The 2nd Amendment: American Society’s Interpretation Across Time
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The 2nd Amendment: American Society’s Interpretation Across Time

October 15, 2019

– [Shannon] Thank you all for coming. I really appreciate this full house. This is amazing. This our first event of the year. There’s a couple, Beth and Steve in the
back, this is Lauren. My name is Shannon. We’re part of the Free Speech Movement Educational
Programs Committee here at the library. A little bit about what
the committee is about and then we’ll introduce
our distinguished panelists. The University Library’s FSM Cafe Educational Program
Committee’s mission is to sponsor and present
programs that are timely, informative, compelling and
that stimulate discussion on issues that matter and
that exemplify the spirit of critical engagement of
Berkeley’s Free Speech Movement. Our programs are designed to
engage and engender debate and discussion among
students, faculty, staff and visitors alike. Like yourselves. Tonight we have a great panel discussion about the Second Amendment in celebration of the
university’s commemoration of Constitution Day, which
officially is tomorrow, but we managed to rally
everyone for tonight. So, thank you all. We’ll start with our
moderator, Miss Hannah Shearer. She’s the litigation director
at Giffords Law Center. Hannah joined Giffords Law
center as a staff attorney and Second Amendment
specialist in June 2016 and is now the organization’s
litigation director. Hannah tracks and analyzes court cases involving the Second Amendment and manages Giffords Law
Center’s amicus brief program, in which their legal experts participate in crucial firearms litigation
as friends of the court. Next we have up Professor
Franklin Zimring. Franklin Zimring joined
the Berkeley Law faculty in 1985 as director of the
Earl Warren Legal Institute. He is the author and
co-author of several books, over 20 books, and most
recent titles include “The City That Became
Safe: New York’s Lessons for Urban Crime and Its
Control”, back in 2012. And most recently, “When
Police Kill” in 2017. And I’ll pass on to Lauren. – [Lauren] And next we
have Professor Brian DeLay, who is an associate
professor of history here at Berkeley, and his current work concerns guns and power in the Americas. He is writing two books. The first explains how the international
arms trade shaped the Age of Revolutions. And the second excavates the
relationship between guns, freedom and domination in the
Americas before World War II. And finally, Professor Paul Pierson is the John Gross Professor
of Political Science here at UC Berkeley. He is the author of five books on American and comparative politics,
including, mostly recently, “American Amnesia: How
the War on Government Led us to Forget What
Made America Prosper”. And now I’ll leave it to
Hannah to get this panel going. – [Hannah] Thanks so much
to the Free Speech Movement Education Programs Committee,
Shannon and Lauren. And thank you all for being
here at this important event, which comes not only on the
eve of Constitution Day, but at a moment when
our country is grieving over a series of mass shootings that took many lives this summer. So I’m very happy to be here,
to lead this discussion. And I’m thrilled to also have
our distinguished panelists. They’ll be starting off the event with some individual remarks. They’re each going to be speaking for about five to ten minutes and then we’ll have some
moderator led questions and then open up the floor
to audience questions. So to give you a preview
of the order of speakers and what they’ll be addressing, First, Professor Zimring,
on my left will open with remarks on the Supreme Court’s Second Amendment framework. And he’ll comment also on
what courts have been doing after the landmark 2008 decision, District of Columbia v
Heller, which led to a shift in Second Amendment law. And next, professor DeLay, in the center, will talk about Heller’s treatment of American history in the Founding Era, and he’ll lay out
reasons why, in his view, the best historical
scholarship actually rebuts the Supreme Court’s
interpretation of history that led it to issue it’s
Second Amendment ruling in 2008. And finally, Professor
Pierson, all the way to my left will talk about the, Will talk about the
National Rifle Association, an organization that we
know has had its fair share of recent scandals. And then he’ll be contextualizing
that organization’s role in shaping politics around gun policy and how it reflects a broader shift in the Republican Party’s
politics, more generally. So, thank you all and I’ll
turn it to Professor Zimring. – [Franklin] I understand
that my assignment is to outline the entirety
of Second Amendment jurisprudence in five to ten minutes. And the sad point is, it’s possible. (laughing) The first decade of Second
Amendment constitutional law in the United States, has two
important substantive pillars that were laid down by the court in its first decision, DC V Heller. While very important each,
in explaining all the cases that circuit courts of
appeal have been deciding, are very difficult to
harmonize with each other into a principle basis. DC v Heller was decided in 2008. McDonald v City of Chicago
was decided three years later, and extended to the states what had been in Heller a Second Amendment holding that involved the federal enclave. Now, what are those two
inconsistent principles? The first principle is that there is a personal Second Amendment
right against both federal and state governmental power for people to keep and bear firearms,
including handguns. All of this is Heller. The second principle, also
in the Heller opinion, by Justice Scalia, is that long-standing and presumably lawful
governmental restrictions on gun ownership, principally the states and often the cities as well. And on gun use, do not
violate that Heller McDonald personal right. Okay, that’s it for the
Supreme Court, until next term. There have been a wide
variety of gun control laws. What do you do when a
new constitutional right has been announced like this
in an area of intense caring like guns in America. There have been a million law cases. A wide variety of gun
control laws have been upheld as consistent with that second principle. That is to say, they have a long history and presumed legitimacy. But they’ve been upheld
by federal circuit courts of appeal, not by the Supreme Court. What the Supreme Court’s
been doing for a decade is ducking certiorari. They have now accepted one gun case. Now, some of the laws
which have been upheld are highly restrictive, in terms of who they allow
and under what circumstances, to own and to carry handguns. The most striking example,
and the only one I’m going to give us here, was the
New York Sullivan Law, which was passed in 1911, which
is what I would characterize as a restrictive handgun licensing system. There are, in the city of New
York, over 8 million people. That’s probably 5.5 million adults. There are about 20,000 handgun permits. That’s less than one for every 1,000 adults in New York. So, is that degree of restriction consistent with those two principles? Well, if I were a dedicated gun owner, I would think if I’m one of the 999, that whatever a personal
right to handgun ownership is, it doesn’t seem to include me. On the other hand, the law has been there for more than a century and would seem to be quite consistent with
what the court has so far said about the kind of legitimacy of sustained historic gun control laws that would be upheld. So far, Heller and Mcdonald have only struck down outright bans, not restrictive licensing, saying you’ll have to prove a need, but no one can own handguns. But the two branches of
that Heller analysis, just aren’t consistent themes. So what’s going to happen
is something’s going to give in this tug of war. The Supreme Court has
been closely divided, 5-4 on this before. There have now been two turnovers of judicial appointments since then. One of them, because it was a replacement for Scalia, probably
didn’t affect that 5-4. The second one was a
replacement of Kennedy, who was also in the majority,
and may have affected that. But for those of us who are interested in how much power the
states are going to have, and the cities pursuant
to state authority, all I can tell you is: Stay tuned. It’s going to be interesting. And most of the important
decisions by this court on this new right have yet to be made. – [Hannah] Thanks so much. Professor DeLay. – [Brian] Thank you all for coming. It’s wonderful to be here with
my distinguished colleagues to talk about this important question. And what I’m going to try
to do is give my perspective as a historian of the Revolutionary Era on the question of what
the founders intended when they crafted the Second Amendment. The Heller decision in 2008, a lot of complicated issues involved, but one of the most essential
issues was an interpretation of what the founders intended by the text of that amendment. I’ll just read it to you real quickly: “A well regulated militia, being necessary “to the security of a free
state, the right of the people “to keep and bear arms
shall not be infringed.” 5-4 decision, the
majority and the minority both made historic claims
about what was going on in the late 18th century
and these conversations surrounding the crafting
of the Bill of Rights and this amendment in particular. Both the majority and the
minority relied upon scholars in order to make and substantiate
those historical claims. Now, of course, not all
scholarship is created equal and it’s worth asking “What
is the best historical work “on the period and on
the topic, specifically? “What does it look like?” I should say from the outset that I am not a scholar specifically of the Second Amendment. I’m not a legal scholar. I’m not a constitutional scholar. I am very interested in
guns in Early America and so I’ve read a lot of the scholarship, but I myself do not do this work. But I’m going to try to tell
you what I think I’ve learned from this scholarship, and you
can make your own decisions about this. From my perspective,
the best historical work on the Constitutional
Era, does several things. First, it considers the
broad historical context of the late 18th century. It doesn’t only go through databases of key legal and political documents and do keyword searches, right? This is about understanding
the broad context. That’s the first thing it does. Second, it integrates
social and cultural history with the more familiar
political and legal documents. It is attentive to the range of views that Americans held about
guns around the time of the founding. And the the fourth and
final thing I think that the best scholarship does
is that it’s attentive to change over time. Individual people, their
views often changed as circumstances changed,
just as they do in our period. And the debate transformed over the course of the late 18th and early 19th century. So now, among scholars who
do all of these things, that is to say, among
scholars who understand the Founding Era best as historians, there is broad consensus
that the Heller decision got the history wrong, that
the five person majority did not accurately represent
or understand the Founding Era or the crafting of the Second Amendment. These scholars conclude that the purpose of the Second Amendment was
to ensure that citizens, now at the time that of course
would have meant white men of a particular age, that
citizens would be able to keep and bear those arms needed to meet their legal
obligation to participate in a well regulated militia. That, I think, is the historical consensus among the historians who
understand this era best. Let me try to unpack that and explain why and what I’m going to try to
do is tell you what I take to be the most salient bits of context that these experts would want you to know as you’re trying to
understand this period. My first, and most long
winded bit of context I want to share with
you is about militias. There was broad agreement
in Revolutionary America that standing armies,
that is to say armies that are maintained by
governments in peace time, represented a threat to liberty. This was true in the obvious way. That governments could direct
armies to oppress the people. And Revolutionary Americans, many of them had direct experience of this in the Revolutionary War
and the Revolutionary Era. But it was also true this fear of standing armies as inimical
to liberty was also true in a subtler, and I think,
more interesting way. And that is that, as is
the case in our own time, in the 18th century, armies
were really expensive. Armies also had a tendency
to become more expensive and more capacious over time. They were good advocates
of their own interests. And that meant that armies required states to tax significantly to
be able to afford them. And to do that, states tended to engross more and more kinds of power. The point here is that standing armies didn’t merely enable
states to use coercion against the people. Standing armies also
produced state coercion. And that was a broadly
held set of assumptions in Revolutionary Era America. So how are people supposed to
provide for the common defense if standing armies are so dangerous? Well, the answer to that,
according to many Americans at the time, was that
well regulated militia. These were compulsory military
bodies under the direction of elected representatives
of individual states. Comprised of people that,
in their normal lives, did other things than soldering. But these people would
be trained and prepared to act together in coordination
for the common defense when need be. Britain had tried to
disarm colonial militias in the early Revolutionary Era. And partly for this this reason,
once the revolution begins, and even after the revolution is over, states that craft their
own state constitutions often include clauses in
there, making it clear that the government
will not have the power to disarm militia members. That’s an important
piece of context as well. Now, the emphasis on well regulated in the amendment and in
the discourse at the time, this was deliberate and
extremely important. Militias had a mixed
record in the revolution. Often, they performed very
poorly in the revolution. And this is a problem for people that genuinely
fear standing armies. Because you have to have
some effective means of collective defense. So for those people that
most feared standing armies, and therefore were most
committed to militias, they were the ones that one most zealous about the idea that these things have to be well regulated. Because only in well regulating
them could they possibly be an adequate alternative
to standing armies. So first bit of context
that I wanted you to know, is that militias mattered a
lot to the founding generation, militarily, politically and ideology. Another bit of context,
shorter this time, I promise, is that the Second Amendment emerges out of anxieties over federalism. Really critical for us to keep that in mind when we’re thinking about it. One of the reasons that
nationalists believed that the Articles of Confederation, which was the governing
framework that prevailed during the revolution, and
immediately after the revolution. One of the reasons that
these nationalists believed that that didn’t work anymore
and it needed to be scrapped in favor of a new system
with a strong government, was precisely because
these state militias seemed to be inadequate for national defense. The New United States is
working in a hostile world. They need some kind of an
adequate military program. So these nationalists scored
a very significant victory with Article 1, Section
8 of the new constitution that they drafted, which gave the federal
government the power to call out state militias. So under this new system
they’re proposing, state governments and the
federal government are going to both have the power
to call out the militia. Very significant victory
for the nationalists. Now antifederalists,
that is to say the people who were really wary of
the new constitution, and thought that this could
end up being a terrible idea, they worried that the federal government would eventually use this authority, the authority vested in
Article 1, Section 8, to disarm the state militias. As with most other articles
in the Bill of Rights, the Second Amendment needs
to be seen as a concession from the nationalists
to the antifederalists. That’s the way of the nationalists saying, “We understand your concerns. “We don’t think they’re very legitimate, “but we’re nonetheless going
to include this article “to try to allay those concerns.” The Second Amendment
protected state militias. I think that’s indisputable. And, in fact, if you
read the Heller decision, the majority more or
less acknowledges this. The critical question is: Did it also protect the individual right to keep and bear arms,
unconnected to militias? That’s the sort of
million dollar question. And again, most of these scholars who I’m invoking here
say, “No, it did not.” Well, how do they know this? How can they be so sure? A few reasons. Partly, that’s because the
focus of debate in the press, in the Congress, at the
Constitutional Convention, at the ratifying conventions
in the several states, the overwhelming focus of the debate whenever guns were invoked was about the militia. It wasn’t about hunting. It wasn’t about self-defense. It was about the militia. That’s one reason. Partly, they don’t
believe that it was about an individual right because a minority of American political
figures and commentators in the Revolutionary Era called explicitly for the inclusion of individual
right to keep and bear arms as part of the Bill of Rights and as part of state constitutions
that were being crafted at the time. Almost always, they lost that argument. Occasionally they won,
there’s a couple of states that do actually say
this, but almost always they lose this argument. Partly, these scholars
believe it is a collective rather than an individual
right, because textual analysis makes it clear that Americans
mean military service in the overwhelming majority of cases whenever they invoke
the phrase bearing arms at the period. So that’s another bit of evidence. And partly, these historians
believe that this is about the militia and not
about an individual right, because the initial text
of the Second Amendment, the one that passes the
House of Representatives, included a contentious
objector provision tagged on at the end, making it, I
think, indisputably clear that the entire idea
was about the militia. I’ll just read it very, very quickly. This is the one that passed the House: “A well regulated militia,
composed of the body “of the people, being the
best security of a free state, “the right of the people “to keep and bear arms
shall not be infringed “but no one religiously
scrupulous of bearing arms “shall be compelled to render
military service in person.” I don’t see how you read
that and you conclude this is primarily about
protecting an individual right to keep and bear arms. So to recap: The framers
drafted the Second Amendment to ensure citizens would not be deprived of the weapons they needed to participate in well regulated government run militias. Why, then, do most Americans
today know virtually nothing about militias? And believe, popular
opinion, even before Heller, most Americans believe
that the Second Amendment protects an individual
right to keep and bear arms. And why did five of our very
learned Supreme Court Justices overturn more than a century of precedent and declare that the amendment
protects individual rights? This is what my distinguished
colleague is going to be talking about. (laughing) – [Paul] Thank you. Thank you all for coming to
talk about this very timely, very important subject. And I want to zoom out a
little bit from the courthouse to think about the role that
the Second Amendment plays. The Second Amendment, broadly understood, plays in our politics. And I want to do that for three reasons. The first is because I’m not
a scholar of the Constitution, so I’d be in trouble if
I tried to parse Heller or the original, the
origins of the amendment. But the second reason is
because I actually think the biggest constraints on gun regulation in the US are not in the courthouses. They’re in legislatures, and especially the national legislature. That doesn’t mean the Second
Amendment is not relevant, and of course, the
Supreme Court in the days to come might make the
court even more relevant, but a lot of things,
that at least currently, seem like they’d be
constitutional under Heller, have no chance of passing in Congress. So we need to think about the
Second Amendment more broadly. The role that it plays in our discourse, the role that it’s played in
fights in American politics, that prevent or dictate
the course of what happens to legislation about guns. And the third reason, I think, to do this is because I
actually think what’s going on with gun issues, Second Amendment rights in American politics, is emblematic of the broader moment
that we find ourselves in in American politics. So thinking a little bit about
what I want to talk about, which is the role the
National Rifle Association, I think actually relates to a lot of things that are going on,
particularly in the politics of the contemporary Republican Party and the way that influences
what’s happening out there. One thing that I think a
lot of people puzzle about, especially if they know enough
about the Heller decision to recognize that it
doesn’t completely limit the possibility of gun regulation is: Why doesn’t common sense
gun regulation happen, given what you see in
public opinion polls? So now, certainly,
universal background checks, over 90% support if you
ask people about it. They have overwhelming support,
even among Republicans. If you just ask people,
“Do you favor that?”, people say, “Yes”. This actually comes up in
a lot of the work that I do on American politics now. When I was being trained
in graduate school, I was trained to think public
opinion is pretty powerful. What the median voter, or
the average voter wants is pretty powerful in politics. If something polls at 90%,
you would expect it to happen. So what’s going on? I think the National Rifle
Association is a good way to think a little bit
about what is happening and what is not happening. And some people, when
they think about the NRA, they think, “Well, it’s money.” The NRA pours a lot of
money into politics, and money talks. The golden rule of politics
is he who has the gold rules. So that explains what’s going on. And I think, pretty clearly,
that is not the case. Until pretty recently, the NRA was not a
particularly serious player in the political money game. I would say since 2014 or so, it has become a more significant player, but it’s still not, it’s not an 800 pound gorilla by any stretch of the imagination. There are bigger players around. And the amount of money
that it’s throwing around in elections is not enough to explain the kind of leverage that it seems
to have over politicians and their reluctance to
buck the NRA in any way. I don’t think it’s that. I think, actually pretty
clearly, what it is is that the NRA can mobilize people. The NRA is very good at getting people out and convincing them to reward or punish
particular politicians based on their stance on the issues
that the NRA cares about. And that reflects less the
amount of money the NRA has, that’s actually more kind of a consequence of its power than it is a cause. It’s because it has really
deep roots in the society of people who own guns
in the United States. And that’s grown over time. It’s actually unclear
exactly how many members of the NRA there are, but it’s somewhere between
three and five million people, and that’s a lot of people
if they’re really committed. Every year a lot of people,
even if they aren’t NRA members, every year 750,000 people get gun training in the US under the auspices of the NRA. So the NRA, the face of the
NRA, that many people encounter, is a face that see in
a very positive light. As one that’s supporting
things that they care about. And of course the NRA, including
at these training sessions, is good at trying to
inculcate certain messages about what folks ought to care
about if they’re gun owners. So they have very deep roots. They also have an
apparatus that’s designed to turn the dial up to 11 on these issues. Or maybe 11 doesn’t quite cover
it, they turn it up to 15. When political scientists
study groups like the NRA, NRA is actually I think somewhere
between an interest group, an organized interest
and a social movement. It has elements of both. Political scientists will
say, “What do these groups, “what are they about? “What do they care about the most?” And you might think they care about a particular issue than most. And what, at least, most
political scientists would say is, “Well, actually, the ones
that are really powerful, “that stick around, “what they care about most is
organizational maintenance.” Maintaining the organization. Generating resources for the organization and keeping it going. Because even if you care
about a bunch of other stuff, if you don’t sustain the
resources of the organization, then you don’t get to do the other stuff. So the key to power, especially
kind of durable power, for these organization is
maintaining the organization. And what maintains an
organization like this is making people feel like the stakes are really, really high and that they’re constantly under threat. So even though it has
been many, many years since there has been anything,
you really have to go back to the 70s, I think, to talk about seriously
intrusive gun regulation. It’s been a long time. But the NRA is very, very
good at convincing people. And in this way, it’s very
like a lot of what happens now in conservative media, like Fox News. It’s a lot of what happens in
evangelical circles, as well, where the idea is your way of life, and I really think this is playing out in many, many levels in American politics. People hear messages that they
find very, very frightening. That their way of life,
things that they really value, are under threat. And the NRA is an enormously
successful operator in terms of organizational maintenance. So that makes the NRA super powerful in Republican politics. And I think another element that needs to be recognized here is that for most, we can go into this more
in the discussion period if people want to, but
for most politicians in Congress, most of them
are in pretty safe seats. At least with respect to the other party. The biggest threat to
them, most of the time, is going to be a challenge
from their own party. So that makes Republican voters and Republican primary
voters a key constituency. And being on the wrong side of the NRA is close to a death sentence
for any Republican politician in the House or the Senate. So the power that they have
with Republican politicians gives them enormous leverage. And in some Democratic
seats, though a lot fewer than used to be the
case, they have leverage. They have these intense
voters who they can get out and who they can effectively signal, they have credibility with
those voters to signal, “Who are your friends? “Who are your enemies? “Who do we need to get rid of?” And voters respond to that, and politicians are aware of
that so they respond to it. Last point, and then I’ll stop. Come circle back to these
polls that do, I think, pretty consistently show,
not just in the wake of El Paso, though it’s
gotten stronger in the wake of El Paso, but pretty consistent finding for a long time. Most people think
universal background checks would be a good thing. They support it. But, two things to say about
a poll question like that. One is, it’s not just
people’s preferences, voter’s preferences that matter, it’s how intensely they
hold those preferences. And in this case, it remains the case, the intensity is all on the
side of people who are fearful of gun regulation, who see it as a threat. They vote on these issues. They’ll turn out in a primary
and vote on these issues. And as of yet, we don’t
just have much evidence that that is true on the other side. That may be changing, but we
don’t have much sign of it. And so the fact that X% of the people take such a position does not mean all that much in politics unless it’s something that is actually going to
affect their political behavior. But then the other thing
to say about the polls is: Even if we do want to focus on the polls, it’s important not to just
cherry pick the questions and think that you can draw conclusions about where public opinion is based on a particular question. And here’s a question that I think is actually much more
revealing than the question about whether or not people favor universal background checks. For a long time, pollsters have asked
the following question: “Which do you think is more important? “Effective gun regulation
or protecting gun rights?” Effective gun regulation
or protecting gun rights? So since 2000, if you’re
a Democrat, about 75% of you are going to say
effective gun regulation is more important than
protecting gun rights. In 2000, the majority of
Republicans agreed with that. It was closer to 50-50, but more Republicans said
effective gun regulation was more important than
protecting gun rights. Now, 80% of Republicans say
that protecting gun rights is more important than
effective gun regulation. And that’s not all because of the NRA and what they’ve turned the meaning of the Second Amendment into, but the NRA has been a very
important force for that. And so the more important implication is, the fact that when you ask people whether they favor background checks, they tell you that they do, does not really tell you what
they think about the issue of guns. It’s been polled into, and the NRA has been an important force in doing this, it’s been polled into our increasingly polarized
and tribal politics, in which people
characterize as us vs them. And through the NRA,
gun rights has been one of the important legs of the
stool that supports tribalism on the conservative side
that says “The other side, “you might, in principle,
think that background checks “were a good idea, but
the people who are trying “to do this are not going to stop there. “They won’t stop until
they’ve taken your guns away “from you.” Gun rights, protecting gun
rights is more important than effective regulation. So that is a big political reality and is part of the reason
why, I think, independent of what the Supreme Court decides the Second Amendment means,
as important as that is, the politics of guns goes really deep and is now organized
around these tribal lines. I mentioned, when I was
discussing with Hannah, the event tonight, I said we can also talk about the recent scandals around the NRA, part of organizational maintenance, it turns out, is you get
to buy a lot of fancy suits in Beverly Hills and go to
classy hotels in Europe, and that’s now becoming an
issue and we can talk about this if people want to. I’ll just say: I actually
don’t think that even if the NRA ends up imploding
as an organization, that it’s going to have
that big an effect. Because there will be other
groups that are willing to pick up the mantle and the
toothpaste is out of the tube, or the genie is out of the bottle, whatever metaphor you want to use for it. Once these views about
guns and their roles in American society, Charlton Heston’s idea
that the Second Amendment is the first freedom, that’s
the way Charlton Heston put it. The Second Amendment is the first freedom. That genie is out of the bottle. And we’ve seen with the evangelicals, the organizations come and go, once the anti-abortion movement got going, actually you could have all
sorts of organizations implode in scandal, but once these kinds of ideas had been well developed
within an important part of the American polity, it’s really hard to get rid of them. – [Hannah] Thank you, Professor Pierson. I want to leave enough time
for audience questions, but for now I’ll ask the panel a question about the Supreme Court case that Professor Zimring mentioned. I think it’ll connect
the dots a little bit between the legal and historical and political perspectives that our three panelists laid out. So as was mentioned, the US Supreme Court has taken a new Second Amendment
case for the first time in about 10 years, and this is big news, and I think it’s big news for two reasons. One is, because as
Professor Zimring described, the prior rulings that
they made were very narrow, and so the most important
Second Amendment decisions are yet to come because under the court’s previous
rulings, they left a lot of gun regulation avenues open. They talked about presumptively
lawful regulations and the court said its
ruling was not intended to disturb a lot of
existing gun regulations. And the second reason
is that we have a new conservative majority on the court. So justices like Justice
Kavanaugh and Justice Gorsuch and definitely Justice Thomas as well, have been clearly signaling
that they’re ready to expand the court’s prior rulings on the Second Amendment
and maybe chip away at the limiting language
that was announced in that decision and brought in the right. So one possible check on the
court that might reign them in from issuing a really broad
Second Amendment decision is this idea of the court’s
institutional legitimacy, the idea that its legitimacy
could be undermined if it takes dramatic action on guns at a time when passions are really high and large scale mass
shootings are attracting the public’s attention
and killing more people. And as Professor Pierson’s talked about, polls are showing that support for gun regulations is very high. I’d like to get the
group’s views on whether and how public opinion
might make a difference both in the Supreme Court case, a future case, or just in the overall landscape. Is there any way that supporters of gun regulations can
kind of turn the dial up as the NRA does and really keep
attention on the importance of stronger gun regulations? – [Franklin] In the first
instance, this becomes in personam politics. If you want to talk about
institutional survivalists on the Supreme Court who are otherwise nominally conservatives, you are talking about
Chief Justice Roberts, and maybe he can drag Kennedy. But Roberts, in the Obamacare issue, did very significantly move in exactly that direction, and part of that was
institutional ambitions for the court. Because, after all, it
is the Roberts Court as far as he’s concerned, and part of that may be on the merits. The part that is on the
institutional provence of the courts, the other
thing that’s true of Roberts, is that he’s a very strong lawyer, and he’s a talented judge. That isn’t going to affect his influence on Gorsuch. I think Gorsuch’s mother had more impact on Gorsuch than anybody else. That could affect Kavanaugh, particularly if he has
ambitions to succeed Roberts as a Chief Justice of the Supreme Court. There are a lot of people you don’t want to talk to when you’re talking about that institutional legitimacy. Justice Thomas, hopeless. So, if you’re counting to five, pretty soon you’re counting
to one on that theme. – [Hannah] Professor DeLay
and Professor Pierson, do you have thoughts
on this issue and maybe with respect to the
Heller decision from 2008, did that decision galvanize voters, or did it have an impact on, did it inspire more historical research to kind of push back
on some of the missteps that you described in the Heller opinion? Because it seems to me that that could be, looking at the Heller
decision could tell us what might happen with a future Supreme
Court decision as well. – [Brian] I would just say that definitely the Heller decision inspired
a lot of historical research, for sure, into precisely
the question of the founding and the intention behind
the Second Amendment. But it seems to me that one thing to keep in mind with these looming cases and the potential for
really dramatic change, is that, again, Heller didn’t
really change all that much on the ground. But it’s not hard to imagine a future case
that makes it impossible, for example, for California
or cities in California to forbid open carry. I think if that happens, then political dynamics could shift. When communities feel
as if the settled will of the majority in their
communities are being overridden by an activist court on these cases, and basically refusing to
allow states and localities to govern themselves on
these important questions, then I think that you could see a shift in this balance of political intensity and that could change the dynamic. – [Paul] It’s a great question. I do think Roberts is a key person, at least as long as court’s
composition stays the same as it is right now, which
of course could change. But at the moment, he’s the swing justice on most of these issues
and he does care, I think, about the court’s reputation. So both on the Affordable Care Act case, and there was a report in the
last few days that came out from Roberts’ biographer, that he also, on the Census Bureau case, had initially in private chambers,
taken the position along with the other four conservative justices and then switched to a more mixed position at the end, just like he
did in the health care case, which is interesting. It’s kind of like when people used to try to read The Politburo, because there’s just not
that much information that’s public about him. I see Roberts as a very smart politician who actually has an extremely conservative and ambitious agenda,
but also recognizes that if the court gets too far
out in front of his skis on a high profile issue,
that can be a problem. I think you’re right. I don’t think Heller
caused him any problems as far as I can see. And actually, played a really good role in helping to reinforce a lot of the momentum that existed on the right with respect to gun rights. But the mood around gun
issues is different. It does seem like it’s changing, so I could imagine that being
a consideration for him. And, of course, if you are a
savvy, long term politician who’s trying to advance
on a bunch of fronts, there are often a lot of ways that you can gradually get
to where you want to go. It’s often not the best
play on a high-profile issue to go for all of it in one stroke. There are often ways to
get where you want to go. I think the voting rights case
I think is a great example of this where, effectively, they gutted the Voting Rights Act. But they did it in such a way that it seemed like what they were doing was pretty technical and
Congress could fix it. But of course Congress
wasn’t going to fix it. So they effectively put
the Voting Rights Act out of business, but they did so in a way, at least the preclearance part of it. But they did so in such a way that produced a less dramatic decision than they might have. – [Franklin] I wanted to say one thing. If the target is John Roberts, then the question is: What kind of theme would he be most sensitive to? And the key word there is elites. He’s not going to count votes, but what he is interested
in is the higher end of the intellectual, social, economic and political structure of American opinion. So that something like the
corporate president’s ads of this week, if you were
aiming for a Roberts impact, that would be a sort of a priority path. – [Hannah] That’s a great point, and the business community
has really galvanized in recent weeks, been galvanized by mass
shootings and a lot of them have been supporting gun violence prevention policies. Wal-Mart agreed to stop
selling certain types of ammunition at stores
and prohibit open carry. So that kind of thing certainly
could make a difference with somebody like Jutice Roberts. And I think what Professor
Pierson was saying makes a lot of sense too, about the tendency
to take incremental steps on an issue like this. And actually, I think the District of Columbia v Heller decision is a good example of that as well. At the time that the court
said it’s unconstitutional to ban handguns, only two
jurisdictions banned handguns; it was Washington, DC and Chicago. So they chose the most extreme law to announce this sweeping
Second Amendment ruling. So I have more questions,
but I definitely want to make sure that we have
time for audience questions. So let’s start and we can
pass the microphone around to anyone who has questions
for our panelists. (shuffling and footsteps) Thank you. – [Audience Member] Something
which is not discussed and I think is very
important, is the lead levels in the blood of these shooters. I’m very curious to see
what that actually is. I suspect that a great
deal of what happens with the gun shootings is
that people are lead poisoned. They got a little tippy
toppy and a little crazy, and then they start shooting. So one of the things we
need to do is get rid of the lead out of the bullets. If you take a look at what happens when a gun fires off a
round, you get this big cloud of dust coming out of it. A lot of that’s gunpowder, but
quite a lot of that is lead. And that amount of lead,
if you do it indoors, is like a $10,000 fine. So the other thing you
have to do is you have to actually change the way that they, you have to bring back Black Box Voting in Congress and in
Senate, because right now whatever law a rich person wants to get passed, gets passed. Whatever law that we,
as the average person, wants to get passed, has
about the same amount of chance of getting passed or not passed, the vote just under 50%. And that’s basically the
main change we need to make. Back in 1973, and you can see the effect of lobbying increasing over
decade over decade since then. If you had the choice of
having a Black Box Vote, so no one could actually
determine how you voted, you can then take a no vote without being actually responsible
for taking the no vote. Particularly if you’ve
been paid to say yes. (shuffling and footsteps) – [Audience Member] One issue that has been brought up historically, but I hadn’t been hearing
anybody mention tonight, is the question of the attitude towards the Second Amendment in terms of the militias being seen
as defenders of slave power in case the federal government in the future was not going to be able to be relied on to do that. That’s one thing I’d like
to hear a comment on. More generally, I think, it seems to me that extreme defensive gun ownership is very much tied in with
white supremacy here. And I don’t have an analysis, exactly, of what’s going on there. And another point, somewhat related, is the question of background checks. People talk about background checks, but they leave out the fact that there’s very different kinds of background checks, some of which are, on the one hand you can
have background checks against people for their
history of violence. On the other hand, you can have, what some of the fake left supporting, the exclusion of people on
the terrorist watch list. Which is a totally, actually finally ruled by a court to be totally illegitimate. So I’d like comments on those. (shuffling and whispering) – [Hannah] Brian, do you have a response to the point about militias? – [Brian] Yeah, it’s
true that there was a lot of anxiety in the
Constitutional Convention about whether and under what circumstances the new government might
be able to interfere with slavery. And, this is a line of, two things are true, I
think, at the same time. One is that you absolutely
cannot understand gun violence in the United States and our gun politics in the United States without accounting for white supremacy. The Republican Party and the Republican Congressional Caucus is something like 93% white. And yet, gun violence massively
disproportionately afflicts people of color. So a black child in
this country is 10 times more likely to lose their
life to gun violence than a white or an Asian child. And there’s a million metrics like that, so I think it is indisputably
true that white supremacy has to be part of the analysis of
understanding the predicament that we find ourselves in
in this country with guns. But it’s also true that,
I think it’s too easy to take that reality and then port it back to the late 18th century. Because, frankly, I don’t think most of those southern delegates to the Constitutional Convention
really were that worried about the possibility that white supremacy could be systematically disrupted or they would lose their ability to hold human beings as property. So I think that can be overdone. It’s also true that militias, one way to gauge the seriousness with which states held the militia project is how many guns they had. And the northern militias
were vastly better armed than the southern militias. So I don’t actually think
that the militias figure into anxieties over slavery
all that prominently. – [Hannah] Thank you. I also think there’s different patterns of regional regulation with firearms, and some of it cuts the other way. I think, with regulations on
the public carry of firearms in the post Civil War period, northern states had
much tighter regulations and then states that
had many freed slaves, politicians supported
relaxing those regulations and really pushing this
idea of self-defense by wealthy whites. So there’s other patterns like that, and it complicates the story a little bit. I know you also talked
about background checks and the idea that there’s different levels of background checks. I think it’s significant that when we talk about the polls showing that 90% of people support gun background checks, that’s really talking about
just closing a loophole in federal law that
enables people to buy a gun without a background
check in a private sale. And the definition of
what’s a private sale, it means that a lot of people can fall into that loophole. And so, I think it goes to what Professor Pierson
was talking about. That it’s really shocking
at some level that 90% of people support this
really basic policy, but it still doesn’t go anywhere. I think we are a long way politically from anything more than that. (shuffling and whispering) – [Audience Member]
Hi, I’ve really enjoyed the discussion so far. I have a question about
changes in technology. States can pass all
sorts of gun regulations, like licensing, registration
and Sullivan’s bans, but they’re only good
if they can be enforced. How should legislatures
respond to advancements in technology, like the development of so-called ghost guns, the advancements in 3-D printing technology
that allows people to 3-D print AR-15s and pistols at home. Thank you. (shuffling) – [Hannah] I think you
already have a microphone. You can go for it or (mumbles). – [Franklin] First of all, I want to tell a terrible
technology story on myself. And that is: I want to disagree with one thing that you said about the Heller majority opinion. And that was that the
inclusion of handguns was based on a historical claim. It wasn’t, and the reason
it wasn’t had to do with the difference
between what was published at the time that the circuit court of DC had extended a right
to bear arms in Heller, and that was based on
handguns being in 1794, according to the judge
writing the opinion, an important part of armament in militias. I ran out immediately
and published an article with pictures of what he was talking about as a handgun. Mae West would certainly
have appreciated it. It was about 15 inches
long, and not concealable, and very obviously what the
1911 Sullivan Act was about. Well that’s fine. So you win that point. And the point is what when you then get to the majority opinion in Heller, what Justice Scalia says
is, “And we include guns “because citizens want guns.” Full stop. So, that’s there. Lots of the technology stuff
would be very important if we had more effective restrictions, they’d be a wonderful way to beat them. But we have about 125,000,000
handguns in circulation now. So the fact that what
you can do with computers is increasingly likely to be
making pretty good weapons, is only going to become important when there’s genuine
scarcity on the other kinds of environments. It is always possible
for sophisticated people to cheat on any kinds
of technical frameworks. So if you take the Las
Vegas shooter, for a moment. And you were asking what kind of widely supported legislation would have limited his
capacity to inflict damage in that shooting. I don’t know of anything that would have. On the other hand, if
you take almost any other of the shooters, the wonderful thing, or the less horrible thing,
about most mass shooting is that, so far, it has
been very substantially an amateur operation. Very unskilled and very self-destructive. So that if our only
danger were technologists, we’d be living in a much safer country. (shuffling and whispering) (whispering) – [Audience Member] Hi, I was wondering if you thought that, with the rise of students, like the March for Our Lives
and other, similar things of student activism for gun regulation, if that’s actually impacting
Congress and the beliefs of the congressmen as well as the court. – [Paul] It’s too soon to tell. Again, what’s going to
have to be demonstrated is the people are going to
vote, are going to vote based on this, at a minimum. I wanted to just say
something about this issue about money and politics before,
because I very much believe that the growth of economic
inequality and the way that that has produced enormous
increases in the inequality of political money has had a
huge affect on our politics. I don’t think you see that directly in the politics around guns. I think you see it indirectly, because I’m actually working
on a book with Jacob Hacker about this in which we argue that the Republican Party’s alliance with the super wealthy
and big corporations has basically forced the party to make more and more
aggressive, intensive, non-economic appeals in order to hold its political coalition together. So I think inequality plays in that way. But it’s clear that there’s a
social movement on the right around gun rights, and
it’s mostly not about money and has been very, very effective because it actually delivers votes,
with respect to this issue. And so the public mood
seems to have changed but we don’t yet know that
that works the other way. And it could actually work
through two different channels and I think both of them are plausible. One is, it can work
through suburban whites. And, in particular, suburban white women and non-college-educated
women who have been voting for the Republican Party
but now, in part because of gun issues, are having their doubts. And the other place it
could potentially show up would be through youth turnout. If every age group in
the United States voted at the same rates, our politics
would be unrecognizable. But there are a lot of
people who click likes but who don’t vote. So that would have to be the channel. So either, I think through
white suburban women, in particular, which is a constituency that Republicans were in
a really strong position with pre-Trump, but it’s clearly shaky, you saw in the 2018 election. Or with younger voters, if
they actually turn out and vote and if guns becomes
and issue that is going to bring them out to vote,
that would have a big effect. – [Audience Member] I
have a related question about guns in schools. I’ve read an estimate that there may be
200,000 American students who have been present
during a school shooting. It’s clear it’s had a horrific impact on the kids in schools today, they call themselves
The Lockdown Generation and there’s ample evidence
that it’s contributed to significant depression among kids, as they think about their
schools as unsafe places. So I’m wondering what you might suggest from a legislative, a
legal policy point of view that could be done to
help ensure the safety of our kids in our schools. There’s 60,000,000 Americans every day in K-12 schools, students and employees. So it’s a huge constituency. – [Franklin] From the
standpoint of safety, instead of a feeling of security, my instinct in terms of school
security is less is more. That the more focused
on attempts to respond to this extremely low frequency event, that is not only low
frequency, but very difficult to respond to in an effective way, except by outside folks. The costs probably greatly
outweigh the benefits. What we did during the last two panics in American schools, the first
panic was on youth homicide from about 1986 through about 1994, and that was: Put cops in schools. There’s no evidence that
it made schools safer. There is evidence that
it made them governable in different ways that I
think were problematic. Then came a whole mini
epidemic of school shootings, that in terms of numbers, but most of these were kids bringing guns. It started about 1996 and culminated with Columbine in 1999. That had a fabulous impact, negatively, on making school safety a worry, mostly for adults rather than kids. It abated simply when
school shootings went down, and those were the school shootings, that wasn’t the sort of
situation that happened in Sandy Hook. And what we’re now talking about
as school shooting threats, are very different than the
kids being the shooters. They are essentially invasions. And again, if there is anything that really makes schools safer there, other than communication
to outside responses, I don’t know what it is. And it is such a low-level event, that it would be fabulously expensive. Not only expensive in terms of public money being invested, but also in terms of the authority of teachers and school administrators to control school policy instead of a security apparatus
making its own rules. So unless things get horribly worse, I just couldn’t be
enthusiastic about steps towards making schools
deliberate security environments. (shuffling) – [Audience Member] Thank you so much for the great discussion tonight. I had a question. I have heard a lot of discussion on various school shootings and issues about gun regulation, but I haven’t heard much about this argument that many people make that the need for a gun is necessary in order to defend one’s family or for personal protection. And I’m just wondering,
we’ve heard statements from the NRA saying that the
only way to stop a bad guy with a gun is a good guy with a gun. And I’m wondering is it
possible at this point in time, with so many guns in circulation, for there to be effective gun control. That perhaps even with
measures as far as we can go, there’s still ways that entities or people can access those guns
and cause harm to others. Thanks. – [Franklin] Well, there are
two separate questions there. One of them is: Is there any density of gun ownership by any defined class of people that makes a state or a city or a community safer? And we haven’t found any. And there’s been a lot
of research on that. And generally, what happens
is that the death rate from assault goes up with gun density and
gun ownership density. It’s not the only feature there. That said, when you have
something on the order of 280,000,000 guns out there already, is there any way that you
can affect gun availability for people that want to misuse them? A litte bit, yes. And, indeed, we’ve been living
through a miraculous time in the United States. Because, as particularly during
the Obama administration, handgun purchases and gun
ownership rates kept going up. The homicide rate stayed extremely low and, if anything, got a little bit lower. What happened to this
notion of gun availability and gun use in violence then? What happened was very interesting. And that is that there
were two different trends in gun ownership in the United
States that were taking place at the same time. The number of guns out there
was increasing tremendously and the percentage of households that owned guns was
dropping significantly. And it turns out that if
what you’re worried about is the use of guns in
interpersonal violence, it’s the first gun in your house, not the 12th, that is going
to be the risk determiner. Partly this has been
because of in the increase in female-headed households. And gender is a phenomenal
predictor on gun ownership. But partly what it has
been is that the people who are gun owners respond particularly to those kinds of fears by
creating huge stockpiles. Now the great thing from a
criminological perspective about that, was that these
were mostly older white males, and they have very low
interpersonal violence rates. With the exception, by the way, of mass shootings, we’re finding out. And that’s been something of a problem. But as bad as things have
been in the United States, if gun ownership as a
proportional population impact had kept up with the density of guns out in society, we’d be in much worse shape. (shuffling) – [Hannah] I just wanted
to ask a related question of Professor DeLay and Professor Pierson, which is that this notion that
only guns can keep you safe is a National Rifle
Association talking point, but it’s actually evolved over time. So, I think, certainly decades ago, in the middle of the last century, maybe as late as the 70s or 80s, the NRA didn’t support the idea that everybody should carry
a concealed gun in public. The NRA president supported restrictions on public concealed carry. And now it’s a different story. They support concealed
carry with no permit at all, no background check, no qualifications. And so, they’ve really
evolved their stance on the idea that only
guns can keep you safe in public spaces. So I was wondering if Professor
DeLay or Professor Pierson could talk about how the
NRA has used that view and how it’s maybe played
into the interpretation of the Second Amendment
that they’ve supported or how they’ve affected American politics with that idea. – [Brian] I’ll just say something
that actually piggybacks on something that you said a
moment ago about NRA training. So, one of the things that I think people that aren’t part of the
NRA often don’t realize is this degree to which the NRA manages to insert itself in American gun culture whether gun owners want to
associate with the NRA or not. So there a lot of, for
example, shooting ranges around the country where
one must be an NRA member in order to use those facilities. That’s one example. We had a remarkable PhD student in sociology here, Jennifer Carlson, who is now a professor and has written a really
phenomenal book about the culture of NRA political activity and the culture of concealed carry in Michigan. Right, in Michigan? And so one of the remarkable
things that Jennifer did when she was doing her research
is that she got certified to perform NRA training for people that were
seeking these licenses. And something like 10 or 15% of the time and the energy that’s spent in those NRA structured
programs has anything to do with the mechanics of actually shooting a gun,
caring for a gun, gun safety. Something like 85% of it was
ideological, about you have to be prepared to defend your
family and your community. You have to be prepared to kill someone. You are going to be the thing, the person that’s going to
stand between your community and unthinkable violence
and criminal behavior. So I think that partly, the struggle is wrapping our minds around the phenomenal success
that the NRA has enjoyed over the past generation or more in transforming what,
as late as the 1970s, was basically like a
sporting rights organization that occasionally got
involved in political activity into something that is
just so multi-faceted and hugely influential, far beyond the political
donations that it makes. – [Paul] If anybody’s
seen American Sniper, which I regret that I did, there’s a scene where
he’s, I think, talking to his kids and he’s talking
about how there are sheep and there are wolves
and there are sheepdogs. And the thing to be, you
don’t want to be a sheep. And you shouldn’t be
wolf because that’s bad. You should be a sheepdog, which means that you
gotta protect the sheep. And that is, Jennifer talks in her book, about that is being the kind of culture of guns that’s being inculcated. And it is a huge shift. This was a sporting organization. There’s actually a fascinating story about there was essentially
a war within the NRA in the mid 1970s. They were getting ready
to move their headquarters to Colorado just to reinforce the idea that this was a sportman’s, well they would have said
sportsman I’m sure, organization. It was about hunting and marksmanship. And there was essentially, it was kind of Game of
Thrones kind of month at the NRA and the people
who had made this plan got overthrown by a group
who were much more political and turned it into this
political organization. And then it shifts from
being about hunting, and you can see this in public
opinion surveys over time, that people start to get
more it’s a rationalization that it’s about protecting their family. It’s about crime. Even though the crime rate
is falling when the shift in public opinion is taking place. And, more recently, and I think actually even more alarmingly, there’s a shift to the idea that it’s about protecting yourself from the government. Because they’re going to
come and they’re going to take your gun away. And you can see this in a lot of the rhetoric that’s going on. But all of this is of a
piece with a lot of things, that’s why I said the issues that we see with guns are related to a lot
of things that are going on in American politics more broadly, where there is the mobilization of fear and the mobilization of a sense of threat. It’s very connected to race. It’s very connected to the
huge demographic transition that the US is undergoing right now. And there’s a lot of ugly history, both in the US and other
countries about what can happen to the politics of a
country when these kinds of demographic transitions
are taking place and when people see an upside in mobilizing people to be fearful about it. – [Brian] Can I just
add one very quick thing we haven’t talked about? And that’s business. This is in addition to being a deeply felt political
commitment and a culture, it’s also a business. And the only a good guy with
a gun can stop a bad guy with a gun tag line, that was the product of an ad agency, of an
incredibly potent ad agency that’s worked with the
NRA for a very long time and now it’s having a very
messy divorce with the NRA. But those people came up with that, not for some deep-seated love of liberty, but because they’re a paid ad agency. And the gun makers in this
country profit handsomely through the inculcation of this idea that you’d better get them while you can. The government’s coming for your guns. You can see this in the elections. The best thing that can possibly happen to the arms industry
in the United States is to have a Democratic Congress
and a Democratic president. It just goes off the charts. And as soon as Trump was, everyone in the arms industry, they also expected Hillary Clinton to win, and they were gearing
up for more boom times. And it was just an absolute
bloodbath as soon as Trump won because all of a sudden,
the main commercial driver for the massive expansion of the number of guns in this country collapsed. So business plays a really important role in this whole thing, too. (shuffling) – [Audience Member]
Leaving aside the history of the Second Amendment, what do you think the
practical determinates of the debate of gun rights,
or lack there of, should be? In other words, besides
the Second Amendment, why should or should we
not have the right to individual gun ownership? Furthermore, if there
are to be restrictions on private gun ownership, how should we determine
their limits and methods of enforcement? (shuffling) – [Franklin] It turns
out that the major focus for dividing policy between restrictive and permissive ownership
frames, is what kind of gun we’re talking about. Putting aside for a moment the AR-15, nobody has ever attempted,
in an American context, nor would they, the restrictive
control of long guns. About half of all American
households own rifles or shotguns. That’s more in the country
than in the cities. And it would be unthinkable to even attempt restrictions there. It also turns out to be very important if what you’re worried about
is interpersonal violence, and particularly crime, that handguns, because they are concealable
and because they can come with you and not announce
that you have them, are the overwhelming crime
guns in the United States. The overwhelming threat
to police officers, where 97.5% of all assaults against police officers
that kill are guns. And the vast majority of
those are concealed weapons because the officer
doesn’t know it’s coming. So it’s a kind of gun policy, and that means that the question
as broadly as you asked it has never been important and
probably won’t be important in the United States at any time. The question is whether
higher risk weapons can be selectively made scarce. That’s getting tougher
and tougher as well, not only for political
reasons, but because of the population of
guns that are out there. That’s probably not hopeless, but that’s a long-range proposal. The other is just off the charts. And there are advanced developed countries in the world of 2019 where shotguns and rifles are
fairly restrictively governed. Australia is heading in that direction. Canada isn’t. I’d be much more interested in whether we could catch up with the Canadians than
whether we’d ever pass them as a country. And that isn’t even an issue of the NRA. That’s an issue of the character of American government and society. And in a plural environment
that we probably want to encourage. – [Hannah] Thank you. I think that’s a great
question to close on and we’re up at our time of 7:30, so thank you all so much for being here and thanks very much to our panelists. (applause) (upbeat music)

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