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Civil Rights: The Heller Case
Jun 5, 2025
Federalist Society 2008 National Convention Mayflower Hotel, Washington, DC November 20, 2008, 3:45 p.m. - 5:15 p.m. East & State Rooms * Prof. Lucas A. Powe, Jr., University of Texas School of Law * Prof. Nelson R. Lund, George Mason University School of Law * Prof. Adam Winkler, University of California, Los Angeles School of Law * Mr. Clark Neily, Institute for Justice * Moderator: Hon. Diarmuid F. O’Scannlain, United States Court of Appeals, Ninth Circuit
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breaking case on the Second Amendment District of Columbia versus hel I der o scanland judge on the United
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States court of appeals for the ninth circuit and I will be moderating today's panel to discuss the case we have four
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highly qualified individuals and experts on the subject of the Second Amendment all of whom have
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had distinguished judicial clerkships they are on my right
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professor Lucas Poe Jr of the University of Texas who clerked for justice William
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O Douglas Professor Nelson lond of George Mason University School of Law who clerk
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for judge Pat hien bam on the fifth circuit and Justice SRE de o Conor
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Professor Adam Winkler of the University of California Los Angeles former law clerk to my
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colleague Judge David Thompson and C Neely senior Attorney At The Institute for justice Justice and
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co-counsel for the plaintiffs in the hel case itself who clerked for federal
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district judge Royce Lambert right here in Washington DC now before going further let me first
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remind us all of the text of the Second Amendment and I quote it reads quote a
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well-regulated militia being necessary to the security of a free state the
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right of the people to keep and bear arms shall not be infringed end
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quote now one reason why the hel decision received so much attention before and after it was handed down is
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that since the time of the second amendment's adoption in 1791 the supreme court has only rarely
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interpreted its meaning indeed before hel the most recent Supreme Court case addressing the
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amendment in any way was United States versus Miller in
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1939 even Miller only discussed the language of the amendment
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briefly in the Years between Miller and Hiller academic commentators gradually
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began to pay attention to the Second Amendment and the meaning of its right to keep and bear
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arms ultimately controversy circle around whether the right to bear arms is
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an individual or a elective one hel resolved that question among others in
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favor of a former interpretation in a 64 page opinion authored by Justice Scalia
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for the Chief Justice and justices Kennedy Thomas Nito and a 46 and 44 Page
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desense by justices Stevens and Brier respectively
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for the Justice remaining justices justices sutor and
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Ginsburg well now with that very summary presentation in mind I turn to this
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afternoon's panel Professor po will start us off with a brief summary of the Hiller
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decision itself and then provide a critique of the historical writing of
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the opinions in the case Professor Lund will then analyze
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the opinion from the standpoint of originalism and it appliations for originalist Juris Prudence in the
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future Professor Winkler will then shift years a bit to talk about what was
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actually what has actually been going on in the lower courts since the hel decision came down particularly how
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often and to what purpose lower courts have been analyzing the decision finally Mr neing our only
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practicing lawyer and a member of the team that won heler in the Supreme Court will Direct our attention to Future
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doctrinal issues such as whether the Second Amendment right is incorporated into the 14th Amendment and therefore
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binding on the states the panelists will speak in the order in which I have introduced them
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and for 8 minutes each we will then have some cross panel responses following
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which I will open the floor to questions for any member of the
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panel before we begin I should also add a word on my own role here I will be
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moderating the panel but not taking any position on any of the issues the panelists discuss since as a ninth
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Circuit Judge such legal questions may very well come before me someday with
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that I suggest we begin with Professor po Professor well what is interesting
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about the two principal opinions in the case that of Justice Scalia and Justice Stevens is both of relied on originalism
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and yet managed to come to polar opposite conclusions uh justice Scalia
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relied on ordinary meaning originalism while Justice Stevens relied on original
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meaning uh originalism uh where he's much more willing to look at documents
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that were not public at the time in uh both of them had to deal with the
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problem that the Second Amendment poses uh unque deeply among the Bill of Rights
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in that it has a preface uh a well regulated militia being necessary to the
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security of a free state and from the beginning there has been a debate about
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whether the preface controls or the right at the end of the uh Second
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Amendment controls and uh justice uh Stevens goes with the preface Justice
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Scalia goes with the right Justice scalia's opinion is interesting because
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he worked work backwards he worked from the right to the preface first he started with righted people and noted
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that's that's talking individually because you can look at the first fourth and Ninth Amendment and show that they
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also are speaking the right of the people in individual s then he goes to keep in be arms and finds yes that's
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having a gun uh and then he turns to the preface first with a well regulated
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militia and then the security of a free state and what he does then uh and each
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of them are extensively documented and then he concludes the purpose of the
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Clause uh the prefatory Clause doesn't control the right uh it offers one but
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not the exclusive reason for why we should compete and bear arms uh and he backs this up by looking
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at state constitutions that were exent at the time then in what's for me was
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the more interesting part of Justice Gia's opinion which takes half again as
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long or half the size of the first part is he looks at post ratification
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statements uh and this is divided into uh two parts privil war and then post
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Civil War and so he's relying on a lot of 19th century commentary to show what
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the original meaning of the second amendment was in 1791
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uh this uh J as Stevens I think says kind of interesting for uh an
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originalist uh justice Stevens takes the Clause from the beginning to the end uh
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and also does a thorough job uh in his words uh there is a clear answer to the
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meaning of the Second Amendment and that clear answer is the exact opposite of Justice Leia and then in the twist that
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I like about uh Stevens's opinion is he relies on the 1939 case of the United
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States versus Miller uh one of the more ambiguous opinions that I've read uh
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Miller is about the question either was it about the militia or was it about
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whether a sought off shotgun was a militia question and Justice MC renold's
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unanimous opinion seems to rely on the government brief in the case uh and the
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government brief in the case obviously the dominant one because of the time of argument Miller had been killed in a
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gully in Oklahoma with this gun near him and was not represented at the Supreme
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Court and my view is if you're going to win a case without an argue a case
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without an opponent if you lose retire how Justice Stevens could rely on
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an ambiguous and and not particular good opinion by perhaps the worst judge of
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the 20th century uh should have caused some uh consternation I'll just say one thing
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about Justice Brier's opinion he agrees with Justice Stevens but says even if
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Scalia is right the District of Columbia's ban on handguns is an
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appropriate balancing of the interests involved uh sort of a sophisticated view
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of Felix frankfurter's concurring opinion in Dennis United States where frankfur found Congress could balance
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away the First Amendment rights that issued uh both opinions
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are really confident that they are right and the stunning thing is real
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historians have written about the Second Amendment uh Saul Corel Jack ROV Joyce
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Malcolm and real historians are split on the meaning of the Second Amendment uh I
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have written on it and uh favoring scalia's opinion but with far less
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certainty than he has although that could be said about any issue between us and
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uh I I was uh troubled when I got a
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response from Professor raikov who's who is a specialist in the fin era and the
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response was you don't understand and if somebody specializes in late 18th
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century America tells me that I don't understand late 18th century America
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I've got to take up and listen uh it seems to me that he's more likely right than I am and uh it has caused me to
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wonder quite a bit uh but I find it amazing if profession
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historians are split on what the meaning of the Second Amendment in late 18th
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century America is takes a lot of hoods for untrained judges to enter into this
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debate and try and decide it especially without taking issue with the
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historians uh you will not find Scalia explaining why break up and saw Cornel
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wrong you will might not find Stevens explaining why Joyce Malcolm is wrong uh
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it's it bothers me a lot uh I don't blame them for ignoring the people on
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the other side I teach my class constantly the value of being the serem Court Justice is you never have to
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answer a hard question just dck it uh I want to talk about for couple
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minutes the First Amendment which I have spent 20 some odd years thinking about in the context of the founding era and
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the question is for this what did the first amendment mean in
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1791 and an easy answer is Blackstone everybody all lawyers had a copy of
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Blackstone and Blackstone says freedom of speech or Freedom with the Press
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actually said consists of laying no prior restraints but it's okay to have subsequent punishment we can have the
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law seditious Li that's one interpretation and possibly a dominant
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one a second one easily represented by John Adams talking about the
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Massachusetts Constitution was that you could have seditious liel but you had to recognize
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truth as a defense in the circumstances where the speaker was uh uttering his
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statements for the public good uh so if you're telling the truth but not for the public good you could be
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convicted a third possibility is the one that came out in the Sedition Act of
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1798 which is truth is an absolute defense to scious Li and a fourth one
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articulated uh during the Revolutionary War and then clearly articulated in St
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George Tucker's Blackstone uh the first American edition of Blackstone is you
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can't have sedici Li after studying this for 20 years I I
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can't tell you what is the meaning of the first amendment in
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1791 uh I just don't know there's all
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all four of these choices are available and it seems to me that uh probably the
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first and the fourth are the least likely uh and I'd have to pick between
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one of the other middle two but I don't know that either and this what me my
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final point which is the Troublesome one I'm going to quote Justice Scalia Scalia scoffs at now I'm quoting the
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proposition unsupported by any evidence that different people of the founding
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period had vastly different conceptions of the rights to keep and bear arms this
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simply does not comport with our longstanding view that the Bill of Rights cified venerable widely
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understood Liberties and my point on the first amendment is it cloudified a
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venerable uh Liberty but it isn't widely understood what it is and this brings me
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back to professional historians if Edmund Morgan and Bernard Bal and Gordon
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Wood who I think are the three preeminent historians of the period over
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the last half century if they've taught us anything it's that the founding era
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from the end of the French and Indian Wars into early Jefferson Administration
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was a deeply creative and dynamic ERA with respect to
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constitutionalism and political Theory and thus I'm personally concerned with
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any static theory that wants to freeze American thinking at a precise point in
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history because the Americans of that era had not frozen their thinking they
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were still thinking through what they were doing and what it meant throughout
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the 1790s and we really don't get a more settled meaning until we're into Jefferson's
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administration thank you very much Prof
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L thank you I'm going to talk a little bit about originalism which is a entral concern of the fedal society and an
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interpreted me which I subscribe and I should also mention at the that that I
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agree with the result in the hel case uh justice sc's hel opinion has to be one
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of the most self-consciously originalist opinions in modern times um and with
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respect to the threshold interative issue in the case I think his analysis is quite successful reconciling the two
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Clauses of the Second Amendment presents a puzzle a real puzzle and Scalia does a
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good job I think with showing that the arguments for the individual right interpretation are overwhelmingly
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powerful so far so good but that's not enough to resolve the two specific issues in the
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case before the court uh the DC uh statute being challenged statutes being
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challenged basically two were being challenged one was a ban on handguns and
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the other one was a ban on keeping any firearm uh loaded and therefore operable
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so you couldn't have any operable firearm in your home in the District of Columbia now that second isue easy uh
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DC's requirement that all fires be disabled at all times constituted a complete deprivation uh of right
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protected by the second amendment that constitutional uh the ban on handguns
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though presented a more difficult question here I think Justice scalia's originalist approach runs into some very
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serious problems scalia's First Step comes when he says that the constitution
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The Constitution's textual reference to the right to keep and be s must refer to
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a pre-existing right now as a matter of ordinary English usage I don't think that's correct a statute for example
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could say American citizens have the right to travel to Cuba but that would not imply that they had the right for
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the statute as an a of course it is true that Americans did have a right to keep in be arms before the Bill of Rights was
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adopted and spia thinks it's important that the Second Amendment must be referring to that specific right
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why primarily because he believes that his originalist method requires that he
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determine the content or scope of the right to arm through an historical
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inquiry and that's important because a historical inquiry is the alternative
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that Scalia offers uh to Justice Brier's demand that any gun control regulation
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be subjected to an interest balancing uh analysis Scalia dismisses Brier with a C
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response that the relevant interest balancing has already been performed by the
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Constitution that certainly sounds like originalism and you almost want to stand up and cheer when you hear that but then
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you have to ask what exactly does history tell us about handgun mans I
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believe Scalia has nothing at all to say about that I maybe it's so obviously he didn't need to buy there were almost no
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gun control regulations at all in the Bill of Rights was adoped so people had an almost unlimited right to keep and
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bear arms if that's what the second amendment protects then virtually all modern forms of gun control are
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unconstitutional but that's not what scoia means maybe he means the Constitution Incorporated the right to
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arms that existed in English law but it can't be the right articulated in the English Bill of Rights because that
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right was good only against the crown and was expressly subject to abridgement by Parliament and it only applied to
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promis similarly it can't be the C law right
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identified black stuff because that too is subject to revision by the legislature as it has been in England
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and at least some of the American states well maybe he means pre-existing rights under the various constitutions
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of the American states but some state constitutions did not include a right to HS and in the states that did have
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constitutional Provisions how would you figure out what the scope of the right was since legislators weren't enacting
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gun control statutes nobody had any reason to ask exactly what was and was
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not permitted by the state constitution with some rare Exceptions there were a few rare stats but for the most part
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there weren't any weren't any attempts to r the right so how would you know what was permitted and what wasn't
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permitted I think Scalia got off on a fundamentally wrong Track by assuming
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that the second amendment protects a pre-existing right whose content or scope can be determined directly through
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an historical inquiry and one sign of the problem is that he never performs any such inquiry but that's not all when
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he tries to explain why DC's handgun ban is unconstitutional the only reason he
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getes is that handguns are popular weapons for self-defense among Americans
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today what's more he gives several reasons why modern Americans might
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prefer handguns over rifles and shotguns for example you can hold a pistol in one
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hand while you pH the police with the other to do with a 12
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G this would certainly be relevant to a Brier type analysis but it doesn't have
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much basis in the history of the 18th century where they didn't have telephones now this is not an
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originalist or historical argument if it's any kind of argument at all it's probably a disguise and incomplete form
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of the Brier interest balancing approach that Scalia disdainfully
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dismissed but things get worse scalia's opinion also contains a series of dicta
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approving several tyes of gun control that were not issue in the case little
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analysis of any kind is provided and Justice Scalia says that the historical justifications for these exceptions to
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the right to keep and bear arms will be provided if and when the court reviews a
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case in which they're an issue so with regard to these exceptions to right to arms and seem to have a case
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of verdict first and trial later if at all what's more some of the Second
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Amendment exceptions listed in the hel opinion are manifestly problematic I'm just going to talk very briefly about
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two examples first the court says convicted felons may be disarmed which sounds perfectly reasonable at first but
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it can't be right if the second amendment protects a fundamental right to have arms or self-defense how can it
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allow the government to leave American citizens defenseless in their own homes for the rest of their lives on the basis
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of nothing more than a nonviolent felony like tax evasion or insider
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trading it would make more sense to say that these felons can be silenced for the rest of their lives these crimes
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after all involve an abuse of speech such as making false statements to the government or negotiating contracts that
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the government forbids they don't have anything at all to do with firearms and violence and what about strict liability
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F felonies like failing to keep proper records of livestock transactions is that enough to just 7
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UFC section 221 to justify leaving me defenseless
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against violent criminals for the rest of your life next the court approves gunfree
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zones in what Scalia calls sensitive places such as Schools and Government buildings on what historical basis will
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courts decide whether particular places are sufficiently sensitive to justify disarming citizens who go there is a
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University campus more sensitive than a shopping mall across the street did the
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whole city of New Orleans become a sensitive place after Hurricane Katrina
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if so then I guess it was perfectly okay for the government to confiscate weapons from law abiding citizens whom the
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government cannot protect from Rolling bands of loers and criminals not withing scalia's promised
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that historical justifications will be provided later for these and other restrictions on the right to Arms I
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don't think they ever will be provided if Scalia couldn't provide an historical justification for striking down the DC
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handgun ban and issue in this case it's not very likely that he really has historical justifications to back up all
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the dict the Supreme Court gave the the sorry hel case gave the Supreme Court
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and justice in particular a rare opportunity to show why originalism
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deserves to be taken seriously unfortunately the Court's performance is
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so transparently effective that it's quite possible that this decision will become exhibit a when people seek to
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discredit originalism as an interpreted method this self-inflicted wound I think
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was quite unnecessary because I think it resulted from what might be called obsessive
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originalism the idea that interest balancing should be banished from constitutional law is probably a
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response to the obvious fact that judges can manipulate such analysis to get any
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result they want which is certainly true but interest balancing cannot be
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vanished it can only be driven underground and when you do that you
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just make a original look originalism look as Lawless and result oriented as
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the living constitutional Scalia and many of us in the federal Society have been denouncing for years
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what a thank [Applause] [Music]
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Youk we will now hear from Professor Winkler it is with great hesitation that
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I get up and stand at this Podium after Nelson M uh for fear of looking quite short in to him but I would like to
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thank judge o scanlin my fellow panelists and Federal Society for having me out here um when hel was decided in
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June of this year it was immediately declared to be quote unquote a Triumph of originalism by Supreme Court
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Advocates legal Scholars uh and newspaper reporters and certainly uh Jus
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scalia's majority opinion relies heavily on originalism looking at the original understanding of the Second Amendment to
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determine that the amendment protects an individual right to bear arms uh for self-defense and not related to militia
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service and even uh the denters Embrace originalism uh as Professor fo makes uh
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makes clear Justice Stevens adopted originalism to argue that the Second Amendment protected individual right
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only associated with militia service heler was declared to be the Triumph of a regionalism much in the same way that
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in the history books people think about Brown as the Triumph of living constitutionalism and the similarities
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uh between these two cases uh there are similarities between these two cases they were both um uh very well lawyered
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interest group litigation by uh uh uh conceived and funded uh by uh by civil
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rights groups um with recruited plaintiffs and both Brown and Herer were
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the beneficiaries of excellent lawyering uh by the team that uh that made the
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argument um this is in contrast with a lot of right to bear own litigation out there which is brought by criminals who
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are uh caught up in uh with a firearm or whatnot and they Challenge and sort of a desperate effort to get free um quite a
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contrast with the hel case but is hel a Triumph or originalism I think if it is
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it's only a Triumph of what you might call soundstage originalism you'll excuse my Hollywood references but
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that's where I was born and raised uh from afar it looks like originalism has built something wonderful uh a right to
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bear arms but as you get closer and look past the facade you see that originalism has not done very much of the hard work
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in the second Amendment or in the hel case the greatest significance of the Second Amendment is not that it creates
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an abstract right to bear arms but in that it's a limitation on what government can
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do what limits does the Second Amendment provide here the hel opinion does not
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reference original understanding and cannot reference original understanding to answer this question so where the
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rubber gets the road that is what laws the Second Amendment bans what laws the second amendment allows uh the court uh
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refuses uh to look at a regionalism and offers no regionalist defense so uh for
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instance uh why does the court say that the ban on handguns in Washington DC is constitutionally permissible uh but as
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the court suggests ban on machine guns would not be well the court says quote handguns are the most popular weapon
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chosen by Americans for self-defense in the home and a complete prohibition of their use is invalid and quote machine
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guns by contrast are quote dangerous and unusual weapons they're not in common use
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but this isn't originalism it's living constitutionalism modern conditions and modern preferences shaped the scope of
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the second amendment's meaning and protections what laws are limited what how does Second Amendment limit the
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government the court looks to popular choices of consumers in the marketplace and government regulations that are born
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of the 20th century handguns are protected because consumers in the 20th century choose to
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buy handguns for protection machine guns are unusual uh
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but because civilians don't choose them why do civilians not choose them well because federal law has banned civilians
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choose since 1934 certainly federal law interpret even if it's interpreting the
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Second Amendment can't alter the scope of the original meaning of that provision the most important paragraph
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in heler is scalia's laundry list of longstanding prohibitions that the court makes clear are not called into question
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by the opinion Professor L mentioned this list right the includes bans on possession by felons uh bans by and
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we're really talking here about ex felons right we're talking the felons who are in prison don't have guns uh and don't have access to them we're talking
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about expells who serve their sentences uh uh bans on possession by the mentally ill bans on guns in sensitive places
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such as Schools and Government buildings and restrictions on commercial sales there's not one iota of historical
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discussion in the Hower case to justify these exceptions and perhaps for good
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reason because these gun control laws are modern inventions
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restrictions on commercial sales are a product of the 20th century the founders did not Bor weapons in schools and
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government buildings and felon bands were adopted in the 1920s and 1930s as part of of all things NRA backed gun
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control laws these laws do not reflect longstanding unbroken Traditions that we
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inherited from the founders they are uh uh instead prohibitions that were worn
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of the Progressive and New Deal erands uh to respond to Modern condition of urbanization mass-produced Firearms uh
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and the rise of organized crime now perhaps there are historical analogies to these laws that could be uh could be
31:08
offered and could be used to support them I disagree with Professor Lund here the founders did have gun control they
31:13
had mandatory musters everyone with the gun had to show up and register their firearm and be ready to use it and show
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that they knew how to use it and that the gun was in working order there were laws requiring safe storage of gunpowder
31:25
and there was selective disarmament blacks were disarmed free and slave uh
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and Loyalists to the crown were disarmed in the early uh in the early Fring so the framers did have gun control laws
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that the court can draw analogies to in finding out which laws are permissible uh under the original understanding of
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the Second Amendment but the court doesn't do that why do I think this laundry list is so important because hel
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has led to a considerable wave of litigation in the lower federal courts in the 5 months since hel was uh handed
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down by the court there have been over 50 rulings by federal courts on the constitutionality of gun control laws
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the hel Court failed to articulate a standard of review and so what the courts look for uh in trying to figure
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out what the hel Court her case means for the constitutionality of these gun control laws that they have to confront
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well they look to the laundry list and say well look the court said these laws are constitutionally permissible and so
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we'll uphold this law too and indeed of those 50 DEC
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every single Lower Court decision to rule on the merits of a constitutional challenge under the second amendment has
32:36
upheld the challenge law not a single law since hel has been invalidated
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that's not to say that there won't be laws eventually invalidated I think there will be but so far today uh you're
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not seeing a lot uh uh of jumping on the hel bandwagon if you will the courts
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have Appel indeed a wide variety of laws some of these uh make up uh uh come from
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the list that Justice Scalia offers in the H case and so the courts of Appel bans by possession uh bans on possession
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by X balance bans on guns in sensitive places such as post offices and school zones courts have upheld restrictions on
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commercial sales such as bans on straw purchasing and restrictions on the importation of firearms for sale um but
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the courts have also upheld a wide variety of laws that don't really have any clear tie even to that paragraph
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although they cite the paragraph for support bans on the basis of misdemeanor conviction for domestic violence
33:29
disarmament of substance abusers and illegal aliens these laws have been upheld courts have upheld registration
33:35
and licensing requirements including permitting for concealed carry of firearms mandatory registration of
33:41
specific types of firearms and bans on sought of shotguns and perhaps as one might predict from the hel Court from
33:47
the hel decision bans on machine guns in short the lower courts have already
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upheld the vast majority of different types of EV control laws current know
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books in other words the bulk of modern gun control policy is not called into question uh at least today by the H case
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now we can contrast this a little bit to Brown uh the the comparison I mentioned earlier in the wake of that decision the
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federal courts went wild striking down laws that were uh required segregation racially discriminatory laws
34:19
fell over and over again the Supreme Court didn't even have to make the claim that we always talk about in constitutional Law class isn't Brown
34:26
limited to the educational cont that's the argument the court makes that educational discrimination is
34:31
problematic but the court uh and the lower courts then applied that principle all across uh American law we have not
34:38
seen the hel principle apply with any kind of biger uh across uh gun control laws so what we have is a lot of cases
34:45
second amendment cases but the outcomes are not very different than they would have been under the militia theory of
34:51
the Constitution of the Second Amendment I think in fact what we're seeing is that the Second Amendment is going more
34:58
uh into uh a very similar version of the right to bear arms that we have at the state level 42 States already protect in
35:06
their state constitutions the individual right to bear arms not related to militia service only for purposes of
35:12
self-defense state courts have ruled on hundreds of gun control laws challenging
35:18
the con cases challenging constitutionality of laws under these State constitutional provisions and what
35:23
do the courts do in those cases well they provide clear protection against disarmament they say that the right to bear arms if it means anything means
35:29
that you cannot completely disarm the people but short of complete disarmament the state courts across the country uh
35:37
apply a very differential kind of scrutiny to gun control legislations and will just generally defer to legislators
35:43
and allow gun control laws to survive only extreme and arbitrary and
35:48
irrational laws at the state level are generally invalidated and we might think of the DC law as an example of such an
35:55
extreme arbitrary inter rational law law a law that bans effectively all self-defense with firearms because of
36:02
the combination of the handgun ban and the uh dis assemblage requirement safe storage requirement on the Firearms it
36:09
remains to be seen how many other laws if any will be F by hel but one thing is
36:15
clear already is that whether they stand or whether they fall will not turn on
36:20
the original meing of second thanks
36:27
[Music] our last presenter Mr
36:35
CL unlike Adam it's with considerably less fear that I stand before you at this Podium than it would have been four
36:41
months and 27 days ago DC no longer being a gunfree
36:47
Zone not supposed to be carrying it so if you are keep it on the download we'll get to that uh there are two questions
36:54
basically going forward after hel that are most interest um in terms of the scope of the Second Amendment how will
37:01
be applied we've already touched on both of them in various ways the first of course is whether it will be
37:07
incorporated or applied against State local governments thats unclear and the second is the question of how much
37:13
Defence governments will receive when regulations were reviewed under the Second Amendment I think those questions
37:19
are interestingly linked and they're interestingly linked because of the history of the 14th Amendment which is
37:25
something that you will almost never hear from gun control proponents it's a
37:31
a terrible history it's among the most awful periods of history that we have in this country um and it is a history
37:39
through which the question of the right to keep in their arms is woven like a thread um and one that actually produces
37:46
I think very clear answers to the question of first whether the right to keep in their arms should be applicable
37:52
against state and local governments and second the question of how much difference governments should receive
37:58
the as we all know or assume most of us know the Privileges or immunities clause was essentially written out of the 14th
38:04
amendment by the Supreme Court in The Slaughterhouse Cases which interpreted it to uh protect a relatively trivial
38:10
set of so-called National rights of citizenship uh like the right to claim the protection of the government on the
38:15
high seas and I think that we all know that's why the Civil War was fought because that's what was going on there so uh and some people some commentators
38:22
have noted that um despite the fact that there's not necessarily consensus on
38:28
what the 14th Amendment the Privileges or immunity CLA of the 14th Amendment does mean there is nearly uniform
38:34
consensus that it does not mean what the Supreme Court said that it Slaughter so
38:40
it's a question that I think is open for reconsideration and should be reconsidered by the Supreme Court there
38:45
are already cases including one that's being mitigated by my co- Council Al huru in Chicago uh that are attempting
38:50
to bring that question to the Supreme Court it's an important question it's a question that I hope that the Supreme Court takes sooner rather than later
38:58
well what is this history that I referred to um that is relevant to answering this question under the 14th Amendment well it's an ugly history um
39:05
of basically blacks and white abolitionists not just blacks but blacks and white abolitionists following the
39:12
Civil War being disarmed for the specific purpose of making them easier to terrorize and in some cases Lynch
39:19
that was one of the vout purposes for which the 14th amendment was passed to enable the federal courts to prevent
39:26
state governments from either affirmatively disarming citizens or allowing uh robing bands and plansman
39:32
and others to disarm those people and it sheds interesting light on this whole militia question because in some States
39:38
including South Carolina and Kentucky it was actually the state militias that was through that were doing this disarming
39:44
to make it easier to Lynch people and to terrorize them that history cannot be ignored and that history will be I think
39:51
at the center um of the debate that we have over whether the second amendment should be incorporated uh and what
39:57
amount of difference cours should be given I'm sorry governments should be given um when confronted by a state or
40:03
local regulation of gun ownership there's no question that uh the the
40:09
refusal of the federal courts to protect the right to even bear arms um throughout the south in in the wake of
40:15
the Civil War which was one of the results of the slaughter house case was disastrous uh disastrous for freed men
40:22
the newly freed blacks disastrous for white abolitionists we had a history of lynching violence and Terror uh
40:29
throughout that region of the country in many cases perpetrated by white armed mobs against disarmed innocent civilians
40:37
uh and I think that it's no secret that even if the courts had said for example
40:43
that the Second Amendment or the right to keep and be arms should be incorporated against the states if there had been this idea of tremendous
40:49
judicial difference at the time in the 1860s and the 1870s that the right effective would
40:56
have been no real effect people would not have been able to go into court and ensure that they could have guns in
41:02
order to defend themselves against these rampaging laws so that's why I think that the question of incorporation and
41:07
the question of deference are linked together in this the history that surrounds the 14th Amendment and
41:13
something that we need to be mindful of I mean if we are going to do a real constitutional law if we are going to
41:18
ask ourselves how was the 14th Amendment understood by the people who wrote it and by the people who ratified it then
41:25
we have to look at what was going on the time and ask ourselves was it the understanding of the people who ratified
41:31
that amendment that it should be that local gun regulation should be given tremendous Difference by the federal
41:37
courts the very federal courts that were intended to be empowered to strike down those regulations in order to prevent uh
41:43
this violence or at least to enable people to resist it and I think the answer to that question has to be no now
41:49
I suppose it could be argued that everything has changed since then and we don't have to worry about an oppressive government um interfering with our
41:56
rights or violating our rights or exploiting us and we don't have to worry about citizens being prayed on by other
42:02
violent citizens all of that is a matter of History it's all in the past I don't agree with that suspect most of the
42:07
people in this room don't agree with that it's different now no question but it's different only in uh degree it's
42:14
not different qualitatively we still have innocent uh citizens being prayed on by other citizens we still have
42:20
incidents of the government violating people's rights kicking indoors shooting dogs to to to prosecute people for Rel
42:27
of the trivial drug offenses I'm not saying that this requires any kind of an armed Insurrection but it certainly
42:34
suggests that the right is just as important today as it ever has been in the history of this country and one
42:39
should not be lightly written out of the Constitution either by denying history of the 14th Amendment or by accorting
42:46
undue deference to State and local governments that in my judgment can not eared [Applause]
42:56
[Music] I want to probe this standard of
43:03
review a little further talked about the likelihood of
43:11
differential treatment but will the interest balancing inquiry of Justice
43:16
Brier's descent ultimately Prevail do you think I'm addressing this now to the
43:21
members of the panel well second amendment Juris Prudence developed its own version of a strict scrutiny
43:28
heighten scrutiny and rational basis scrutiny which we are familiar with in
43:33
other areas of constitutional law will its analysis be more historical and less
43:39
about interest balancing especially in view of the fact that several members of the H majority have traditionally been
43:45
hostile to such balancing who would like to take that
43:51
question among the members of the P well I
43:57
it's certainly one of the big questions left open from Hower which is what standard of review applies to
44:02
non-control laws um we tend in con modern American constitutional law we
44:08
tend to do two things we identify the existence of a right andly the courts adopt some kind of standard or rule or
44:14
test that's going to be used to determine the constitutionality of uh any number of kinds of restrictions on
44:20
that r or burdens on that right um our traditional way of thinking about this is that if we think of a fundamental
44:27
right we think that strict scrutiny is automatically triggered I don't think that's the case I don't think that's an accurate description of American
44:33
constitutional law in fact uh the court has held that uh uh virtually all of the Bill of Rights uh all those rights are
44:40
fundamental rights but the court applies strict scrutiny in only a very small number of the Bill of Rights the Supreme
44:46
Court applies strict scrutiny in the First Amendment context uh in the due proess laws of the Fifth Amendment um
44:53
but there's no strict scrutiny in uh uh in in U most of the Bill of Rights
44:59
Amendments uh the court does not use strict scrutiny Fourth Amendment cases uh any Fifth Amendment cases other than to process or uh implicity protection
45:06
cases out of the Fifth Amendment uh no strict scrutiny out of uh the sixth seventh or eth amendments um so uh the
45:14
courts often um use a whole rainbow of different kinds of standards of review
45:19
that one might apply uh in constitutional analysis and the question is why the courts why why are Court
45:26
suspect in cases and more differential in others and generally they tend to be suspect when they think that there's the
45:32
court said where there's virtually no space or almost no space for legitimate regulation in the area the reason why
45:38
race classifications are suspect is because the court thinks that almost never will a race classification be
45:44
constitutionally permissible so the courts are suspect almost never will a political Viewpoint discrimination be
45:49
constitutional under the first courts apply out strict form of scrutiny that's not the case in uh
45:57
regulation in the area almost everyone agrees that some regulation of Guns is a good idea uh and even a variety maybe a
46:04
wi variety of control laws are a good ideas bans on particularly kind of weapons bans on particular people having
46:10
weapons in particular places um these are very very common parts of American
46:15
history and uh as I mentioned 42 states have individual right to be arms Provisions in their constitutions
46:21
there's been hundreds and hundreds of cases decided under these Provisions Decades of litigation every every single
46:27
state every one of them across the board applies what they call reasonable regulation standard it's not the same
46:33
thing as rational basis review but the results are not much different from rational basis review in that the courts
46:40
uh uh going back to World War II have upheld virtually every law that's been challenged in state constitutional law
46:45
with just a very small handful of exceptions uh so I think if you take seriously both the reasons why we apply
46:51
a height form of scrutiny or a differential form of scrutiny uh and uh take this history and real long-standing
46:57
tradition of the right to bear arms that is how it's treated at in the state courts across the country in every
47:03
single jurisdiction and I think a differential standard of review seems appropriate I know now we're going to be
47:10
taking questions from before very shortly but before doing that I want to ask other members of the panel if they
47:17
agree or disagree with what you just heard I think maybe as a practitioner I
47:23
take a somewhat more pragmatic view I think often times standards just words um maybe even increasingly so from a
47:30
litigation standpoint in my experience uh as a constitutional litigator often times virtually everything comes down to
47:36
the question of who Bears the burden does the citizen bear the burden of justifying the exercise of Liberty or does the government bear the burden U of
47:43
justifying regulation and you can dress up everything else you want to words it really doesn't make that much difference
47:48
so I think that essentially what the second amend is going to come down to going forward is is where that burden is
47:54
going to be assigned I think that may actually still be up in the air if the burden is assigned to the citizen to justify the exercise of second amendment
48:01
rights I think that the Second Amendment will be gradually watered down until it means nothing um the way that for
48:06
example the court has done arguably with property rights um if on the other hand the Second Amendment is considered to be
48:13
a fundamental right uh akin to the first amendments Professor po has l m and it will be subject to various exceptions
48:20
and regulations but those will be drawn narrowly and it will be the government that bears the burden of establishing that those exceptions are are NE Neary
48:27
the citizens for generally win cases I think that's very much up in the air which way any other response on this
48:32
side of the day I think I think it's inconceivable that Adam a little closer to the mic excuse
48:39
me I think it's inconceivable that Adam will be proven wrong uh it seems to me that we're you know uh we can agree that
48:46
these are labels although they're outcome determinative labels uh and
48:52
scalia's opinion makes quite clear a lot of gun control regul is
48:58
constitutional uh and I think we're going to find a lot more of this too well I largely agree but I put these
49:05
a little bit differently but the one thing I think we can be we we know for sure is that whatever happens is going
49:10
to be the result of an interest balancing judgment by the court and it
49:15
just can come in different forms it can come in the form that comes in h opinion
49:22
which is called it a historical analysis pretend it's a historical analysis and then do interest balancing to get the
49:28
result that you want or not do it and just announce results or at the Other
49:35
Extreme you could do they could do something like justice Brier other wanted to do which just openly do a kind
49:42
of cost benefit analysis and to things up how much infringement is there on the interest of the person that wants the
49:48
gun how much weight is there in in in the government's reason for wanting to stop him from having a gun or whatever
49:55
or you do the middle which is something like the standards of review that we see in other areas of constitutional law
50:02
strict scrutiny intermediate scrutiny rational basis rational basis with bite
50:07
rational basis with two and a half bites um and of course that of course is
50:14
just as manipulable as the other two uh and you wanted a quick proof of that
50:19
just decision where they decided that uh uh racial preferences in law schools
50:26
strict scrutiny U and then of course read Justice R was descent Justice
50:32
Thomas desent and see if there's anything left to be said um so all all
50:37
of these things are infinitely manipulable what's what's really going to determine um the shape of a second
50:44
amendment jur roots in the future is how seriously uh the judges on the Supreme
50:50
Court take the purpose of the Second Amendment and they'll talk about maybe no way to know how they're going to talk
50:56
about that's what's going to determine the outcome and that's going to depend on who's on the board I would like to invite anyone uh
51:04
seed to come to the mic and be ready to ask a question before taking the first question though I'm going to ask are
51:11
there any other comments which any members of our panel might want to make either with respect to another member's
51:17
comments or followup in any way you don't want to turn that around FL is clear and I would ask you please I
51:26
would ask ask you please to identify yourself and your affiliation John Rand of the
51:32
Constitution Society during the H case the book
51:37
Administration submitted an interesting argument in one of their briefs that opens the door that I don't
51:45
think has been adequately explored in subsequent discussion they drew an
51:52
analogy to the Congressional preemptive power to regulate the time Manner and
52:00
place of congressional elections except for the place of senatorial
52:06
elections and this opens the
52:12
question what would be the Constitutional status of a congressional
52:18
statute that required voters in Congressional elections to vote within a
52:24
one NC time frame while balancing on one hand at a polling place on the
52:30
moon now by the given V ogan doctrine
52:36
that Congress has plary power within a spere that would seem to be permissible others might argue that it
52:43
would be an Abus of discretion I would argue that it would be unconstitutional because no delegations
52:50
of Power are plenary they are only delegations in a particular direction
52:57
and the only kind of regulations of militia and therefore the right to keep and bear arms that would be
53:05
constitutionally permissible would be to make militia
53:10
more effective all right which is which Mr Winkler is has referred to so I would
53:16
like the panel to comment on this line of argument and how it might be further
53:22
developed very well U comments responses
53:27
I guess I'll give it a try I I I think I think you
53:32
misunderstood the solicitor general was brief and I should say I don't don't approve of that brief but I think the
53:40
passage in that brief that you're referring to uh he was trying to find cases using what's called intermediate
53:48
scrutiny uh in the Voting Rights area uh to support the proposition that
53:53
intermediate scrutiny should apply uh to the second Amendment and so I don't
53:58
think that uh the cases he cited uh actually stand for the
54:04
proposition that uh that that that the government has slandering control over
54:10
over elections and you know said they had to be help on the moon or something
54:16
I don't think that's what those cases stand for I don't think that's what they're be cited for U which is not going to say that I approve the
54:22
intermediate scrutiny argument that that the
54:27
any other comment next question the words at to keep and bear
54:35
are often affiliation Kai alberg from Washington State uh the words to keep
54:41
and bear in the Second Amendment are often used as though they were just one but they are arguably keep and bear are
54:47
two separate words with arguably separate meanings Common Sense would dictate keep might refer to keeping
54:53
something at home whereas bear might refer to car in it now her has made clear a complete prohibition on keeping
55:00
Firearms at home is not okay it also made clear that regulation of firearms
55:06
ownership and carry laws is okay I'd like the panelist to comment on what if
55:11
anything heler says or would say about an absolute prohibition on right to
55:16
carry right to carry the right to care is a really
55:23
interesting issue um you can go back in history and laws that actually required people to carry arms for example to
55:30
church in Georgia there was a law that said that men had to carry arms to church um and there's been an
55:37
interesting back and forth back in the old days it was considered to be um sort of cowardly and to carry concealed
55:43
weapons you had concealed carry bands and those were upheld largely by state courts but I think they were upheld
55:49
mainly because it was thought at the time that it was that's what cowardly assassins did is They Carried their guns concealed my suspicion now that most
55:56
jurisdictions would prefer to have people carrying their arms concealed because it's scary to see somebody walking around over carries States and
56:03
so it'd be interesting to see if many judges pick up on that sort of uh switch I think in um uh in Attitude um the
56:11
question whether or not the ability that the state can declare that no one can carry a g anywhere at any time I think
56:17
it's an open one I'd be very surprised if that was found to be consistent with the hel ruling I admit that hel doesn't
56:22
speak to that issue but I think the idea that keep and bear is a unary phrase has been completely blown out of the water b
56:28
or at least is foreclosed now a matter of Court precedent and so the courts are going to have to give Independence to
56:37
the yeah just just a quick um that uh you know I think that's I think it's a
56:42
good it's a good observation U many of us in the field generally just refer to the right to bear arms and we ref referring to the right to keep in bear
56:48
arms uh so it's well it's a well made distinction U with regards to concealed carry laws um as Clark mentions there's
56:57
a large number the earliest gun control laws that were challenged in state courts under state constitution right to
57:02
be arms Provisions were these banss on concealed carry uh and uh a few courts invalidated them uh the majority of
57:08
Courts upheld these laws uh sometimes because there was open carry permitted but not always there were some laws that
57:14
banned even open carry and you weren't allowed to carry uh uh at all um so concealed carry laws is sort of a long
57:19
traditional courts upholding them um I think the real question though comes down to U Professor London said look
57:26
identified that the underlying purpose of the right to bear arms inher is the right of self-defense I think the court is really
57:33
one of the real interesting questions of this case is how broad does that right to self-defense become uh is it a right
57:39
to self-defense outside of your homes that mean you have a right to carry gun maybe you have a right to carry gun without being permanent or license uh if
57:45
you have uh self-defense uh obviously there's some people such as X felons uh or illegal aliens who might still
57:53
nevertheless have some uh basic right of self-defense that uh would be denied even under uh this I think that one of
57:59
the interesting questions will self-defense grow and expand and lead to the creation of more judicial rights
58:05
than the Second Amendment ever envisioned in much the same way that griswell protected a right to privacy
58:11
that then took on uh its own life and ended up protecting laws that were not uh not envisioned by even that a
58:17
regional case not saying that it will but I think it's one of the interesting questions to see where that right of self-defense goes to and where it how it
58:24
grows next question please uh Mike Loa Oklahoma City University School of Law U my question is about hel
58:32
and history several of the panelists have uh eloquently and I think correctly
58:38
criticized uh the performance of the Court's opinion in heler as the kind of
58:43
opinion is self-consciously written to be a Orthodox modern originalism and
58:48
Orthodox modern originalism focuses narrowly on the specific time of
58:53
enactment the context of enactment the late 18th century um but there are other
58:59
ways that history has been used to give meaning to constitutional provisions and
59:04
one of them is the more low Tech sort of burky and tradition-based approach that
59:10
people like Professor Ernest Young have supported and my question is is is heler
59:15
significantly more successful as a burkean opinion than as the originalist
59:21
opinion it wants to be because although there are maybe gaps in the late 18th century history as as was noted by the
59:27
panel there's tons of stuff in the Scalia opinion about the 19th century specific judicial Holdings these state
59:33
court cases from the 19th century that the court heavily relies on sites again and again and they really did help hold
59:40
things like handguns or specifically protected arms there is a right to carry that could be regulated but not totally
59:47
removed um so does that does heler work better as a Buran decision I just have
59:53
to throw this out if Professor Winkler wants to engage this Professor Winkler puts a lot of emphasis
59:58
on the practice of mid and late 20th century state courts which have taken this deferential approach to the right
1:00:05
to arms does he think it's significant that those that case law was completely
1:00:10
absent from the majority's opinion and indeed it seemed to go out of its way not to cyber give way to those and
1:00:16
instead to point to these 19th century cases and say I might argue these are
1:00:21
courts being conscientious about the right to Arms lower courts you need to shap up all right Burke versus
1:00:27
originalism any takers I I I I agree with you completely
1:00:33
I think uh that uh a Buran look at American traditions is a very
1:00:38
appropriate way of interpreting the Constitution and I think if Scalia had
1:00:44
written his opinion uh to Encompass that idea it would be far more persuasive
1:00:51
although it would require him to State why tradition ends in
1:00:57
1899 rather than continues on into the 20th century where the tradition is
1:01:05
somewhat uh I I think it's still the same tradition to the best of my knowledge no state in the last half
1:01:13
century has uh not adopted a constitutional amendment protecting the
1:01:19
right to some form the right to keep in be arms if it's been given to the voters so it seems to me the tradition has in
1:01:26
fact continued through the 20th century albeit watered down by very differential
1:01:32
State cler decisions but back to the point uh I think uh as a ber and think
1:01:37
in scoia does succeed I just just add to that um first
1:01:44
of all um Professor sh is doing excellent work on the right so glad that was here to ask ask a question I mean I
1:01:50
think that uh you could have I wouldn't never expect Scalia to do this but you could make a very good living
1:01:56
constitutionalism argument for the right to bear arms you have a right that's protected by almost every state
1:02:01
constitution in America uh I imagine that the court would interpret the due process laws to protect same-sex
1:02:07
marriage if same-sex marriage were guaranteed in 42 state constitutions because it would be an example of some
1:02:12
evolving uh Traditions um but also because as Clark points out I think the
1:02:18
the meaning of the Second Amendment might well have been radically changed by the 14th Amendment uh and looking at
1:02:23
how the 14th Amendment the interaction between those uh amendments I think definitely sheds different light it's uh
1:02:29
far more clear that the 14th amendment was designed to protect individuals from disarmament by the government uh when
1:02:36
those guns were used for individual self-defense uh I think that it's a little it's a weaker argument when you
1:02:41
look back at the original understanding of the Second Amendment the argument becomes much stronger in the Second
1:02:47
Amendment I think under any sincerely applied version of living constitutionalism EI that is any sincere
1:02:53
that's not oh the judge gets to make it up do whatever he or she wants but any sincere one that really looks to the
1:02:58
tradition and evolving standards and modern conditions I think would have to protect individual right to bear arms
1:03:04
for is it fair to say if you dislike the originalism and if you think heler was
1:03:09
uh insufficient as an originalist opinion maybe the court is saying look wait until we get to the incorporation
1:03:15
opinion and then we'll make it better stay tuned next question I'm John Walder
1:03:21
thiry year student at Columbia um Professor Winkler you said that 50 state federal courts have ruled um poster but
1:03:30
it seems like most of the things uh the legal issues that you've mentioned that they decided were Rel the machine guns
1:03:35
short out rifles the existence of a permit system entirely have there been any lower court
1:03:42
rulings um addressing the facto banss where technically there's a there's a
1:03:49
process to get a permit either to carry or to keep it in the home but the police have absolute discretion to Grant or
1:03:55
deny it no there haven't been any uh well there was a state court decision that appell New York's Licensing Laws um
1:04:03
uh but not a federal court decision I think that those are there if the one we at to identify a set of laws that are
1:04:08
most likely to be invalidated uh I think You' have uh the other cities that have bands on hand guns equivalent or
1:04:15
somewhat equivalent to DC such as Chicago um uh you and another likely
1:04:20
Contender would be New York's permitting law where New York has the most ridiculous permitting law uh in the country country where you can get a
1:04:26
permit uh they just don't give them out and uh when they do give them out they give them out only to very illustrious
1:04:32
people in New York famous people the leads mayor Ed cotch and the former publisher of the New York Times uh I
1:04:38
don't think any constitutional right of whatever sort should be died out on the basis of pure unfettered discretion by
1:04:45
an executive agency or executive bran Branch official I think you will see some of those cases probably come down
1:04:51
differently than the 50 cases I've talked about uh and I don't know how well is I know Alan G is back at the
1:04:57
table behind involved in the Chicago case uh and I think you're going you will see some successful Second
1:05:02
Amendment litigation on some of those uh especially extreme laws whether it goes much further than that I'm not not I
1:05:10
would just add one I could the those discretionary issue permits by the way
1:05:15
have also a very ugly history under the 14th Amendment they U often times you had laws explicitly disarming blacks and
1:05:22
when it became clear that those were too overtly racially discriminatory they Chang to make it local discretion so you
1:05:27
then had to go and apply to your local sheriff and guess what he was going to use some of his criteria to make that decision what color you were so some of
1:05:35
not all but some of these discretionary permitting laws actually Trace their Heritage back to the same ugly history of racism um and and racial oppression
1:05:42
in the South and I think that will come out um at an appropriate time as well and add to the uh uh persuasiveness of
1:05:48
the arguments down I'm afraid we have time for only two more questions so we'll just recognize the two that are standing
1:05:55
question Benjamin Pew from the Orange County California chapter first of all greetings to a fellow Brewing Professor
1:06:01
Winkler um I'm going to reverse my question give the question first and then a brief wind up afterwards I'd like
1:06:06
to know why the Second Amendment doesn't protect my ability to own and keep and bear a fully automatic
1:06:13
M16 and the main opinion uh in heler does talk about the usual type of
1:06:20
firearm used in the militia at the time uh back when the amendment was passed
1:06:25
the usual firearm held by people was equal to or even C certain cases
1:06:31
superior to the standard issue firearm by the by the government organized Army
1:06:38
um today the standard issue firearm the United States Army is pretty much the M16 it's fully automatic the standard
1:06:43
issue firearm around the world is the AK-47 forever invaded by a foreign army
1:06:50
is most likely to be an army of people toting in AK AK-47s why doesn't the militia
1:06:56
which you know I'm between the ages of 18 and however High it goes 45 why don't
1:07:02
I have a not only a right to keep and and bear fully automatic M16 but why
1:07:09
aren't I obligated to question I answer Ro uh well the answer that heler gives
1:07:17
is based on and it's based on a complete misreading of no uh one of the uh we
1:07:25
didn't have chance to get into this part of history the history of the courts own precedence uh but uh both Scalia and
1:07:32
Stevens uh grossly misstate the facts of the case in Miller and they do it in
1:07:39
such a way as to reinforce the impression that Miller
1:07:47
held that sought off shotguns were not protected by the Second Amendment there
1:07:53
is no such holding Miller you can't get that holding on M and the only way you
1:07:58
could get it is by uh having different facts in the case namely the ones that Scalia and and Stevens invented um and
1:08:07
then in the course of discussing the Miller case which supposedly held that short barrel shotguns are not protected
1:08:13
by the Second Amendment Scalia says well is that that might mean that machine
1:08:19
guns were protected and that's inconceivable of course it's perfectly conceivable given what Miller said which
1:08:25
was that uh the the arms that are protected by the Second Amendment are those that are useful for military
1:08:31
purposes which is your point I guess um but that all is just kind of dissolved
1:08:40
in the haze of the misreading of Miller leaving freeing Justice Scalia from the application to answer your
1:08:47
question final question hi my name is b2l and president for CH in New York all
1:08:55
about the New York City that you're talking about my question was something Professor Winkler said you criticized
1:09:01
the ruling as being non original for uh discussing what kind of guns we use
1:09:06
today in terms of machine guns versus hand guns I just wondering not necessarily Second Amendment but in
1:09:12
abstract U level are there no situations where originalist ruling the original t
1:09:19
Constitution was to look at the custom of the DAT to determine what to the
1:09:24
right example I know that I think both sides of the Court agree that for example Cru un usual punishments would
1:09:31
go by the custom the day I think was pretty clear Louisiana and interestingly enough from some SCH questions in war
1:09:38
stre Texas actually he mentioned if it was eth Amendment you may you want to talk about today one so I just wondering
1:09:44
in general if it was possible to ever have a case where original would look at custom of the
1:09:50
day no I I I think I think it's certainly possible I mean you could have a constitution right where uh you look
1:09:56
at the original understanding and the original understanding is that the courts will defer to the customs of the
1:10:01
day I guess the hard question comes in whether the courts today 200 years later
1:10:07
uh can still look to any custom that's Arisen since then if you think that a ban on machine guns is unconstitutional
1:10:14
and for the reasons we're just talk we just talked about it a little bit in the last question if you think that's unconstitutional the fact that it was uh
1:10:20
it's now not customary to own a machine gun shouldn't be the key question it's not customary because federal law has
1:10:26
banned it has taken it off the market if you had it on the market maybe it would be customary maybe it wouldn't be uh
1:10:32
maybe people wouldn't want machine guns but uh the hard part is is that machine gun B is cannot be constitutional today
1:10:38
because it's a long-standing traditional tradition but if we had this discussion in 1935 it would be unconstitutional
1:10:45
because it's not a longstanding uh uh tradition if you're going to look at custom either have to look at the
1:10:50
Customs that they believed in or you have to accept really a living constitutionalism that allows Cent
1:10:55
contemporary conditions to alter and effect the meaning of constitutional right neither way is it uh at least in
1:11:01
the last it's certainly not original understand with that response let me ask the audience please
1:11:10
to express their appreciation [Applause] [Music]
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