L&CP Symposium 2019: Gun Rights & Regulation Outside the Home | Panel 4
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L&CP Symposium 2019: Gun Rights & Regulation Outside the Home | Panel 4

October 8, 2019


DARRELL MILLER: All right. So I’m not doing my
duty very well here, but this train is now
running a little bit late. But why don’t we
start our last panel? For those of you
that were wondering, there is a reception
that’s taking place after this final panel. So you know, I am the– lawyer / historians on this
panel between you and booze. So just, you know,
we apologize– SAUL CORNELL: Not an
enviable position to be in. DARRELL MILLER: I think
it’s in the rotunda room at the Washington
Duke, and so you’re invited to come and have
a drink and continue the conversation
of what I think has been an incredibly informative
and engaging program so far. And really, really
thankful that we have such splendid
participants at this panel. And of course, to
Jake and Alison, who have done such a good job
sort of putting this together. So I’ll keep my
introductions pretty short, let the panel speak
for themselves. In order of their
presentations, we’ve got Jud Campbell, who’s
an associate professor at the University
Richmond Law School. His academic focus is on
constitutional history. He’s published very well– Yale Law Journal, Stanford Law
Review, Law and History Review. Clerked for Judge Diane
Sykes on the Seventh Circuit and for Jose Cabranes
on the Second. And holds a bachelor’s degree
from the University of North Carolina Chapel Hill, so he
took all his meds before he came into Duke, I think,
and two master’s degrees from LSC, where
he was a Marshall Scholar, and his JD from Stanford. Saul Cornell is going next
after Professor Campbell. He used to be Paul
and Diane Gunther Chair of American History
at Fordham University, and he also teaches
in the law school. He’s the author of two
prize winning works in American legal history– one on the nation’s
leading– and is one of the nation’s
leading authorities on the early American founding
era and constitutional thought at that time. He’s the author of A
Well-Regulated Militia: The Founding Fathers and
the Origins of Gun Control, and that and other
work has been cited by legal scholars, historians,
and by several courts, including the Supreme
Court of the United States. Our last speaker is a
Professor Joyce Lee Malcolm, who is the Patrick Henry
Professor of Constitutional Law and the Second Amendment. She’s a historian, a
constitutional scholar, active in the area of
constitutional history, focusing on the development
of individual rights in Great Britain and America. She’s the author of eight–
count them, eight– books. I wish I could sort of aspire
to that kind of productivity. Most recently The Tragedy
of Benedict Arnold: An American Life, which was
published in May of 2018. She also has written
many books and articles on the Second Amendment
and gun control, as well as individual rights, and was
cited by the Supreme Court in the majority
decisions in both Heller and in McDonald versus
City of Chicago. And she has just been
appointed and confirmed by the Senate to the National
Council on the Humanities just this past August. Congratulations. And with that, we’ll begin. JUD CAMPBELL: All
right, thank you. So I’d come at this
less as a historian of gun rights in particular and
more as a historian of rights. And my general shtick
is that, in order to understand founding
era debates about rights, and indeed, debates about
rights even through, say, 1950, you need to step back from
thinking about freedom of expression, or freedom of the
right of religion, or the right to keep and bear arms. And instead, try
to conceptualize how people thought about
the concept of rights. And then, also,
to think about how people thought about the
enforcement of rights. Institutionally,
how is it that we go about enforcing these things? And in both respects, there
are fundamental differences in the ways that people
200 years ago thought about the concept
of rights, even though there are, at times,
very close similarities. And so the first step is to
think about, what is a right? And it turns out that there’s
not a single definition of a right at the founding. Instead, there is a
discourse about rights that’s grounded in the political
philosophy that undergirded the entire constitutional world
of the founding era, which is social contract theory. So social contract
theory is something that is familiar to people
who take political philosophy classes now. It’s not very familiar for
people study the Supreme Court or constitutional doctrine. But 200 years ago, it was
actually an essential part of constitutional discourse. And social contract
theory posits that you start in a state of
nature with natural rights. And then, and this is sort
of a thought experiment, then you agree each
and every person agrees to leave
the state of nature to form a political society– a body politic– also called
the people themselves. And the people
themselves, then, may choose to create a government or
to delegate power to a monarch to better protect
their natural rights. Now, natural rights,
under this theory, are something that
can be, and should be, regulated in promotion
of the public good. So when the people come
together to better protect their right to freedom of
religion, right to move– their liberty of locomotion– right to liberty itself,
right to property, and so on, there is an understanding
that those rights can be regulated in
promotion of the public good. And we see the promotion of the
public good defined primarily in opposition to the
promotion of, or pursuit of, private interests. So the government is not allowed
to pursue its own interests at the expense of the people. The king is not
allowed to pursue the interests of his friends
or himself at the expense of the public welfare. At the same time, there
is a concept of rights, that I call fundamental
positive rights, that operate as specific restrictions
on governmental power. And so these are rights
that are actually defined not in terms
of human capacities in a state of nature– right to move, right to speak,
right to think, and so on– but instead are defined in
terms of a particular aspect of governmental authority. So the right to a jury
trial is a positive right because it’s determined– it’s defined in
reference to government. It’s a governmental– the jury
is a governmental institution, and so that is what we
would call a positive right. Right to habeas corpus,
right to confront witnesses, right to due process, and
so on, are positive rights because they are things
that are specifically limiting governmental
power, or obligations on the government, in
reference to the way it acts towards citizens. Now, we have a concept
of natural rights that clearly covers
certain things that are contained within the
First and Second Amendments. So speaking, thinking, praying,
worshipping, owning a weapon, carrying a weapon– those are
all things that are easily identified as natural rights. They’re human
capacities that aren’t the creation of government. They aren’t themselves a
governmental institution, and so those are types
of rights that we can identify as natural rights. And those rights, in
general, would then be regulable in promotion
of the public good. But there is an understanding
that certain types of governmental
regulations of those rights would not be in promotion
of the public good. How do we figure
out what those types of governmental regulations are? In the English
experience, the way we figure those dimensions
of governmental power that are outside of the scope
of governmental authority, is through custom. We have a set of
political settlements throughout English
history, particularly focused on the 17th and
18th centuries, that settles certain aspects of– debates over– what the scope
of governmental authority should be with respect to,
say, regulating speech, or regulating religion,
or regulating the right to keep and bear arms. And so, what this
means is that you have not a unimodal
concept of rights, but actually a bimodal
concept of rights. And you’ve got to be
really careful when you’re looking at the sources
because the sources sometimes will be talking about
rights in this sort of broad, general sense
of natural rights. It covers nearly everything,
but the degree of protection that it offers is very thin. And it’s the type of
thing that is determined– the scope of governmental
power with respect to these natural rights– is
determined by public policy debates about what
types of restrictions of liberty and property
would or would not promote the public good. And at the same time,
we have this discourse about particular
settlements that are reached throughout
history about the, let’s say, right to prior– right to speech
includes the ability to speak without government
punishing you for criticizing the government in good faith. Or the right of
freedom of the press includes a strong
protection against being forced to get prior
permission of the government before publishing
what you want to say. Or as relates to the
Second Amendment, we have a set of English
debates about the right to keep and bear arms that
then would inform what it is that the right
to keep and bear arms entails with respect to
governmental authority. And so that’s what
you’re going to hear a lot more about from
Saul and Joyce is, what is this English experience? How do we define what
the tradition is? And that type of debate,
when it has a certain degree of settlement– principle against prior
restraints, the rule that the government can’t
punish you for good faith criticism of the government– those types of
political settlements operate as sort of determinant
legal rules in some respect. But then they are also a source
for further argumentation. And so the way that this
plays out at the founding is that you have a
general right to speak. That right can be regulated in
promotion of the public good. We know that certain
aspects of regulation are beyond the scope
of governmental power because we have the customary
tradition of protecting against prior
restraints, protecting well-intentioned public
debate, and so on. And then, if there is a
further governmental power that is exercised in a way
that people believe to be contrary to
the public good, we can then have a public
debate about whether that type of exercise of
governmental power is consistent with,
or in derrogation of, the freedom of expression. And we can draw on
the tradition and try to have arguments about what
the tradition entails when we’re making those
arguments, but those are arguments that are
fundamentally political. And so, what you would
have then at the founding is some aspects of
protection for natural rights that are judicially
enforceable, namely those aspects that are wealth
settled through custom. And then, you would
also have the capacity to engage in a broader discourse
about extending protection for certain types of– against certain types
of– governmental action that would not be judicially
enforceable, but instead would be decided through
political discourse. Now, the problem that you
get into in the 19th century cases on concealed
carry is that what we have in the 19th century is
two things that are developing at the same time. So the first is the emergence
of a new problem that creates a new legislative
response, the new problem being escalating violence by
use of various weapons– Bowie knives;
handguns; and so on. And then secondly,
you have the emergence of a legislative response,
which is to restrict, for the first
time, the concealed carry of various
types of weapons. All right. At the same time in
the early 19th century, you see judges
becoming increasingly self-confident about their role
as the enforcers or guardians of constitutional limits
on legislative power. And so, what that means
is, that judges then start to increasingly step
in and try to enforce limits, not only that have been
specifically decided through customary
tradition, but also to articulate in more
general terms what it is that the legislature
is or is not allowed to do. And so, what we start to
see in the 19th century is a jurisprudence
of the police powers. What sort of uses of
general legislative power to promote the public
good can legislatures act on, and which ones
are outside the boundaries of their ability to
pursue the public good? And so, the problem
that you’re going to see in these early
19th century cases is the way that existing
doctrine tells you to respond to new problems is not
delineated by tradition, because the problems
themselves are new. And therefore, there
is no tradition to clearly tell you what
it is you’re supposed to do or not supposed to do. The way that you
would originally have responded to
that type of situation is to have an open debate
about what the tradition means, and a debate about
what sorts of powers would be in promotion of
the public good or not in promotion of the public good. Judges, though, have
role limitations that prevent them from doing
that sort of general interest balancing-type analysis. Judges are not inclined
to have debates about what the sort
of abstract meaning of a particular tradition is. And so judges
start to articulate limits on legislative power
in more legalistic terms, in more formalized terms. And so, what we see in
the early 19th century debates over concealed
carry, is a mixture of responses to this dilemma,
which is, how do we articulate limits on legislative
power, while also acting in accord
with limitations on the judicial
role that prevent us from doing the type of
general interest-balancing that customary constitutional
traditions would suggest? And so, these early
cases are, I think, really nice illustrations
of that sort of central dilemma of rights
jurisprudence for the next 200 years, which is, how is it– how is it that we create
legal doctrines to implement a general sort of political
philosophical principle that governmental
power should be only in promotion of the
public good, or not and promotion of
the public good? And so, this is what I think
gives rise to the problem that Greg, for
instance, was talking about on the first panel,
of conflicting interests. And the response
that judges typically give for the first
several hundred years is either to say, this
is just a question of legislative judgment, and
that is generally the approach that judges take in nearly every
case for the first 150 years in police powers jurisprudence. Or they articulate some
more legalistic restriction on the way that the
legislature can use its power. So this is the same type
of doctrinal development that gives rise to, say,
the businesses affected by a public interest or not
in the Lochner Era period. What we see the court
do in the 1940s and ’50s is engage in a more realistic
jurisprudence, a jurisprudence that acknowledges
the real interests on both sides of the equation. And the courts engaged in
that period in an effort to more carefully evaluate
what those interests are from a realistic standpoint,
rather than this sort of false legalistic standpoint. And I think that the court in
the ’60s and ’70s really starts to shift away from that
sort of balancing approach and returning to a more
legalistic approach to evaluating rights, but one
that’s no longer as deferential to governmental power– in particular, in
areas involving freedom of religion
and freedom of speech. And so, what we see
in Heller is really an extension of that approach
to evaluating enumerated rights, an approach that now has
sort of merged the two strands of rights
jurisprudence that we saw at the founding,
an approach that takes general natural rights,
any governmental restriction of freedom of expression, or
any governmental restriction of the right to carry
or possess a weapon; turns it into, then,
a legal question– a question of legal doctrine– in a way that just would not
have happened at the founding. Because at the founding,
these questions are fundamentally political. To say, I have a right to
carry weapons outside the house at the founding is a perfectly
permissible argument. That is well within the
boundaries of founding era rights discourse. But the core question,
then, is, what is the countervailing
policy interest that might justify the government’s
ability to regulate that? Would that countervailing policy
interest, in the aggregate, be used in a way that subverts
the public good more often than it aids the public good? If so, I have a
political argument against governmental
power to exercise this type of restriction. But what I’ve done now is
not to make a legal argument to a judge, but rather to
engage in a political argument to the body politic about
what its constitution is. That’s exactly what Madison and
Jefferson are doing in response to the Sedition Act. They’re not making a
legalistic argument to a set of judges about
the meaning of rights; they’re articulating limits
on governmental power to pursue the public good, based
on a set of policy arguments about what sort of exercises– of governmental power– are
more dangerous than others, and using that sort
of broad discourse to try to define a new
tradition in exactly the way that English customary
constitutionalism would entail. And so I’m very skeptical
of using history to provide specific
answers to questions that weren’t debated at
the founding for exactly this reason. We would have open public debate
at the founding about what the traditions mean and
about what sort of powers would or wouldn’t be
conducive of promotion of the public good, not a
sort of modern, legalistic, post-1970s doctrinal approach
to these sorts of questions. So I think I’ll stop there. DARRELL MILLER: Thank you. Saul? SAUL CORNELL: Do I have to do
anything too cue the screen? SPEAKER 1: Let’s
see if it starts. DARRELL MILLER:
You point to this– point to the sky. SAUL CORNELL: So while
the screen is descending, dramatically I might add,
I want to add my thank you to the Duke Firearms Law
Center, and to Jake, and Alison, and Joe, and Darryl, because
they really have done something quite remarkable down here. When I first got into this
debate, too many years ago to actually
give you a specific, I sort of wandered into this
debate quite by accident. Most people who get
into this debate have a strong feeling
about firearms. I was, like, you know,
firearms-shmirearms, you know? I was interested in
this debate because I saw history being abused. And it’s a bit like that
episode from Seinfeld, where Jerry’s dentist,
you know, converts to Judaism because he’s tired
of being the butt of the jokes and he wants to tell the jokes. And at the very end, Jerry
goes into a confessional and explains this to the priest. And the priest says,
and my son, you’re offended by this as a Jew? And he says, no, I’m
offended as a comedian. [LAUGHTER] And that’s sort of
always been my problem– that most people I deal
with in this debate always think it’s about guns. But for me, it’s always
been about the history. So with that note, what
I want to try to do, is talk about how history
has been much abused, and to sort of go through
some very specific claims that have been made that I
think are erroneous. But the point is not to make
a kind of guild argument. My point is not that you
have to be a historian. My friend Jud is one of the
best constitution historians of his generation, and every
time I read something by him, I just marvel at how good it is. And the charge of
law office history, which I’ve made
on many occasions, is not something that
is exclusive to lawyers. I think historians do it
all the time, as well. It’s very tempting and it’s part
of the problem of confirmation bias, which we all
know is something we all have to be on guard. So I’ve started out
here by sketching what I think are the
emerging, based on the best scholarship out there, what I’ll
call the historical paradigm. And I’ve given you Clio,
the muse of history there. And another paradigm,
which I think is ultimately not
historical but ideological, and it’s libertarian. Some of you are probably
thinking, that’s not fair. You have a beautiful
picture of Clio and you have that
picture of Ayn Rand. Why couldn’t you find
a flattering picture? In fact, that is a
flattering picture. I think political scientists
year in and year out have voted her the
ugliest political thinker of the 20th century. Not to be lookist,
but, you know, she has been described
as the gateway drug for young conservatives. So with that, the question
is, what did liberty mean? What did the right
to bear arms mean? What were the limits? And you know, which of these
models makes more sense? So I don’t want to get into– I was at a conference
where there was a Canadian legal
scholar who basically said, I can’t believe you’re talking
about the Statue of Northampton in terms of modern gun policy. What kind of crazy
country do you live in? I said, America. He said, oh, that’s
right, originalism. And the one point,
and I’ll return the statue of Northampton,
is that most people who try to dismiss
the importance of it– and believe me, if
I had my druthers, I mean, I actually was going to
issue a trigger warning talking about safe spaces because I
have been known to be very triggering for originalists. So if there are any
originals in the audience and you feel it
triggered, you know, you’re actually feeling what
I intend to convey to you. If I had my druthers,
I wouldn’t be talking about statutes from Edward III. But this is what the world
that Scalia has given us. And basically, if you read
Eugene Volokh, or David Kopel, or my colleague, Nick
Johnson’s textbook, they’ll say that, the only
limit on traveling armed is if you traveled in
affray of the peace. But if you actually
read the statute, it’s very clear that bringing
force in a fray of the piece is separate from riding
armed by day or night in fairs or markets. It’s just a different
part of the statute. So you know, far be it
for me, a historian, to lecture lawyers on modes
of statutory construction, but you know, the
text is the text. All right. So, oh, sorry, I
blanked that out. Didn’t mean to do that. All right. So unfortunately,
and I suppose this will make for some
interesting sport for the rest of the afternoon, I’m going
to talk a lot about Joyce, because Joyce’s
his work is really central to this
libertarian paradigm. I think at this
point, it’s very clear that she’s just wrong
about almost everything. And most English
historians think she’s wrong about
everything, but I don’t want to make this an
argument from authority. I want to just show
you the evidence, and I just want to see
what Joyce has to say. So in a recent article
in a book– a great book, by the way, on the
right to bear arms– she says, Pollock
and Maitland, who are authors of one of the
great treatises on English law, don’t even mention the
Statute of Northampton, presumably concluding
it was not important. Well I’ll suggest that– oops, sorry, I didn’t
mean to do that. Well, of course, the treatise
goes to the reign of Edward I, and the statute
of Northampton is from the reign of Edward III. So I would suggest there’s
an alternative explanation about why they don’t
talk about it– because it hadn’t been enacted
by the time the book ends. So you know, in terms
of trying to dismiss the Statute of
Northampton, we’ve got to get the chronology right. And you know, what one of the
first commandments to anyone’s who’s doing history is to
get the chronology right. And I think there’s some
serious chronological problems with Joyce’s argument,
this being one of them. And essentially, Joyce
makes several claims that I think are wrong. She says, the Statute of
Northampton was rarely enforced and it was an emergency measure. It only related to affray, or
brandishing, or actual assault. And because there
was an obligation to assist in
preserving the peace, that– the idea that you
couldn’t travel armed– would somehow violate this
other English principle. So, what I want to do is show
you why each of these things is wrong. So first of all, the statue was
reenacted on several occasions, which to suggest that
it was irrelevant and a temporary measure
is just plain wrong. Every justice of the peace
manual between Lombarde and Dalton, who were the two
great compilers of English law for a sort of broad
audience, most importantly justice of the
peace, extensively discussed the limits on travel. So they would obviously
not keep on discussing it if it was irrelevant. The reading of the
text, which Joyce offers in Volokh
and Kopel, you know, the whole Second Amendment
mafia, if you will, it’s just not consistent
with the text. The text clearly
separates out affray from a separate violation, which
is traveling by day or night in fairs or markets. Also, it’s a fundamental
problem both of logic and law to always go to the exception
to the rule to prove the rule. And if you look at
Joyce’s evidence, it’s almost always a
recognized exception to the rule, which she takes
to be the actual rule itself. So she says here, “Banning
people from riding armed would have thwarted the
militia requirement, along with the obligation to
be armed for self-defense.” That’s not what Dalton said. If you look at Dalton,
he said, “No person may carry in his journey any
gun, dagger, or pistol, charged or bow bent, but only in
time of service of war.” Secondly, he notes
that traveling armed in pursuit of the
[INAUDIBLE] and cry, or in the assistance of
preserving the king’s peace, is perfectly acceptable. It’s an exception
to the prohibition on the Statue of Northampton. And then, further underscoring
the point, it says that, even if you have to do that,
“‘Tis most discrete to be assistant to some ministerial
office in this matter.” So even if you’re
going to do, that you’d be well advised to do it only
when summoned by a JP, or only in conjunction with
a representative of the king’s peace. All of this just makes
this claim, I think, false. I mean, there’s no way
to reconcile that claim with this evidence. SAUL CORNELL: If we
actually look carefully at the expositions
in the statute, so, “Go ride or armed defensively,
or with an unusual manner of servants or attendants,”
those are two ways, those are, per se, the
crime that disturbs the peace of the people. It’s important to realize
we’re in a time where the king’s peace implies
a monopoly of violence. Anything which
causes a disturbance is a violation of
the king’s peace. And even to presume
to carry a weapon outside of the
recognized exceptions, if you’re not legally
authorized, is to, in fact, say that the
king is not doing his job. I need to arm myself. Under traditional theories
of English law and monarchy, that is a rebuke of
the king’s majesty. That’s a crime. And you’ll notice, also, that
the crime of brandishing– drawing a weapon, or striking,
or assaulting, or breaking the peace– is separate
from the separate crime of riding armed
defensively, which is a terror to the king’s peace. So all of this
evidence is, I think, impossible to reconcile with
the sort of right of peaceable carry that Joyce and
David Kopel and Eugene Volokh have all posited,
which is just not true. The evidence just
does not support it. Sorry, that’s my cheesy
PowerPoint effect. I’m one of the few
people in the room that has to teach undergraduates,
graduates, and law students. And believe me,
going up in front of 300 hormonally-enraged
undergraduates without a PowerPoint
slide is probably more dangerous than going into
some of my old neighborhoods in Brooklyn, which
probably I can’t afford to live in anymore. And that’s another subject. And then, of course,
there’s the fact that a number of leading
English historians have basically argued that
Joyce’s account is just wrong. And perhaps the most
recent and most significant is Tim Harris, who’s one
of the leading authorities on the Glorious Revolution. And as Harris says in this
book that Joyce and I both have an article in, “The
Glorious Revolution has been extensively studied and
debated ever since it occurred, yet until Joyce’s
work no historian had ever sought to argue
that one of its most significant accomplishments
was to establish a right to bear arms for Protestants.” In fact, Harris goes on
in another place to say, that the proper reading is
the English provision actually reasserts the
right of Parliament to regulate firearms,
and it limits it by both religion
and class, which is hardly a strong foundation
for an individual right. OK, how am I doing on time? DARRELL MILLER: Three. SAUL CORNELL: Three minutes. Here is a justice of the peace
manual from early 18– well, 18th century America right
before the American Revolution. You’ll note that the description
of the principle embodied in the statue of
Northampton says that, any person who
shall go ride or armed with unusual and
offensive weapons, and in affray, or among any
great concourse of people, is a violation of the principle. So again, we’re not
talking about just affray. We’re not just
talking about assault. We’re talking about
a separate crime, writing armed in contravention
of the king’s peace. Now, if I had more
time, I could take you through this story
further to show you how this English
tradition fragments. And one of the big problems
about Second Amendment scholarship is
that it’s cut off. It’s siloed off
from other fields in both the history
of criminal law and the history of
American legal history. Virtually all of American
legal history at this moment acknowledges that there’s
tremendous regional variation, and that English common
law splinters and fragments into different kinds of common
law cultures in [INAUDIBLE] the slave south and the north. Yet, if you read Second
Amendment scholarship by guns rights-oriented
people and libertarians, it’s always this
monolithic tradition that’s fairly unchanging. Well, nothing is unchanging in
early American legal history, and nothing is monolithic. So at a very minimum, they
accounted for diversity. So I’ll just end with one
point that sort of picks up on Jud’s point. If you look at
Heller, it’s funny that all the case
law is southern. You have to watch out for Nina. He’s kind of always tricky. Tricky bugger, he is. And so the great
question is, what was happening in
the rest of America? And at the point that
Heller was decided, we didn’t have a lot of history. It was a big silence. But we now know there was a
separate regulatory tradition outside of the south, and
that regulatory tradition was much more restrictive
about public character. So I think if we’re going
to move forward in this, we have to be a lot more
rigorous about the sources. We have to avoid some of
these claims that are now demonstrably false, and we
need to recognize the diversity of the American experience. Ultimately, this
may be a good thing, because maybe this will bring
us back to Federalism, which may be the only way to deal
with the gun debate, given the radically different regional
gun cultures in America. So on that note I returned
to my anti-Federalist roots, and I look forward to Joyce’s
response and your questions. Thank you. DARRELL MILLER: Ms. Malcolm? JOYCE LEE MALCOLM: I never
realized I was part of a mafia. [LAUGHTER] Usually historians
get to go first because we’re doing history. And being a woman, I usually
get to go first of the first. Now, I get the last word,
and I’m really pleased I do, because I did not expect that
Saul Cornell’s essay would be completely against me. And I’m here actually not
just against him, although I do have one quotation from him. We’re supposed to be
looking at the right to carry a gun outside
the home, and that’s what I’m going to
be focusing on. My issue is, why are we
still talking about this? We have had two major
Supreme Court cases– one in 2008, one in 2010– very serious analysis
of the history. And in fact, I think the history
was really terribly important, because until the
1970s and ’80s there had not been a lot of
historical research into it. Part of it was that people
just kind of assumed, from the founding, that
they had a right, as it says in the amendment,
to keep and bear arms. At any rate, these two
decisions found, one, that the core of
the Second Amendment was the individual’s
right of self-defense. And that, I think
that is why, in some of the other talks
that you have heard, people are so passionate
about not willing to have their weapons taken from
them and to have to be victims. It’s sad, but there is a lot
of violence in this country, and people feel much
more confident if they know they can
protect themselves, particularly women
and the elderly are able to protect themselves. The court said that the
right to keep and bear– you have a right
to keep and bear those weapons in common use for
self-defense and other lawful purposes. In McDonald, which
incorporated the right to self-defense for
the nation, they had to decide whether it was
fundamental to our scheme of ordered liberty
and system of justice, and that was what
Alito found– that it was fundamental to our
scheme of order, liberty, and system of justice. After all of that, I
must say, I do wonder why we have to still be arguing. And part of the
reason, I think, is that both the Washington
ban on residents having a handgun in their home– and by the way, in
which you could not bear the gun from one room
to another within your home, nor could you put it together,
it had to be kept disassembled, nor could you put it together
in a case of a intruder coming into your home. So it was really
kind of a blanket ban unless you happened to
have the gun before 1976. But both the Washington
ban and the Chicago ban were bans on having
a gun in the home. And so, even though the
court went to great lengths to explain every word
in the Second Amendment, the move has been to say,
OK, well, we’ll give up. You can have a gun
in your home, but you can’t take it anywhere else. So Chicago, their gun law
having been overturned, decided you couldn’t take
it out to your porch. You couldn’t take
it to your garage. In your home, and that was that. But if the core is
self-defense, self-defense is just as important
outside of your home as inside of your home, and that
was what the court had decided. Here’s Justice Thomas on it. He said, “I find it
extremely improbable that the Framers understood
the Second Amendment to protect little more than carrying
a gun from the bedroom to the kitchen.” I mean, if you’re
talking about bear, obviously it has to be outside
of the home, as well as inside. Now we get to Saul. Saul Cornell is an expert at
kind of picking and choosing what he wants from history,
which is not exactly what we’re supposed to be doing. But anyway, here he
is saying, “There was no traditional right
of peaceable armed travel under Anglo-American law.” So that’s what I want
to briefly look at– deep history, I guess. But we’ll look quickly
at the English background and the American use and then
back to the Supreme Court. The English people were expected
to not only to a hue and cry follow the sheriff
to chase culprits; they were obliged to
protect themselves. That was how you were
keeping the king’s peace. You had a duty to defend
yourself, your family, and your neighbors. They took turns standing
watch at night and ward during the day. They stood watch on
highways to keep the peace. In order to do that,
you had to be– able to be appear ready apparel. So it wasn’t just
that they were only allowed to follow
the local sheriff, but they really had local duties
to help keep the king’s peace. Now, the Statute of Northampton,
which has been resurrected, I should say, by
people who would like to believe that
there is no right to peaceably carry a gun– 700 years old. It was passed during a
period of dynastic turbulence and actually plague. But as you’ve seen before, it
forbids anybody but the king’s servants coming
into his presence, or that of his justices
or other ministers doing their office with
force and arms, nor bring no force in
affray of the peace, nor go or armed and fairs,
markets nor in no place elsewhere. The issue is affray
of the peace, and it’s almost never do you
see a case in which there’s just somebody going
along with a weapon. It’s obviously a
measure to make sure that no one is out
there with a gun, brandishing it to
terrorize people, which makes perfect sense. And some of the similar acts
have been passed or reasserted in America with that
same idea, that you can’t go carrying a gun to
terrorize your neighbors or anybody else. Now, just one example of how
this was used in England. This is the case of Sir
John Knight of Bristol. And I have to give you a
little bit of background. This was in 1686 before
the English right, however imperfect it was, from
the English Bill of Rights to have weapons– that the people had
a right to have arms. The king at that time
was James II, who had converted to Catholicism. And for Catholics, I should add,
in the audience, I should say, it wasn’t mere bigotry
that the Catholics were under various liabilities. It was that, ever since
the English Reformation, the pope had called upon
Catholics in England to overthrow the
Protestant monarchy. So there was still these
concerns about Catholics– even though the
king was a Catholic, there were a lot of laws
against what Catholics could do. Now, Sir John Knight was
on the council in Bristol, and he was an ardent
Protestant, keen to enforce all those laws against Catholics. But the King didn’t know
quite how to get at him, because after all, he was
trying to enforce the law. So the King’s counsel
told the people in Bristol that the
government there, that he needed to be charged
with wrongful use of a firearm because he was “creating
and encouraging fears in the hearts of
His Majesty’s subjects.” He was a busy actor
in trying to enforce these anti-Catholic laws. And he had actually taken his
gun into a Catholic service while people were there. And so he was being charged with
encouraging fears, you know? Just not just carrying it. What happened? Well, the Chief Justice,
after hearing this said, “Tho’ this statute,” this is
the Statute of Northampton, “be almost gone in desuetudinem. Almost nobody used it anymore,
and this wasn’t in 1686. I mean, It was hundreds
of years old by that time. He said, “Yet where
the crime shall appear to be with evil intent
it will come within the act tho’ now there be a
general connivance to gentleman to ride
armed for their security.” So basically, even though he
was riding armed and carrying his gun around, they were
not able to get him on this because the jury decided
that he had not actually put people in fear. He had gone into this
Catholic service, but he hadn’t arrested anybody,
hadn’t done anything with it. And the King failed
in his attempt to try to sort of disarm
political opponents, or people who were busy
actors, enforcing laws that he didn’t like with
this Statute of Northampton. Now, shortly after James II
was deposed, as it were– he fled, and we have the Glorious
Revolution in England. It’s glorious because it
was a bloodless revolution. And as a result of it,
the English Parliament, or the convention parliament
and then the Parliament that followed, passed
a list of rights, which were to reassert
rights that they felt that James II
had failed to follow or had actually violated. And they claimed
that all of these were ancient and
indubitable rights. Some of them were not
ancient and indubitable. They were trying to kind of
shove into this Bill of Rights the things that
were problematic, that they want to see in there. And one of them was
this right to be armed. It wasn’t an ancient
right, really. I had tried to track it down. It was a duty. People had a duty to be armed,
but they didn’t have a right. And this is the language
of that forerunner of our Second Amendment. That’s a century before our Bill
of Rights, that the subjects, which are Protestant,
which who were about 90% of the population, “may have
arms for their defence Suitable to their Condition and
as allowed by Law.” And Saul was right. This is sort of problematic. What do we mean by suitable
to their condition? That means their social status. If they were wealthy, they
could have lots of weapons. That was not the worry. If you visit any of
these wonderful castles there in the
Highlands of Scotland, they have wonderful decorations
of muskets in all directions decorating their house. But if you were a poor
person amassing weapons, there was some idea that maybe
you have something in mind. So there was this suitable
to their condition. And as allowed by law
obviously left the way open for controlling it. So, what’s important
is, how did this work out after it was passed? What did they mean? Well, there were two streams. And I’m going to
go through these because I don’t know how
much history you can bear before you get to your drinks. However, there were a series
of Game Acts that were passed starting in the 17th century. And one of them, in 1671,
among the other things that you weren’t allowed to
have in order to hunt, because hunting was a privilege
of the wealthy, was guns. For the first time, a gun
was put on this list in 1671, along with hunting dogs,
and nets, and other things. And this was not enforced
by the general courts. It was enforced by game keepers,
and so it was not really very well enforced. After the Bill of Rights,
the English Bill of Rights, guns were amended from all
of the future Game Acts. And there was a case
that came up in 1739. You have to realize that it took
a long time for the justices and others to actually know
what changes had been going on, so some of these guidebooks
for justices of the peace were plagiarized or copied
over and over again, with only slight changes
made in the new edition. So there was a case in
1739, Rex vs. Gardner, about the wrongful use of a gun. Somebody had a gun and someone
else took him to court for it. And the court decided, “that
a gun is not mentioned in this statute of 1706, and though
there may be many things for which bare keeping of
which a man may be convicted, yet they are only such
as can only be used for the destruction of game,
whereas a gun is necessary for defence of a house or
for a farmer to shoot crows.” You do not shoot crows inside
your house; I hope not. So I mean, that was
the way they saw it. That you needed a
gun, it was absolutely necessary for defense of
a house or for shooting crows and varmints. A much later case came
up, and at this point the court was just astonished
anyone should bring it up. It is not to be imagined
it was the intention of the legislature in
making this Game Act 5 and 14 to disarm all
the people of England. So after that, what seems
like a problematic right, the courts and Englishmen were
really serious about making sure people could have weapons. Now, William Blackstone
wrote his classic book on the Commentaries on the Laws
of England– great bestseller on this side of the Atlantic,
as well as in England, and 10 years before
our revolution. And he goes through all of the
rights that Englishman had. He talks about self-defense
is justly called the primary law of nature. It’s not just another
one of those rights. This is your key right, because
law can not be there every time you need protection. And by the time it gets there
it’s picking up the pieces, so basically, people need to
be able to protect themselves. Primary law. So it is neither
can it be, in fact, taken away by the law society. And I think that’s
why people don’t want to give up some way
of protecting themselves. It’s really very, very basic. And then, he says,
that this right in the English Bill of Rights
is for self-preservation and defense. So it has these two aspects,
as our Second Amendment does– your personal
self-preservation and defense– in case the other
rights are taken away, and that’s how
Blackstone sees it. OK, now, a couple of
other interpretations of what that right to be
armed meant in England. And in 1785, the
Recorder of London, who was the legal counsel
for the City of London, was asked about the
right of subjects to carry weapons, and carry
weapons to assemblies, and so forth. And he says, “The right of his
majesty’s Protestant subjects,” this was a few years before
all of the liabilities against Catholics were taken away, “to
have arms for their own defence and to use them for
lawful purposes, is most clear and undeniable.” And then he goes on to write,
“that every Protestant most unquestionably
possesses individually may and in many
cases clearly must be exercised collectively.” And then, there’s one more
bit of English history that I’m going to impose on you. But I think this is very clear. That it’s true that
English right about arms is very problematic in
the way it’s worded. But we have a case
in which the judge goes right to the heart of it. Rex v. Dewhurst was
about an assembly of people who were
protesting an earlier violent massacre of peaceful
protesters called the– I’ve forgotten the name of it. I’m blanking out. SPEAKER 1: [INAUDIBLE] JOYCE LEE MALCOLM: Yeah,
the Peterloo Massacre. Thank you very much. You know your English history. Thank you. The Peterloo Massacre– so that
was terrible because this group of protesters who
were against the– what they felt was the unfair
representation of Parliament and the Bread Acts,
was protesting. And they did not
disperse when asked, and so, they were
actually fired on. So this other group protested
against what happened to the extreme, the massacre. And the leaders were
brought before the court. And the judge, in
this, Judge Bayley asks these questions
about how you interpret that English right. He says whether it was the
ordinary individual had a right to bear arms and whether
they had a right to carry them. And he said, “A man
has a clear right to arms to protect
himself in this house. A man has a clear right
to protect himself when he is going singly
or in a small party upon the road where he
is traveling or going for the ordinary for
purposes of business.” Now, somehow this has
escaped Cornell’s– SAUL CORNELL: 1820. JOYCE LEE MALCOLM:
It is 1820, but it is a help in trying to
understand exactly what was happening in the
years around the time that the Americans,
at the founding, were crafting their own
constitution and rights. So it’s a way of
understanding what was happening in the English right. And I should say in
America, obviously, every single colony
had in its charter a guarantee that the
residents would have the same rights as Englishmen– the same rights as Englishmen. They and their children, as if
born and abiding in England, and this was clearly one of
the rights of Englishmen. Now, a lot of the
English tradition was brought over
here, the right– you had people who were to be
armed to protect themselves and their families, to
protect their community. There were actually,
and I didn’t want to list all these because
we can’t be here forever. But there were laws
about how everybody– all householders had to provide
people and their Virginia towns with weapons; everybody
capable of bearing arms; and to be ready. And there were some
in which they had to travel with those weapons. The Virginia Act
excluded slaves, which was one of the
first American acts that sort of set our
rules about slavery. But in other states, or
other colonies at that time, that was not the case. At any rate, people
were actually required to have weapons,
and sometimes, in fact, to take them to church. They were also required
sometimes to travel with them. Now, I don’t want to go into
the whole history of the Second Amendment and the drafting. I’m sure most of you are
aware of the language of it. I hope that you’re aware of
the background and the debates. I mean, Madison referred
to all of these amendments as guards for private rights. The Senate rejected
the possible amendment after to keep and bear arms. The suggestion that it add,
for the common defense, they voted that down. So basically, it was meant
to be an individual right. And all of the history
and discussion of it was used by the Supreme Court
in those two court cases. But these are– this is from
the Philadelphia Federal Gazette and Evening Post shortly after
the Bill of Rights was drafted, but before it was ratified. And so they were explaining to
the people what was in these and what it meant. And this particular article
got reprinted in New York and in Boston. And it really mirrors what
Blackstone was saying. It was one of the most cited
authors by our founders, second only to
[? Monescue. ?] And this is the way he interpreted it,
or, excuse me, the article did. As civil rulers, not having
their duty to the people duly before them, may
attempt to tyrannize, and that’s the military forces
which must be occasionally raised to defend our country,
might pervert their power to the injury of
their fellow-citizens, the people are confirmed in
their right to keep and bear their private weapons, not
the state’s weapons as a part of the militia– their private weapons. And now, I’m going to conclude
with one of your heroines, Ruth Bader Ginsburg. Now, in writing the
majority opinion for Heller, Scalia could not resist putting
in a comment of Ginsburg’s from an earlier case,
Muscarello, in which she defined what bear amount. And this is what she
defined what bear meant. “A most familiar meaning is,
as the Constitution’s Second Amendment indicates, ‘bear,
wear or carry upon the person or in the clothing
or in a pocket, for the purposes of
being armed and ready for offensive or defensive
action in a case of conflict with another person.” What I love is that, of
course, Ruth changed her mind when it came to Heller. She voted on the other side,
that there wasn’t– you know, that it wasn’t a right
to actually carry it. But he, Scalia, kind of– I don’t say turn the
knife in, but he actually used her quotation to explain
what she meant earlier on, when it didn’t include
the Second Amendment, was just talking
about the word bear. OK. I guess that’s all I have
to say on it at the moment. I don’t want us
to go on forever, and you need to have some
time to ask questions. I don’t think that I’ve
been unfair to the history. I’m a historian,
and that’s my job, and is something
I’m very proud of. I’ve never, except for
Cornell, been accused of picking and choosing. He likes to talk about
law office history, so all you lawyers
should be careful, right? But there’s a friend of mine
who has talked about history of this law, which also
tends to be the idea that you pick and choose. I think that the worry
about law office history is that lawyers– and
it’s understandable– start with a particular case
that they’re trying to make and then pick things
that support their case, whereas historians are supposed
to sort of look at the context and see what it’s telling them. And I think that’s what I have
done and others have done. So thank you very much. I appreciate the
opportunity to be here. [APPLAUSE] DARRELL MILLER: All right. So I just wanted to
be noted that this is the only panel I’ve ever
been on where the historians are more combative than the lawyers. [LAUGHTER] So let me– in the sense
of, like, trying to preserve the peace, right? One way of sort of looking
at these papers is that– what we have is– we have sort of two poles with
what Professor Cornell has offered and what Professor
Malcolm has offered. And I see, Professor Campbell
sort of in the middle, right? So there is a premise
here that there might be some sort of right
to firearms in the home, but in terms of public
carry, that that is– there is some sort
of public regarding or some sort of public
purpose aspect to it. I think I’m hearing a
thread within the papers that that’s correct. And it’s also a point of
political contestation. That is, the founding era
would have seen public carry as something that was a
matter of natural rights, but organized around
some principle of– for the public good. And how we think
of it, whether we think of it as a public good
in terms of a public duty, or we think of it as
a public restraint, is the axes of division
between our historians. And I’m just wondering, what
do you think about that? You know, to the panelists. If I’m misunderstanding
the relationship between these arguments, or not. So I’ll open up to
the panel for that. JUD CAMPBELL: Yeah. I mean, I think that’s right,
that it would have played out as a matter of political
contest at the founding, had they enacted a
concealed carry ban. It’s plausible that the
debate would have come out in favor of the
folks who opposed the ban, for the simple
reason that there was, at the founding, not a
particularly good reason to enact a concealed carry ban. And so social expectations
and general public policy considerations
could well have led to a resolution of that
debate in favor of the right. The point that I’m making
is that, viewing the right in that sort of
narrow way, I think, under sells the complexity
of founding era rights discourse in a
really profound way. And I would also say that
I’m reluctant to embrace a notion of what the
Second Amendment means in this sort of modern, heavily
positivist and textualist way, that we tend to argue
about these things. At the founding, the conception
of rights being written down was much thinner. The idea was, we
have the rights. They’re actually guaranteed
in the social contract; to a large extent, guaranteed
through custom and tradition through the people’s recognition
of their fundamentality. And we write them down to
help preserve their longevity, to help encourage people
to learn what they are. And potentially, insofar as
they are legally enforceable, help encourage judges to
actually stand up and do their duty to enforce them. And so I see the
enumeration project less as sort of
specifying the full range of governmental power
in every respect, and more as of a piece with
a long tradition of American and English customary
constitutionalism. JOYCE LEE MALCOLM:
I think Madison wanted in his list of rights,
and they ended up his list, because there had been
a lot of suggestions of possible amendments
from other states, to pick on things that were
not going to be controversial, that would easily pass. And I think there was just such
a general feeling that people had this right to self
defense, and to be able to protect themselves,
and requirements that they protect each
other, that this– it was not controversial. What would have
been controversial, as you’re suggesting,
about concealed carry, because they believed
that the only people that carry a concealed were
villains, or people who wanted to rob you. Whereas, open carry was
what honest people did. And for some reason,
and you may know when that switched,
or someone may, we now feel better
not seeing the gun. But in the past, it
was just the opposite, that they felt
concealed carry was for people who were
being clandestine or wanted to commit
some crime or other. But I think that there was
just this general sense that this was part of their
rights, and they expected it. And if you read the
founders, they’re pretty well unanimous on it. I have not seen one
piece of evidence that they either
thought that this was only a collective
right or that there was no such right for individuals. They over and over
again say that this is part of their
rights as Englishmen to be able to defend themselves
and protect themselves, and that was one
of the things that made our country exceptional. They admit that. They felt quite proud of that. SAUL CORNELL: Well, there’s
a lot you could say, but I’ll just give
you a few examples. So it is often said that,
because they took out “for the common defense,”
that that means– that implies they were thinking
about an individual right. But that’s a circular
argument because it assumes that the only
possibilities are common defense or
individual defense. In fact, if you look at
the debates in Congress, it makes much more
sense to think, common defense in
a debating Congress would have threatened
people who were worried about using militias to put
down slave rebellions or Shay’s rebellion. Common defense in
the sense of Congress is about the defense
of the nation, so there’s a federalism
interpretation that’s actually
much more persuasive and has much more evidence. In fact, they actually
take out the word, “composed of the
body of the people,” which you don’t
hear as much about. And look, an 1820
case tells you– it’s a basic principle of
historical methodology. An 1820 case tells you a lot
about what people in 1820 thought. It doesn’t tell you anything
about what people in 1688 thought. I mean, there’s a sort of
classic historical fallacy called the fallacy of
presumptive continuity. You can’t– I mean, I
don’t doubt that, actually, the right evolved and expanded. Those 18th century cases
show that very clearly. But that’s very different
than saying that that was the understanding in 1688. I mean, that’s just not good
historical methodology anyway you look at it. JOYCE LEE MALCOLM:
It is important, though, if you want to
understand how Americans saw it at the time of the drafting
of our constitution. SAUL CORNELL: Well, 1820
still doesn’t help you with 1788 or 1791, particularly
if it’s in England. I mean, you know, continuities
of place and time– those are classic principles
of historical research. And then, you look at the
case of the Record of London. That actually is the exact
example I have in my paper that Joyce is using the
exception to the rule to prove the rule. Of course, in the middle of the
Gordon Riots where there’s days of civil unrest, one of the
noted exceptions is you can arm yourself– and again,
it’s arm yourself suitable to your condition, so there’s
still the class thing– you can arm yourself to put
down riots and rebellions. That is an exemption that goes
all the way back in common law. So it doesn’t really establish
what Joyce says it establishes. It just establishes that
there was an exception, and that exception certainly
included people using arms to restore peace,
the king’s peace. You know, Sir John Knight– you know, Tim Harris has
a great account of that. Joyce doesn’t mention that they
say that the case had better been bought under common law,
that they would have actually gotten a better
result prosecuting him under common law. Well, how could the
judge of the King’s Bench have said that if there wasn’t
a legal case against traveling armed? So again, you know,
selective quotation, taking things out of context. DARRELL MILLER: All right. SAUL CORNELL: These are
problems for historians. DARRELL MILLER: Let’s let
Professor Malcolm respond, and then we’ll take a few
questions from the floor. JOYCE LEE MALCOLM: We’re
talking about the Statute of Northampton. And under the statute
of Northampton, which is what the King
was trying to use, there was nothing in common law
that would have disarmed him. This attempt to use the
Statute of Northampton to say that he should not
go about armed, because– not just going about
armed, but armed because he was
terrorizing people– that didn’t fly. Even that didn’t fly. So the King had no way
of, under common law, disarming his opponents. And this was one way that he was
trying to do it, and it failed. But anyway, be happy to– DARRELL MILLER: Couple of
questions from the floor. Joseph? JOSEPH: I have a quick
question for you Joyce, and this is not about
mythology, which I have nothing to contribute, but more about
just what the lessons are we should draw from history. And so, to relate back
to, as you usually did, the theme of the
conference, and the sort of take away of the paper
about, like, the extension– the strength and scope of the
right outside of the home. And as I see it, there’s sort
of three possibilities, at least you could imagine. One is there’s a right inside
the home and not outside. There is the right
inside the home and they’re are of
equal strength, that is, resistant to
regulation in the same way. And then there’s the
middle position, which is– the right is, at its
apex in the home, there is more room for
public regulation sort of outside the home,
once you move in to move into the public spaces,
which I think are different. And that seems to
me to come up– that sort of division,
that middle position, in a lot of the sources,
like the Dalton, who you both [INAUDIBLE]. I mean, this is just from
the part that you quoted. If thieves shall come
to a man’s house, to rob [INAUDIBLE] lawful
to defend his house, and that makes perfect
sense, because– and again, Blackstone,
and [INAUDIBLE],, et cetera, et cetera. Is where you are, then? The middle position that the
right exists outside the home, but it’s subject
to more regulation? Because I see courts in kind
of all three of these camps. And it’s– SAUL CORNELL: That’s interesting
the way that you presented it. The court said
that it was most– the right was most
acute in the home, but it also said
that the right– that there was a right to bear. So we had a right to carry
for your self defense. And so, when you
get to self defense, I think it’s hard to say,
well, it can be regulated. Self defense is already, in a
sense, regulated under the law. But you know, I
think that it really is an important
aspect of the right. I don’t think that
you can just simply say it’s secondary to the
major Second Amendment right, because they added it in. And it’s certainly,
as Thomas said, wasn’t a question of bearing
the gun from your kitchen to your bedroom. It was the question of being
able to protect yourself. And the idea of self defense
is actually the most basic core right. I didn’t have all the
quotations John Locke and [INAUDIBLE] about it. But there’s this strong sense
that, in your hour of need, there’s nobody else there. You have to be able
to protect yourself and that you have a
individual, personal right, and that is helping to
keep the king’s peace. That, you know, it’s an
interesting approach, that question. DARRELL MILLER: Greg? GREG: I have Related questions
for Jud and Joyce So for Jud, it seems like one way to, I’m
sure, oversimplify the argument you’re making is that there
is an impossibility or great difficulty of translation
from the conception of rights that existed at
the time of the founding to the conception of rights that
the Supreme Court is talking about, for example in Heller. So it made me think about
[? Amar, ?] and you all know this better than I do. But [? Amar ?] has this argument
we’re basically, OK, the Second Amendment and other rights
in the Bill of Rights had substantive
meetings that were such at the time of
the founding, and then the 14th Amendment
acts, in his view, as a sort of means of
translation of transition, that alters the meaning
of those rights. I’m curious whether you
think that the 14th Amendment or anything else in
subsequent history serves, sort of assists, in that
kind of process of translation along the lines
you’re talking about. Like, does the 14th
Amendment in any way help to convert this complex,
politically embedded conception of rights into something
that can legitimately be enforced as a sort
of positivist right that the court is
talking about now? And the sort of related, or
parallel question for Joyce, I’m curious what you do
with Jud’s sort of critique of the kind of extension
of 18th century rights talk into the 20th
and 21st century. That he’s basically
saying, yeah, sure, a lot of people
in England, a lot of people in the colonial
era in the United States would have said that the people
have a right to X, Y, and Z. But that doesn’t mean
what right in the sense that the court is
talking about in Heller. JUD CAMPBELL: Yeah. So the quick answer
is, it could. But from a historical
standpoint, I’m very skeptical that it does. So the most likely place
that this would happen is through the
privileges or immunities clause of the 14th
Amendment, which recognizes rights of citizenship. Of course, rights
of citizenship here are coterminus with
the rights recognized in the social contract. That’s literally what
rights of citizenship are. The 14th Amendment
is recognizing those rights that exist but
doesn’t create the rights themselves. It doesn’t change
their status, but it provides an additional
means of federal enforcement that was previously lacking. And so, the way that
people like John Bingham are talking about
rights of citizenship in 1866, when they’re
debating this, is that these are
rights that already limits state governments. Now, we’re going to provide a
means of federal enforcement for those rights. But under cases like Corfield
and other early cases interpreting privileges
and immunities clause of article IV, there
is a recognition that states have regulatory
authority with respect to those rights that aren’t
delineated positive rights. And so cases like Corfield
recognize different– even though every state
has to provide citizens with the right of
property, states can define what your rights of
property are in different ways. And so that sort of
general police powers jurisprudence survives
the 14th Amendment, even on the account of the
slaughterhouse dissenters. So you recognize
that Justice Field in dissent, Justice
Bradley, in dissent Justice Swain in dissent– all of them
recognize general police powers to promote the public
good with respected limitations of natural liberty. DARRELL MILLER: Joyce? JOYCE LEE MALCOLM: Yeah. I’d like to answer your question
to Jud, if you don’t mind. I’m really glad that you
brought up the 14th Amendment. It’s really
important, and it says a lot about the attitude
toward the Second Amendment. I mean, before the Civil War,
when you had the Dred Scott opinion, Taney said that,
if the blacks were citizens, they could keep and carry
guns wherever they went, actually says that in that case. And one of the reasons
one of the strong motives for those amendments
after the Civil War was that these recently freed
enslaved people were not being allowed to
carry their firearms. They weren’t allowed
to have them. They weren’t
allowed to use them. And it was one of their
rights as citizens now. So you know, the Civil War
really kind of outlines those difficulties of being
outside of a right like that, that other people
could prey on you, that you are unable
to defend yourself. And now, you were supposed
to get all the same rights as everybody else. So it was a good question. If you want to try
me with your second, the one that was not with me– GREG: So that actually gets
a lot of the way there. But I guess, then, the
follow on is, how do you get from that point to
judicial enforceability against the power
of the legislature in the sweeping sense
that we now associate with constitutional rights? JOYCE LEE MALCOLM: Well,
we like to think that, as Jefferson said, that
they were unalienable. That the passage of 250 years
has not kind of, you know, have these basic rights vanish. You don’t want the right to
freedom of speech to vanish, or the press, or, you know,
I think that it’s still really essential. And I think that, because the
core of the Second Amendment is self defense, there’s nothing
more essential to me than that. We still need– we
still don’t have, despite our police
and our Army, anyone who’s there to protect
us every day, all day. We really still need that
personal right of self defense. DARRELL MILLER: With
your forbearance, I’m going to ask one question
in this lightning round, right? Because I think I’d be remiss– I think I’d be
remiss when there’s a panel of people that are
either steeped in history or actual historians,
trained historians, not to mention the
new corpus linguistics database, the work of
people like Neil Goldfarb, or Dennis Barron, who been sort
of mining these 18th century documents. And when they mine
them, what they come up with is that the term
bear arms is not actually used in the individual
sense, typically used in a collective military sense. And so one of the questions I
have is, like, if that’s true– and I’m not a good
enough sort of empiricist to know– if that conclusion,
which I don’t think has been rebutted yet is true
about the usage of the term bear arms in the 18th
century, what is the entry point for the kind of history,
the kind of social history, political history that everybody
in this panel sort of works with? JOYCE LEE MALCOLM:
Well actually, Scalia rebutted
that idea in Heller about only talking about bearing
arms only being exclusively in the military context. What I was going to say
is that before Heller, the people whose felt there
was no individual right used to talk about the bear
arms clause because keep was so awkward. Keep meant somebody actually
had it in their home. After Heller, the bear
arms clause vanished. Keep is OK, and there’s no bear. But actually, Scalia
goes into this idea and actually looks up
every place that he can find bear arms, you
know, as an analysis, to show that it isn’t
exclusively and only used in a military context. And there were founders who
talked about bearing arms around their
estates or whatever. But that is something
that had come up. And of course, the
dissent uses that. Everything that they saw
in the Second Amendment, every bit of the
language to them, was exclusively a
military context, and that was part of it. SAUL CORNELL: I hate to be a
stickler for chronology again. But since the corpus
linguistics was published after Scalia died, I don’t
know that one could actually argue that he rebutted it. The whole point of
the corpus linguistics is it got beyond the very
impressionistic use of evidence that’s Scalia did. In fact, if you follow
the footnote trail, it turns out that he
referenced an article by Clayton Cramer, a gun
rights activist, that was published in the
Georgetown Journal of Law and Public Policy which sounds
very, very high powered. But I looked it up, and
it was the 570th best law review in America at the time,
of course out of 1,500 law reviews. Now if we think
about, what does it mean to make an
argument from authority, I’m putting 570th
best law review not as a really great source. And what the corpus
linguistics evidence shows is that they were just wrong. They use English
text interchangeably with American text. The most recent evidence
shows that out of 1,000 uses, 900 were unambiguously military. 99 of the remaining
100 are judgment calls. And the only unambiguous
use was the translation of a French text talking about
orangutans throwing stones as a form of bearing arms
against their enemies. So not to make a
monkey out of Heller, but literally their best
evidence is the monkey example. And I’m pretty sure that
wasn’t on their minds when they were drafting
the Second Amendment. So the corpus linguistics
stuff is damning, but you haven’t heard
the leading originalists on up to it. That’s kind of disappointing
intellectually. And then, if you think
about the rule on preambles, which of course, Eugene Volokh’s
arguments about preamble was totally shredded by David
[INAUDIBLE] at the time. And you know, instead of going
to 19th century treatises, Scalia might have actually
gone to John Jay, who might be a more relevant source. And Jay actually
issues an opinion on the meaning of
preambles from the 1790s. And he says, in the case of
two possible constructions, the preamble is the tiebreaker. So do we go to 19th
century treatises that Scalia probably did– that
the founders didn’t have access to, or do we go to the
author of The Federalist and the first Chief
Justice who said that, if it’s any doubt,
if there’s even one counterexample, the
preamble is the tiebreaker. And we know that there’s
the orangutan example and then there’s the
other 900 examples. DARRELL MILLER: OK. SAUL CORNELL: So even
using the preamble, it’s clear Heller is
just completely wrong. DARRELL MILLER: So I would– JOYCE LEE MALCOLM: You should
have been on the court. JUD CAMPBELL: I would say
that the type of evidence you’re talking about would be
highly relevant to delineating what the relevant
tradition is that might define the positive right. But I would strongly
resist any suggestion that there’s no natural
right outside of the home. There is. The problem here
is that, defining what that means in terms of
limits on governmental power, requires, as Greg suggests, some
task of translating a rights framework that we no
longer believe in, into a modern, positivist,
judicially-managed rights project that began in
the middle 20th century. And so, as a historian,
I can’t tell you how we’re supposed to do that. But I think that is the
sort of fundamental reason why we’re having this debate
in a very different way than it would have played
out 200 years ago. DARRELL MILLER: And with
that, drinks are available. [APPLAUSE] SPEAKER 1: Thank you. DARRELL MILLER: Are you
going over to drinks? SPEAKER 1: I think just
after the water clears. DARRELL MILLER: All right. SPEAKER 1: Joyce, did you
get back your flash drive? Oh it is over here. SPEAKER 2: I wasn’t
going to ask you

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