The Second Amendment: A Biography
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The Second Amendment: A Biography

February 22, 2020


>>From the Library of
Congress, in Washington, DC.>>John Cole: Well,
good afternoon. Welcome to the Library
of Congress. I’m John Cole. I’m the director of the
Center for the Book, which is the reading and
literacy promotion arm of the Library, and
I’m very pleased that you can join us today
for a Center for the Book, Books and Beyond talk and help
us together think about a topic that really hasn’t
been discussed much in the 18-year history of
our Books and Beyond talks. The topic, of course, is the
debate over guns in America, but ah-hah, there really is a
connection because this is going to be a historical talk that
gives us a context that will be, a historical context that
will be familiar to a lot of the people who’ve been
to these talks in the past. And the context is the second
amendment and of course, what in the world is The Second
Amendment really all about, and that’s going to be our
discussion, and it’s going to be the lively part of I
think the historical argument that Michael Waldman
is going to give us. He really has written
a very lively book about the most controversial,
volatile, and misunderstood provision
of the Bill of Rights. The Center for the
Book, I was explaining to Michael before we started, was created by another lawyer
whose name is Daniel Borsten, who was a Librarian of
Congress in 1975 to 1987, and Dan deliberately
created the center to reach out to the American public
to stimulate public interest in books, reading,
literacy and libraries. As I mentioned, Dr. Borsten
was a lawyer before he became a historian and let alone
before he became a librarian. His first book, The
Mysterious Science of the Law, was published by the Harvard
University Press in 1942, and wouldn’t you know it,
the mysterious relationship of the law to the society within which we exist
now is a major theme of Michael Waldman’s
well received book that he’s going to
tell us about. I wanted to say one word
about another activity in which the Center for the
book is deeply involved, which is the National
Book Festival. We have been fortunate enough
to be working very closely with the Library of Congress
in the author programming of the National Book Festival. It was brought to the
Library of Congress in 2001 by First Lady Laura Bush, and she had previously created
the Texas Book Festival. The Center for the Book
has stimulated the creation of a network of state centers. Each state now has a center,
and while we can’t pay for them, we can help them raise money
and find a home for a place in the state that
stimulates the public interest in reading and writers. Many of the state centers work
very closely with the writers of the states and develop
things like literary maps and do programming and give book
awards and are also involved in state book festivals, and that’s how Mrs. Bush was
involved as First Lady of Texas. She created the Texas Book
Festival for the benefit of the public libraries
of Texas. And when her husband was elected
President in 2000, she announced to the world and to the Library
of Congress that she wanted to go national with this idea
and that she wanted the Library of Congress to be the partner. And we have been subsequently
the very proud partner for a number of book festivals which have been held
on the mall. This year is different. This year we will be having the
first National Book Festival at the Washington Convention
Center, and it will be on August the 30th, which I know
we know is Labor Day, Saturday. The reason is that the
National Park Service is setting up new sets of rules for the
use of the mall, and the size and the complexity
of the book festival at this time really has forced
us to make another choice, but we’re looking forward to another wonderful
national book festival, and I want to assure each
of you, if you have come in the past, you will have
a wonderful time again. We are air conditioned,
of course. We go to the evenings this time. We can have graphic arts and
screens and the poetry slam, and more efforts really
with graphic novels that we’ve been able to have. So, I do hope that you will join
us, if possible, on August 30th. This talk, this Books and Beyond
talk, is something the Library of Congress Center for
the Book has sponsored, as I hinted, for 18 years. All of the talks are filmed
for the Library’s website, and nearly 300 of them are
available on the website. Thus, I ask you and invite you to please turn off
all things electronic. The format will be a
presentation by our author, a brief chance at
questions and answers, and then a book signing, which
we need to start around 1:00, and the books are for sale
at the Special Library of Congress Center for the
Book discount, a little bit of a discount, and the author
is available to sign them. Michael Waldman is a
graduate of Columbia College and the New York
University School of Law. He was director of
speech writing for President Bill Clinton,
speaking of Presidents, from 1995 to 1999, and he is the
author of, among other books, My Fellow Americans, The
Most Important Speeches of America’s Presidents from George Washington
to Barack Obama. The second book, A Return to
Common Sense, Seven Bold Ways to Revitalize Democracy,
and also published as is The Second
Amendment, A Biography, by Simon and Schuster. His second book, POTUS
Speaks, Finding the Words that Define the Clinton
Presidency. Michael now serves as the
president of Brennan Center for Justice at the New York
University School of Law, a nonpartisan law and policy
institute that focuses on improving the systems
of democracy and justice. His new book has
made quite a splash, and we’re lucky to
have him here. It’s is my pleasure to
present Michael Waldman. Michael. [ Applause ]>>Michael Waldman:
Thank you so very much for that wonderful introduction. I appreciate it very
much, and it is true that I was President
Clinton’s chief speech writer, and I liked that introduction. He once introduced me as the
person who typed his speeches. So, I appreciate those
kind words a bit more. It is a great thrill
to be with all of you. It is a thrill to be here
at the Library of Congress in the building named
after James Madison to talk about the structure of our
Constitution and Bill of Rights, which of course also draws
so much from James Madison and in a sense was a building
he helped build or at least for which he was the architect. It’s also a wonderful thing to
be able to be part of the Center for the Books’ ongoing
education of all of us throughout our whole
lives about the Constitution, about America, about the
ideals that we seek to live out and the way those ideas and
ideals, laws and concepts rub up against and sometimes collide with the real world
in which we all live. In writing this book, which I
started actually after New Town, so in the intense period when
we were once again debating gun control and gun laws for the
first time in a long time, I wanted to understand above
all else how does legal change happen in America? How does constitutional
change really happen? The second amendment at the time of those debates last year was
front and center at the tip of everybody’s tongue. People proclaimed
themselves strong supporters of the second amendment. Discussions of legislation
always revolved around the question of
whether this right was trampled on or not. The second amendment,
as you probably know or perhaps know, is short. It’s 27 words. It’s, I believe, the shortest
sentence in the Constitution. In its entirety, it says,
a well-regulated militia, being necessary to the
security of a free state, the right of the people
to keep and bear arms, shall not be infringed. And in the marvelous online
exhibits of the Library of Congress, you can see not
only drafts, a whole host of the background
documents that led to this and the other amendments to the
Constitution on which I relied in working on this book. But what people don’t realize, what even aficionados
are surprised to learn is that the Supreme
Court never ruled that this somewhat convoluted
sentence recognized an individual right to gun
ownership until 2008. That was the first
time, and in fact, it had ruled otherwise
several times before that. So, how does legal
change happen? How did that happen? Justice Antonin Scalia, in
writing that case that was known as District of Columbia versus
Heller, he very proudly said that he was using the judicial
approach of originalism. He said that he told
the journalist that this was the
vindication of originalism, of the idea as he has
argued for and advanced, that the only legitimate way to understand a Constitutional
provision is to ask what it meant at the time to the framers or
their generation. So, I thought it was
important to understand first of all what the second
amendment meant at the time, why they wrote it, how it was
added to the Constitution, how it’s played out
over the years. To understand this question
of how you can have such a, in some respects, head
snappingly significant change in doctrine at this late
stage of our development from the Supreme Court. And in looking at the
history of second amendment, I found quite a few surprises. It turns out that the way
we interpret this provision, in fact, the way we
interpret all the provisions of the Constitution,
owe considerably less to the pristine text and much
more to the push and pull, to the rough and tumble
of public advocacy, public argument, and political
agitation throughout the country’s whole history. So, it turns out that
you can learn a lot about the way our
government was set up, the way our system was developed
by looking at this history of the second amendment, even
about and beyond the contentious and painful issue
of guns or violence. So, the first surprise came to
me when I went back and looked at what they were doing, why is this in the
Constitution in the first place? In a way, the story starts
in hills outside Boston, 16 miles to the northwest
at Lexington and Concord, when the first skirmishes of the American Revolution
were fought by the minutemen. That was the apogee of the
well-regulated militia. The minutemen were
considered the pride of the American concept
of the militia. It turns out that that idea
of the militia was rather than being solicitor
to throat clearing, as we sometimes possibly
think as we look at this confusingly written
amendment, the militia turned out to be very, very important
to the founding generation, but it was also unlike
anything we have now. What were those militias? Every man, every adult man, eventually every
adult white man was in the militia their
entire adult life. And they were required
by law to own a gun and to keep their military
weapon at home and to bring it in for their militia service. That was the world
they lived in. They thought this was really
important, was actually one of the more democratic
institutions they had at the time, but not only that, they thought it was really
important to ward of tyranny, to ward of the specter of that
they thought was the scariest thing they could imagine,
which was the standing army, the same kind of army
that King George had used in the United States,
an Army commanded by the king with paid soldiers. Instead, the militias
were citizen soldiers who kept their guns at
home, and they were going to block that kind of tyranny. And they thought that’s what
they were doing during the Revolutionary War. Now, as it turns out, the
militias weren’t so great at fighting, and they
had to actually rely on increasingly an Army,
commanded, of course, by George Washington, but
they still were at the center of the philosophy of the
public and political philosophy of the founding generation. Well, you know, the broad
outlines, of course, of what happened then. They won the revolution. The British sailed home. Pretty quickly we
began to develop into what we would call
today a failed state. The Articles of Confederation
were not working very well. You had mob violence and the
inability of the governments of the time to do
anything about it in Shay’s Rebellion
and elsewhere. So, the leading man of the
states went behind closed doors and crafted and drafted
a Constitution. It was emphatically designed by
these young men, most of whom, many of whom had served
with the continental army, designed to thrust toward a
stronger central government. And when it was released,
as you know, there was a roaring debate. One of the great debates in
American history, over whether to ratify the constitution. Many people were very fearful
of this new government. They were afraid that in
fact it would be tyrannical, that in fact it would,
it would crush the states and crush the rights
of the public. To move the Constitution
through the ratification, there began to be a practice,
basically, where it would get up to the edge of being
defeated in the state, and then they would
vote for ratification, but they would say we should
have some amendments as well. And dozens and dozens
of proposed amendments from different states were
forwarded as ideas for things to change in this
new constitution. This is where James
Madison, of course, played a very important
central role. Madison was a genius. He was a genius of
republican theory. He gives the ideals, we follow,
and being in this building, but much more than that, he was
a very canny political operator, and it was a treat to kind
of watch him twist and turn and watch this dialogue
between the politicians of the founding era
and the public who they thought were kind
of roaring and yelling but not necessarily with so much
clarity about what they wanted. Madison had helped
craft the Constitution. He wrote the Virginia plan that gave us the tripartite
government we have. He organized the, he organized
the campaign to pass it. He co-authored anonymously
The Federalist. He was against having
amendments to the Constitution. We would say now he was against
the Bill of Rights before he was for it, but he had
to run for Congress in the very first
Congressional election, and they actually jerrymandered
his district even before they came up with that word because
the only part of his district that was pro-Constitution
was basically his house. And to win that election, to win over the dissident
religious minority, the Baptists, who were
oppressed in that district by the Episcopalians and wanted
a religious freedom amendment, he had to do the
first great flip-flop in American political history
and say, well, it’s true, I’ve always been
against amendments. That was then. Circumstances have changed,
and now I’m for them, and that’s what I
meant all along. And it was a line used
in various forms by tens of thousands of politicians
after that. So, Madison, having
been a leading opponent of amendments now had
to go to Congress. He won by 339 votes, and now
he was going to go to Congress and propose and pass amendments. Nobody was particularly
interested. They all saw these
amendments as kind of a, what they called a
tub to the whale, which was the metaphor
they loved, which was, if your boat was being chased by
a whale, you would distract it by throwing a tub, a barrel,
in the water to distract this, like the way we would watch
TV and the pundits would talk about throwing someone
under the bus. They all saw this as
[inaudible] to the whale. Madison proposed eventually 20
amendments ranging from the size of Congressional districts
to what the pay ought to be for members of Congress to the
provisions that we now know as the Bill of Rights. The amendment dealing with the
well-regulated militia was one of them. It drew very little notice,
and eventually it was proposed, and it was marked on the
floor of the Congress, and it was debated
and it was passed. What did it mean? We don’t fully know. We cannot actually know for
sure in part because there was so little discussion of the
second amendment in contrast to other parts of the
Constitution what they meant. We do know this. As we, these days, engage in our
intense debates over gun rights and laws dealing with guns and
what’s appropriate and what, you know, what kind of
gun laws we can have in the United States, and we
sort of squint looking for that in the debate over
the second amendment. What we find is something else. There is literally not a
word in Madison’s notes from the constitutional
convention or with scattered
exceptions in the records from the ratification
conventions of the Constitution or in the debate in the
Congress on second amendment, not a word about individual
gun rights for self-protection or anything other
than the militia. They were focused on the
militias, and they were afraid that the central government
would crush the militias. And in fact, Madison’s proposal for the second amendment
had a conscientious objector provision, said if you
have religious scruples about bearing arms,
you don’t have to do your military
service in person. I mean you could
get someone else, pay someone else
to do it for you. And of the 12 people who spoke
in the floor of the house of representatives on
the second amendment in the debate was all
about the militia. So, that was a real surprise
just how different a world they were living in. Again, these militias were not
like any, they were not the same as the National Guard today. They are not the army. Every adult white man was in
the militia, and they had a gun. They were required to have a
gun, but I’m asked frequently, you know, writing
a book like this on this controversial
subject, so, which was it? Was it an individual right
or was it the militia’s? The answer is, it was
both, and it was neither. They intended an
individual right. They recognized an individual
right for the purpose of fulfilling the duty
to serve in the militia. Our question to the
framers would make no sense. Just in some ways like they’re
answer to us makes no sense. Now, I want to be very clear. There were a lot
of guns in America. People had guns. There were no police force. Out on the frontier,
people needed guns to deal with the Native American tribes
or to deal with hunting or any of these other things. They had an expectation that
they had the right to have a gun under especially common law, handed down by courts
from England. You had the right
to self-defense. But at the same time,
from the very beginning, there were also gun laws. At the time of the
Constitution, there were laws that you could not keep a loaded
gun in your home in Boston. There were cities where
you couldn’t fire a gun within the city limits. There were all kinds of
registries and registration and inspections of your
guns by the government, and there were limits on
who could own guns based on loyalty oaths and
that sort of thing. There were always guns. There were always gun rights,
and there were gun laws. But what they thought
they were doing, in the second amendment was not
really dealing with that stuff. They were dealing
with the militia. Then something funny
happened after that. Very quickly after the second
amendment was ratified, the militia system that it
revered, that it codified, that it enshrined, that
militia system began to crumble. People stopped showing up
for their militia duty. The country changed. We grew more individualistic. We moved out west. We cared more about
making money. People just didn’t think they
were going to have to show up for these old-fashioned
militias. The militias turned out
not to work very well. People thought– Madison
wrote in The Federalist that an armed citizenry
could protect the country and you wouldn’t need an army. And then the War of 1812
happened, and the first of all, a lot of the militias
refused to participate. In the Maryland militia,
7000 of them were supposed to protect the capital,
and the British kind of brushed right
past them and burned down James Madison’s house. And after that, we didn’t
think the militias were going to be the way we protected
the country anymore. The country changed,
it grew, it developed. You had guns. You had gun laws all
throughout that time. There was a wonderful
photograph, even from the wild
west, from Dodge City, the archetypal frontier town. It looks like a movie set. It’s from the 1880s, and
it looks like, you know, dusty main street and the
saloons and the hitching post. It looks like Gary Cooper
would walk down the street, and in the middle of the
street is a sign, and it says, welcome to Dodge City,
firearms prohibited. Dodge City. There were guns, and there were
gun laws, all the way through. And as I said, there
were twists and turns. After the Civil War there
was one of the purposes of the 14th Amendment
was to make sure that the former slaves
could get guns because they were
being terrorized by white militias,
the Klu Klux Klan. But all throughout,
the Supreme Court ruled that the second amendment was
not recognizing an individual right to gun ownership. That consensus was
reflected by Warren Berger. Warren Berger, as some of you
remember, was the chief justice of the United States,
rock-ribbed conservative, appointed by Richard Nixon. In 1991, Berger said, the idea that the second amendment
protects an individual right to gun ownership, he said, is
quote, a fraud on the public. That was what they thought then. That was the consensus. It seems like a long time
ago, well doesn’t it. Well, so what changed? That gets to the
second surprise. What changed is the way we
always get constitutional change in this country. There was a long-term
focused campaign to change the way we
saw the Constitution, and the key player was the
National Rifle Association. Now, the NRA, we all
know the NRA now, how powerful it can
be at the ballot box. It’s turned out to have had
at least as significant a role in constitutional law. The NRA has been
around a long time. It was started after the
Civil War by Union officers who thought that the men
couldn’t shoot very well, and it did training
and marksmanship and military preparation. And then eventually over time,
it spoke for the interest of hunters and sportsmen. It didn’t oppose gun
control laws necessarily. It actually testified for them. In the 1930s when the first
federal gun control law was proposed by the Roosevelt
administration, the NRA testified for
it, and when asked, is there any Constitutional
problem with it, the NRA representative said, no,
we can’t think of any provision in the Constitution that
this would run afoul of. That was the NRA. It didn’t love gun laws, but
it was not the way it is now. And what happened? What happened was the 1960s. We think of the 1960s,
and we of course know that it was this time of great
change and tumult, but in a lot of ways, the reaction to
the 1960s that happened in the 1970s has lived
with us much longer and has defined our era. In 1977, the NRA was going
to move its headquarters from Washington, DC, to Colorado to signal a retreat
from politics. There was its annual
meeting, which is still to this day called the
revolt at Cincinnati. A thousand activists
came to the meeting, voted out the old leadership,
voted in new leadership that was much more intense,
much more ideological, I would argue much
more dogmatic, and emphatically focused on
recasting the organization around the idea of
the second amendment and that the second amendment
protected an individual untrammeled right
to gun ownership. And they turned the NRA,
which describes itself now as the country’s oldest
civil rights organization into a constitutional
crusade, so that when you go out to Fairfax and you go to the
lobby of the NRA headquarters, you walk in, and there on
the wall, in pride of place, in big letters is
the second amendment. But you have to look carefully,
because they’ve edited it. They actually edited
out the part about the well-regulated
militia. They have two dots. They don’t even have three dots. They have two dots. And so what did the NRA do? What did gun rights,
more broadly, what did gun rights advocates as
they would style themselves do. They did what others have done
throughout American history. They mounted a three-decade
drive to change the way we saw this
provision of the Constitution. They started with scholarship. There was a lot of scholarship. Some of it good, about what the
founding generation thought, what the English Bill of Rights
meant, some of it not so good. In my book, I go through the
kind of plucking of quotes of founding fathers out
of context that I liken to the people who
write movie posters. Nowadays, we all have the
ability to be originalists to go back and look
at the actual context of what people were saying,
and it often will turn out to be something very
different from what people mean. I’ll give you an example. There was a quote from Thomas
Jefferson that you’ll see in [inaudible] articles
everywhere, all kinds of scholarship. You can buy it on a t-shirt. It’s on the NRA website today. It says, Thomas Jefferson,
one loves to possess arms, but one hopes never
to have to use them. Wow, you know, that’s
a good one, right. When you actually go to the
Library of Congress website and find out what he
actually was saying, it was a letter to
George Washington. He said, remember I
sent you those letters when I was secretary of state? I think I’m going
to get attacked for that decision I made. Could you send me
back the letters? One loves to possess arms, though one hopes never
to have to use them. It was a metaphor. He wanted actually some letters. But it’s still quoted as proof of what the second amendment
meant, and unfortunately, there’s a bit too much of that. So, there’s scholarship,
there’s pseudo scholarship. The NRA and its allies moved to
change public opinion so that by over the years it
emphatically became a widespread consensus view that the
second amendment recognizes an individual right
to gun ownership. Broad majorities of the
public believe that. They elected politicians. They moved the agencies of
government so that for example, the Justice Department
switched its position and other parts of
the government. And then and only then did gun
rights advocates go to court over the past decade, leading to that 2008 Supreme
Court decision. Only after they had
won in the court of public opinion did they
go to the court of law, so that when that 2008 decision
happened, it basically fell like a ripe apple from the tree. It wasn’t all that
controversial. So, that was the second surprise
was the constitutional central role of the NRA. What’s the third surprise? What’s happened then? What happened since
that 2008 decision? And that’s something
that’s also interesting. So, that was the
Heller decision. It recognized an individual
right to gun ownership. In the book, I’m very
critical of the decision. Out of the 64 pages of the
majority opinion written by Justice Scalia, two
deal with the militia, which was what the people back
then thought they were dealing with, and the rest looks at
the words and consults a lot of dictionaries and
other things. I’m not a fan of the
pretentions of originalism, that the opinion reflects, but it didn’t say necessarily
what people think it said. What the opinion said was, yes,
there’s an individual right to gun ownership, but as with
all rights, there can be limits. As with all rights,
there can be limits. How is it played
out in the country? Well, in fact, in
fact, dozens and dozens of courts have heard cases
since 2008 challenging gun laws, and overwhelmingly, they’ve
upheld those laws, saying yes, under this new doctrine,
there’s an individual right, but society too has a
right to be protected. There’s a compelling
government interest in having strong
gun safety laws. So, with some limited
exceptions, gun laws have been upheld. And for all the screaming
and all the storming about people’s rights
and the second amendment, it isn’t really the
case that much of the second amendment
stands in the way of much of the gun safety laws that
are being discussed now. Last year when there was a
great debate after New Town over legislation in Congress, and you had the Manchin-Toomey
bill, which was the bipartisan bill
to strengthen background checks, that was not defeated by
second amendment arguments. It was defeated by
the filibuster. It actually had a majority
of the votes, but argument against it was there was too
much paperwork, it didn’t work, but not really that it was
blocked by the second amendment, because everybody recognizes that government can make
sure the wrong people don’t have guns. That suggests, perhaps, now
the Supreme Court hasn’t spoken again. There is what we lawyers call
a circuit split developing where the court in
California, the Federal Court in California has struck down the gun carrying
laws of California. The question now is how
it related to having a gun in your home, a handgun
in your home. What about carrying a
gun outside your home? That case is going
to get heard probably by a much wider group of judges. It may well be that that
goes up to the Supreme Court, but the Supreme Court
has strikingly turned down opportunity
after opportunity to rule on this stuff again. And all of that suggests that maybe there is
actually some common ground that can be found in the way we
address guns despite the heat and the intensity
of this debate. Even if anybody wanted to,
nobody is going to seize and take away everybody’s guns. We have nearly 300 million
guns in the United States. It’s interesting, the number of
gun owners, we have more guns than before, but the rate of
gun ownership is going down. The ranks of gun
ownership is shrinking, even as we have more
and more guns. And the challenge on this
issue is how can we find a way within this constitutional
framework to make progress? I was very struck just
a couple of weeks ago. There was a new statistic
that I just heard, which is that this year for the
first time more people will be killed in the United
States by cars than by guns, 30,000 people. Now, at one level, of course,
that’s horrifying statistic. Most of that, a lot of that
is suicide and other things like that, but still,
it’s a lot of people, and no other developed country
comes anywhere close to having that rate of firearms
related death. But what’s really
interesting is not that number. It’s about the cars. Cars used to kill
a lot more people. What happened? They didn’t confiscate the cars. They didn’t take away your
right to drive or to travel. They made the cars safer. They made the cars safer. They put in airbags. They changed the drinking age. They changed the speed limit. They put in seatbelts. All the technological fixes that we know have
made cars much safer. There are things like
that, there are things like that can make
guns much harder to use in the wrong hands. I don’t think that
the current version of the second amendment blocks
that in any meaningful way. What I worry about is the degree of constitutional
fundamentalism, of second amendment
fundamentalism, that risks making it harder
and harder to do that kind of common sense effort. I was very struck, I was very
struck by the recent shootings and the debate that
happened afterwards. You know, within few
days, within a few hours, the father of one of the victims out in California had
the presence of mind to give a press conference,
Richard Martinez, in which he said of
his son, Christopher. He said, you talk
about gun rights. Well what about my son,
Christopher’s right to live? And then there was a
response a few days later from Joseph Wurzelbacher,
Joe the Plumber, from the 2008 election,
who said, and this is an actual quote, I’m
sorry for your dead kids, but, I’m sorry, but your
dead kids can’t trample on my constitutional rights. That binary approach, that idea
that somehow there is a pure and pristine text that says that
we can’t have common sense laws in the United States
is actually at odds with the whole history
of the country. It’s not how you got
the second amendment. It’s not how we came to
interpret the second amendment, and I’m certainly
hoping that as we discuss and debate these
issue we understand that what the second
amendment means as would the whole constitution,
it’s not up to James Madison. He’s not going to tell us. It’s not up to the
Supreme Court. It’s actually up to all
of us, all the time. That’s the way it’s
always been, and it will be that way going forward. So, thank you for
your attention. I’m very happy to
answer any questions or have any conversation. [ Applause ] And you all are taping this, so I should probably
repeat the questions.>>Yes, thank you very much.>>Michael Waldman:
Go ahead, sir.>>About six months ago,
a couple months ago, there was a shooting somewhere
where the shooter [inaudible] and a year ago a shooter
went into a schoolroom and shot all those children
and some [inaudible] with a machine gun in fact. Now, the shooting that only had
the, that required the person to reload, is I guess
a single shot as well. But the difference
between the single shot and the other kind
was a machine gun.>>Michael Waldman: Right.>>Now, the laws
have always been against machine guns
in the public domain. So, why doesn’t this argument
of substance over form hold? Why don’t they say that if the
guns can be [inaudible] machine guns by simply switching
something a gun, that’s a machine
gun [inaudible]. Why is that a good
approach to dealing with this business
of these [inaudible].>>Michael Waldman: So,
that’s an excellent question, and I’ll try to summarize
it and repeat it, which is that when someone
has a single shot weapon it’s possible, or a weapon that
can’t fire so many rounds, it’s possible for somebody to
stop them, easier for somebody to stop them from shooting,
but if there’s a weapon that can be turned into a
machine gun or has many rounds, in fact, that’s much harder and haven’t we always
banned machine guns, and isn’t that an
answer to this. So, first of all, Justice
Scalia in his opinion talked about some obvious examples, and I believe machine
guns were one of them. In the wake of these mass
shootings, there were proposals to restore the ban
on assault weapons, on multiple-round weapons,
under federal law, and in fact, a couple of states, Colorado
and New York among them and Connecticut also,
passed laws tightening or banning these
kinds of things. It’s an interesting and not
entirely settle constitutional question because
folks who believe that there is an unlimited
right to fun ownership under the second
amendment would say that while maybe you could do
a background check to make sure that a convicted criminal can’t
get a gun, this is the kind of weapon that cannot
in fact be banned or cannot in fact be regulated. That’s what they would argue. Courts so far have upheld
those kinds of rulings because those are
unusually dangerous weapons, and this is where one
of the complications of the Supreme Court
thrusting itself, as I would argue,
into this debate. We’ve always fought these
issues out in the ballot box and in the legislature. In fact, these kind of, this
is an issue where the kinds of compromises are, I
believe are much better made in the democratically
accountable branches. When it comes to
assault weapons, as with all these weapons,
the Supreme Court said that you could ban guns that
were unusually dangerous and not in common use. Well, as I said, there are
almost 300,000 million guns in the United States. There are about three
million assault weapons. So, is three million unusual,
or is that three million? It’s a lot of guns. It strikes me as bizarre to
think that we need to go back and look either at
colonial history to find some analogous weapon
or at market share to decide if we have the ability to stop a
particularly dangerous product. If it was a toaster,
we could regulate it. So, I think you’ve asked
a good set of questions. Yes?>>I just happened to glance
at your book for just a second and noticed that you
referred [inaudible] about this Judge Posner from
Illinois who [inaudible]. Yet, at the same time,
supported a decision for the rights of individuals. Do you want just to
comment on that [inaudible].>>Michael Waldman: Sure. The question was
about Judge Posner, and it’s an interesting
side story. Judge Posner, you’re right, is
one of the most esteemed judges and law professors and
thinkers in the United States. He’s a very leading
conservative and was harshly, harshly critical of
the Heller decision. He and a number of other
leading conservatives and conservative judges said that they thought the Heller
decision was just the kind of judicial overreach, loosey
goosey constitutionalism that they felt they’d
been arguing against when liberals
were doing it. And Posner, Judge Posner
criticized the opinion in a variety of forums
and books and in blogs and Justice Scalia
wound up responding and called him a
liar, and it was, it actually got very personal, and it was a very good thing
they didn’t have guns, you know. But then one of these
constitutional questions came to Judge Posner, who was a
judge on the 7th Circuit Court of Appeals, Federal Court
of Appeals in Chicago, and Posner had said, it doesn’t
make any sense, for example, for a crowded city to have
to have the same gun laws as Montana where it’s
much more spread out, and it’s all very different. Well, he felt he had no
choice, but nonetheless, he criticized Heller
in his opinion but felt he had nonetheless
no choice but to apply it. And in fact, I thought he
went further than he had to, he struck down the State
of Illinois’ gun law so that Illinois had the
strictest law prohibiting the carrying of concealed or open
weapons, and he struck it down in a case called
Moore versus Madigan and gave the legislature
180 days to pass a new law. But the law that they passed was
much looser, much more liberal in the classic sense, much less
restrictive than it had been, and now when you, it is a
striking thing when you go into the towering downtown
of the city of Chicago, you walk in, and this is
something that was put in the law as a protection for
people who didn’t want guns in their place of business. If you don’t want people
carrying guns into your store or your place of business,
you can do that, but you have to put a decal on the front of
your store with a gun on it, with a line through it. So, everywhere you
walk in Chicago now that you see these decals,
and it’s certainly a change and a lot of people find it
unnerving at the very least. Yes, sir, and then you ma’am.>>You had mentioned that
briefly there’s two faults in this issue, and one
is the access to weapons, but the other is the
volume is already out there.>>Michael Waldman: Right.>>How do you deal
with that part?>>You know, guns of
course last for a long time, and so when you have 300 million
guns or nearly 300 million in this country, that’s
a reality irrespective of what people think should
or should not be the policy. So, that creates as much of a
reality as the second amendment. And so, you know, both
for constitutional reasons and for political reasons
and all other kinds of reasons I think that gun laws that would envision
seizing guns, you know, are not going to happen. But it turns out too
that the kinds of laws that can have the greatest
impact on violence don’t have to be that draconian or
have to be that intrusive. Of course, one of the other
broad trends we know is gun violence is going down,
as with all crime. Nobody’s entirely sure why crime
has gone down as much as it has in the United States,
but it has, and gun crime along with it. And it does seem that
a lot of the things that make a difference are
things like policing tactics, the numbers of police on the
street, that kind of thing, rather than a gun law. So, it may be, again, that
gun laws that would touch on the second amendment are
not even necessarily the ones that have the greatest impact
on the threat from gun violence. Yes, ma’am?>>I wondered if you could talk
about the financial situation, is this just arms
industry money or–>>Michael Waldman:
It’s a great question. The question is, is there arms
industry money behind the gun right movement and the NRA.>>It’s a great question. The question is, is there arms
industry money behind the gun rights movement and the NRA? And I get asked this
question a lot. As I understand it,
and I only know this from reading journalism
and that sort of thing, less than you would
think in the sense that the NRA gets its power from
the intensity of its members. It’s not, it’s a
big organization, it’s got about three
million people, I believe, but AARP has 30 million. It’s more the intensity
and the fact that they will vote
on a single issue. In the past decade and a half,
gun manufacturers have begun to provide financial
support for the NRA. That was partly because
they were making deals and making agreements with
the Clinton administration and others for trigger locks and
other things to make guns safer, and they faced boycotts
from gun owners. And in response to that,
Business Week has written about this quite a bit,
in response to that, they pulled out of the deals
and started funding the NRA. So, it may be that the, it may be that there’s
a change in all of that. And I do think there’s to a
significant degree a change in the nature of the
gun rights movement, and I don’t entirely know
how it’s going to play out. As I mentioned, for a long
time, the NRA spoke for hunters. When I was working for President
Bill Clinton and he fought for the Brady bill, which
was the waiting period and then eventually
the background check, and the assault weapons
ban in 1994, you know, he used to brag that, well, I’m
from Arkansas, half the people in the state of Arkansas
have a hunting license, and not a single hunter has
had their gun taken away by any of these laws. And that was true. We thought there was a
silent majority of gun owners at the very least or even
NRA members who weren’t as fired up about this stuff. I’m not entirely sure that
when one thinks of the NRA, when one goes to its meetings,
here’s the speeches [inaudible] and others or reads
this website, there’s not a lot about hunting. It’s much more of an
insurrectionist tone and a fear of government and a
fear of the chaos, the civilizational breakdown
all around us that they see and that only an armed
individual, a super, you know, an enhanced individual through
possession of arms is the way to fight off those forces. And I’m not entirely
sure that, you know, appealing to hunters is, or
even the gun industry can get around that. I think it’s, I don’t entirely
know what the answer is as a political matter,
but it does strike me as a considerable change
from what used to be. Yes? [ Inaudible Comment ] Well that’s a good question. What about Justice
Scalia and his role? So, as we know, right
now in the Roberts court, the Supreme Court led by Justice
John Roberts, there are a lot of very significant
five-to-four rulings. And some of us believe
that they have been a form of judicial activism,
of striking down laws of reaching beyond where
the court needed to go. The very first one of those big
five-to-four rulings was the Heller case written by Scalia,
and then it was followed by Citizens United and
by the law last year, they came within one vote of
striking down the healthcare law on the grounds of the commerce
clause, which would have stuck down in effect hundreds
of other statutes. They didn’t do it, but there
were five votes for that, and then last year’s vote on
gutting the voting rights act. These are seen as the examples
of activism by this court. Of those, only one of them, only the Heller case was
written by Justice Scalia. He is a brilliant man. He has been very, very
influential in his advocacy of originalism, but
until recently at least, he was so strong in his views that he drove away
other justices, and basically he didn’t
write the majority opinions. They wouldn’t, Justice
Rehnquist, Chief Justice Rehnquist would
not assign them to him for fear of perhaps of driving
away other justices. So, Heller was actually the
biggest case he ever wrote, and it was after two
decades or more on the bench. So, it’s not really
that Scalia’s name is on the opinions, but in a
lot of ways, his voice is in the court room, because
there’s so much focus now on original intent, there’s
so much of an effort to try to figure out what
the framers meant. There’s a case that you
all might not have heard of that’s going to be, unless
it was decided this morning, I don’t think it was, it
was going to be announced in the next week, called Knowle
Canning, and what it deals with is the recess
appointments and what the power of the President is to
make recess appointments. And, there’s language in the
Constitution, which again was from a time when you had to ride
a horse to get to Washington, you know, over a
long period of time. There was a long practice
that’s grown up since then of how we actually do it so that
the country kind of functions, so the government functions,
and the question in front of the court is, well, okay, we
know this is how we’ve done it for several centuries,
but it’s said this here, and this is what they
meant at the time, so which one do we look at? The two centuries or what
they meant back then? And I think there’s
a very good chance that the court will considerably
restrict any President, certainly this President’s
ability to make recess appointments
using an originalist and analysist. So, Scalia is very influential
even if he doesn’t get to write the big opinions. Yes, ma’am?>>Kind of following
up on that question, a lot of these circuit courts
[inaudible] a two-prong test. Do you think if another
second [inaudible] to go before the Supreme
Court that they would agree with how the court [inaudible].>>Michael Waldman:
Great question. So, the question is about
the tests used by courts, by these federal courts,
as they look at these laws. So, as with most constitutional
rights, as I said, there are rights, and there
are limitations on the rights. Well, how do courts
figure out what kind of law violates those rights? Generally speaking, and this
is certainly how the first amendment is treated, for
example, they ask, well, is this right touched
on at all by this law? Is the second amendment
right even affected, and if it is affected,
then what standard of review do we judges
use to see if a law falls afoul
of this right. It’s not what’s called
rational basis, which is the loosest
standard where basically if a legislature or, you know, a government agency can make
any kind of argument at all that what they’re doing is
necessary, then that counts, but it’s not what’s called
strict scrutiny either. Strict scrutiny is the tightest
standard that we use for a lot of first amendment protected
activity, which is that you have to show that it’s, there’s a
compelling government interest and that it’s the narrowest
possible basis and the only way to go and a bunch
of other things. It’s basically kind of
intermediate level of scrutiny, where they say, well, there has to be a strong government
interest and they have to show that they have a
strong interest, and if they can show that,
then it still is upheld. So, the question is,
will the Supreme Court, when these cases get back
up to the Supreme Court, will they go for that or not? The Supreme Court was
very vague about what kind of test they thought
ought to be applied. This is pretty universally what
states have done, I’m sorry, what judges have done. There was a significant and
meaningful, I would argue, dissent in a case here in
the District of Columbia that suggest otherwise. Bret Cavanaugh is a
judge on the District of Columbia Circuit
Court of Appeals. He is a leading conservative
judge. Many people believe that
he might be nominated to the Supreme Court someday if a republican wins
the presidency. He, of great interest to
me, was the principal author of the Star Report,
thought he swears that he didn’t write
the smutty stuff. But anyway, he’s a big deal in
the conservative legal world, and he dissented in a case
and said uh, uh, uh, uh, uh. This is not how you do it. You have to look at history. You have to go back and say,
was there a regulation back then that was like this
regulation, and if there was, then it’s okay, but if not, you can’t just apply an
intermediate scrutiny test. That’s not what the
Supreme Court meant. So, who knows? We’ll find that out the
next time they take a case. Again, they keep declining the
opportunity to take these cases. Some people think that
if nothing else, look, at one level it’s good. You want the, you want there to
be a consensus that develops. That’s the way they teach us in law school how
it’s supposed to go. Other people think
that the four liberals and the four conservatives
aren’t sure where Justice Kennedy is, and
so rather than finding out and being unpleasantly
surprised, they kick the can down the road a little. So, we’ll see. Yes, ma’am.>>So, you talk a lot about
how the decision should be made by the majority, but it seems like the minority is a lot
louder than the majority. So, what is, in your
[inaudible] solution to the overwhelming [inaudible].>>Michael Waldman: Well,
again, so the question is, in the public debate, I
argued that this is an issue where the decisions are by far
best made, if at all possible, not in a court room but in
legislature and the public, in the public soapbox and in
the general democratically accountable way we do things. And as you said, well, the voice of minority here can sometimes
drown out everybody else. There’s no solution in my
mind other than for people who have a different view
to organize and argue just as effectively as the NRA has. You know, on the Manchin-Toomey
bill that I mentioned, the background checks, all the
public opinion polls showed that there was up to 90 percent of the public supported
the Manchin-Toomey bill. But it wasn’t honestly it
wasn’t the second amendment that blocked it, and it
wasn’t even really the power of the NRA, it was the
filibuster rule, and the fact that we take for granted that
you need 60 votes to do anything in the United States Senate,
which is, you can look all over this whole building for
the place in the constitution where it says that, and
it doesn’t say that. In fact, they were very worried,
the framers were very worried about super majority
requirements. So, you know, it’s a conundrum because of course it’s the
classic political scientist’s dilemma of a narrow interest with a more intense view
sometimes can trump the wider consensus of less
passionately held views. I don’t think that the answer
is more single interest groups. I don’t think the American
democracy what it really needs is more single issue voters
and single issue contributors. But I do go back in the most
broad sense to the question of how we make constitutional
change. It’s always been public debate. It takes years. It takes constant
persistent public argument. And I’m very fond of a
quote from Abraham Lincoln from the great constitutional
debate over slavery and abolition. In the first Lincoln-Douglas
debate, he said, with public opinion,
everything is possible. Without public opinion,
nothing is possible. He who molds public sentiment
has greater power than a judge or a legislator because it
makes, they make it possible for those judge or
legislators to rule. That’s the story of this issue. It was the story of slavery. It’s the story of how we
got civil rights laws. It’s the story of how we
have marriage equality moving through the courts and people
see that in the constitution. That’s always the way we
make constitutional change in this country, and this
is going to be no exception.>>John Cole: Thank you, Mike. [ Applause ] Well, thank you, Michael,
for your eloquent explanation of not only the book but a
good chunk of American history. You’ve really not only set
up a number of questions for the future, but
you’ve provided a framework for an answer that we
appreciate very much. We’re going to have a
book signing in the back. Please buy the book, and I also
want to thank Michael publicly for reminding me that we are
in the James Madison Building, and as you go out, if you go
out the First Street entrance, please take a look, maybe walk
in Madison Hall and look at some of those wonderful quotations
about the constitution and liberty and learning,
leaning on each other, that have come from
James Madison. One more round of applause, then please join us
for the book signing. [ Applause ]>>This has been a presentation
of the Library of Congress. Visit us at loc.gov.

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