional translation is a hard one where there are no obvious answers from the text or history about how precisely to deal with technology is that the founders couldn't have anticipated. And I'd love for our listeners to approach the question with the same open mindedness that they approach other constitutional questions before making up their own minds.
