« The Weeds

The Most Dangerous Branch: A well-regulated militia

2021-10-22

Vox senior correspondent Ian Millhiser talks with law professor Joseph Blocher and historian Carol Anderson about the Second Amendment, the triumph of the NRA's vision for that amendment, and an upcoming Supreme Court case that endangers more than a century of American gun control laws.

References:

The Positive Second Amendment Rights, Regulation, and the Future of Heller, Joseph Blocher 

The Second: Race and Guns in a Fatally Unequal America, Carol Anderson

Hosts:

Ian Millhiser (@imillhiser), senior correspondent, Vox

Credits:

Sofi LaLonde, producer & engineer

Libby Nelson, editorial advisor

Amber Hall, deputy editorial director of talk podcasts

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
We were all taught that a story hasn't three parts. The life isn't actually that linear, sometimes the metal is just the beginning, we're them. This is a new podcast from straight talk, wireless produced by box, creative that examines the stories of the winding road that leads to life altering shifts every Monday hosting yelled Prescott, a fashion editor turned author on the other side of her own. More than this moment will introduce you to six people to change their own lives by leading into the unexpected curves in the road It wasn't a more than this every Monday and check out the first of its I'm transcript, experience fox dot com, slash more than this. The climate crisis isn't on the horizon it's here and we need some.
since the podcast? How we survive hosted by Molly would dives deep into the economics tech, inhuman stories behind those solutions, like billionaires, bankrolling lithium minds to make batteries. In business rivalry. So fears that one seal was dragged off complaint by the feds. How we survive following coming to the end of the world, because our survival might depend on listened. Where were you get your pocket hello and welcome to the weeds I'm in Mill Heizer, I'm a senior corresponded at vocs, and this is the second episode of the most dangerous branch are serious about the Supreme Court. The second amendment begins with four words: a well regulated Militia
It's a very unusual amendment in that regard, because it states up front why it exists the Supreme Court said in United States be Miller. The obvious purpose of the second amendment is to assure the continuation and render possible the effectiveness of MILAN. Judges and the amendment must be interpreted and applied with that end in view, but that all change in two thousand Eight Dc V Heller, which was decided two hundred and six, in ten years after the second amendment was ratified was the first Supreme Court case in american history to hold that the amendment process protects an individual right to own a gun for peace, snow use. Yet, while Heller was a sea change in american constitutional law
is also only a partial victory for the gun lobby, Justice, Anthony Kennedy and sister at some fairly broad limits to gun rights, but Kennedy's, now retired and the cord is now far more conservative than it was in two thousand and eight, and so that brings us to the case that is in front of the Supreme Court right now. New York, state Rifle and Pistol Association V Brewing, which asks the justices to significantly expand the scope of the second amendment and with republican appointees, holding six of the nine seats on the court is very likely that huge swaths of America's gun laws will fall. So let's talk about how we got here and what it means for the future. I've got two experts to speak about the second
meant my first guest is Joseph Blocker he's a law professor Duke and the co author of the positive second amendment rights regulation and the future of power and in later I'll talk with Carol Anderson she's, an historian, a professor of african American studies at Emory and the author of the second racing. Guns in a fatally unequal Amerika. I hope you enjoy both of these conversations and with that here's. My talk with Professor Joseph Blocker Joseph Blow You're welcome to the podcast thanks so much for ever met. So I'm gonna start by just reading the text of the second amendment. It says a well regulating militia being necessary to the security of the free state, the right of the people to keep in bare arm shall not be infringed. So what was the function of the militia that the framers thought was import so important that they wrote it into the constitution?
it's a great question. He and you could have picked any one of those twenty seven words and we could fill in our conversation about it. The central she really in the Supreme Court's landmark decision, a disparate clammy versus Halloran tooth and eight really is about that issue. What were the militia? What are they now? Who do? We would, we think, has encompassed in that term at either to compete, visions. One is that the militia refer to what we would today call the organised militia sort of the founding era. Equivalent of arguably, The national guard, albeit more more organ eyes and more state affiliated. That's one view. Our view is that its these so called general militia, meaning basely anybody who may be called up to serve the second of those two is the one that the court endorsed in the Heller opinion, thus that the militia is not limited to the oil is organized groups, but really encompasses effectively not entirely but effectively most of them.
people. So I'm gonna give you a second quote down. This is from the Heller decision. It says that the inherent right of self defence has been central to the second amendment right now: self defence that a different concept? Then the militia, so how did we get from a set, a second amendment that explicitly refers to one purpose, to a Supreme court decision that is now endorsing this other purpose? It is really a move in scholarship in commentary and litigation to try to focus the second amendments away from the wish and onto these so called private purposes, this is what often known as the individual rights view, the core of which would be a right to armed self defence. And that was largely successful. We sauce or more more articles making this argument in law reviews and in public commentary and then eventually filtering its way up into courts. Now it's important to note that, until after
two thousand there's, not a single federal court case anywhere in the United States, striking down a gun law, on second amendment grounds to district court cases got overturned on appeal, it just wasn't enough. as a matter of law, enters its practical impact. How it comes around and and says that the core interest of the second amendment is self defense. Now that radically change the potential impact of that right, in terms of which which laws might be called be called into question, but- and I think this is this- is a continuing challenge for the courts and for the Supreme Court now is starting to reconsider. The second amendment is actually, what does that mean because the right to keep him bear arms is not the same as the right to self defence or the right to self defence as actual act of defending yourself against an imminent threat is governed by legal rules, like necessity and proportionality and
He's an openness and the second amendment is really a right to have an employment on hand. If that need is ever to arise and what the Pericles studies tell us, as it rises very rarely even forgone owners, something like one in three thousand five hundred guns as ever, used in self defense, meaning that very few guns rarely used or self defence and about one percent of self defence actions involved not meaning again very little of the sort of, if you think about his event, diagram very little of the circle that encompasses self defense involves guns. Very little of the several that encompasses guns involves self defense. There's not a ton of linkage actually in practice between two things, but as a matter of rhetoric and as a matter of what the scream coordinates when Heller anyway, the core of the sex and now is self defence, heller- is an original s decision lightly. You there argument in Heller is that the second amendment? as it was understood when it was ratified the seventy nine. These leads to the self defense theory- and I mean
No there's a lot of scholarly debate about how to do original is improperly, but I'm not Air of any original is who believe the constitution should be interpreted as it was, originally understood by the Texas LOL Review in the nineteen eighties, so I would What's going on here, lay like how do we get to an original is decision if the impetus that Goddess Air is scholarship from the twentieth century. story. I really does emerge in scholarship what the Supreme Court ends up, Holding in Heller is informed by that point decades of some of its industry funded scholarship, enlarged views, another outlets in effect, Heller. I find this, making justice clear majority opinion sites more secondary sources and sites them more often than it does all tradition.
An illegal materials like cases and constitutional provisions and statutes combined. In other words, the court seems to be pulling directly on this sort of decades of again, some of it funded some of it, not scholarship in large using another outlets. Now there's a lot you can take away from that. One is just that you know a concerted effort to change the meaning of a constitutional provision can succeed over time. They could see, can succeed in multiple different directions. We see that in lots of different areas of constant the law. This is just another example of it, but I guess I also say that you know the debate continues. Justice Gilias opinion is certainly an original list opinion, but so is just the Stevens led descent drawing on some the same source citing back and forth to each other about Joseph Story and how we should interpret what he said. So what does it say, though, about the constitution, and I guess the stability of law in general, that you can have a period of over two hundred years.
Where the second image largely wasn't viewed as the domain of the judiciary and then the case reaches the Supreme Court and, like you said in Heller, you had five conservative justices who looked at the law in the text and the history in the and like all of the proper, originally methodology, and they came to the conclusion that the result that conservative like is the correct results, and yet for liberal justices, and they did the exact same thing. They look to the exact same sources, the exact same history, these the exact same of. Jealous methodology and they came to the conclusion- that the result that liberals prefer is the right result so I would just what does that say about the nature of LOL? Its that's a there very deep, Why should I think, there's really two questions wrapped up in there in one is about constitutional change and what counts is constitutional change. What counts is legitimate. Constitutional change
and another is about what it means to interpret a constitution in keeping with sort of original list, interpretive method. So on the constitutional change point it is it is, it is stark that more than two centuries. There is no federal case anywhere in the country striking down a gun law on Second amendment grounds, and now, since two thousand and eight fifteen hundred or more second amendment challenges ever since Heller was decided, most of them unsuccessful. But all of us The second amendment is this active sight of constitutional contestation which was not before? That is strong, On the other hand, I guess I should know that the first amendment was inert for most of its use. Ray as well, and it really wasn't until the early. seen. Hundreds of the court's started to kind of figure out what it was all about with opinions like justice, homes, famous dissent in the in the Abrams case, The second amendment now is kind of like where this first amendment was in the night twenty seven. Nineteen thirty, which is all these huge, open questions. What is the scope of the right? What is the doctrine? Gonna look
like in Vienna, whether that ends up being a success story for law or a failure, think depends on where the justices steer it from here on out. That goes to your second question, about sort of original legal methods, and should we were are at Heller as a sort of vindications or the highest age of original ism? Or does this really call the method into question, and certainly there are people who ve held it up both to celebrate. This is the greatest in our regional supply. In majority opinion the court is ever issued, it's probably just a school is most important majority opinion and a constitutional case, certainly some celebrated that way, I too, I don't take it as a win. My think Heller would be much more persuasive had it been written frankly as a living constitutional opinion, because by the time it was decided so the five percent of Americans agreed with the proposition that the second member protection individual right to keep em bear arms. The opinion, down when Obama Mccain we're campaigning against each other. They, both by the end of the day, came out to express their agreement with it. Like the battle had been won
It wasn't one, though, in the historical sources, like nothing new, came to light. That would justify that big of a change, and I and the reason I think that matter so much is that the court currently seems to be contemplating an even more historical turn in the way they did. You two Kate Second amendment cases in the doctrine that it sets, and I think that's I think that's problem there. So I mean we ve been talking about this so far as if like this is a conversation my scholars and experts in Euro people delving very seriously into the history, and I mean you're along faster? I'm a guy who at least plays legal illegal scholar on tv like? I think this is a conversation, that's very complimentary to our professional choices, fair enough part of why I feel like there's something else: going on beyond the fact that
bunch of legal scholars and black robes came to a conclusion by reading scholarship, you'd, there's, there's a whole political movement driving the Odin the movement towards Heller and the movement towards a more expansive second amendment. So how does that influence the court I think that's absolutely right, and this is one of the reasons I think actually, that Heller would have been more persuasive had it written ass, living constitutional opinion, recognising constitutional change that had happened, sort of bubbled up from democratic politics and constitutional culture. I mean that's where the gun Rights movement, one, the biggest wines, as before long before the case was ever filed, some sort of convincing three quarters of Americans at the second amendment. Does protect an individual right, keep bear arms for for private purposes like self defense, it's tough to really chart. You know the extent of that change, but just to data points quotes that people often sort of throw out both Robber Borg and Warren Burger who
hardly like in a wild eyed left the advocates, the nineteen eighties and early ninety nine. These were referring to this and this quoting burger as the idea that the second member protection individual right is the greatest piece of fraud that repeat word: fraud perpetuated on the american people by a special interest group in my life. That's warrant burger talk as if not you know this again, not some wild eyed, lefty gun grasp near Nixon appointed exactly exactly and a robber Bork agreed and less flowery turned the same basic at Saint basic notion, and yet, but time the cases decided in two thousand eight. You have soon to be pro Obama, agreeing with individual rights interpretation right. That is to your point, something that happened way outside way before the the case was ever file. That's a change in constitutional costs. no culture that still frankly, where a lot of the wines are being drawn about how we regulate guns in this country. It's not that court
for striking down a lot of gun laws were not yet at that stage is just that we don't pass gun laws in the first place or we repeal the gun laws that we have, and so now there twenty one states and you can carry a gun concealed in public without a permanent that the thought of constitutional command. Although it's called constitutional carry, that's just a political choice and that shapes the Supreme Court's decision, just as it shapes Practice is dated at so one way that I guess the tail is starting to wag. The dog here is your: not only do you have like groups like the NRA advocate for political position that shapes who gets put on the Supreme Court, and then you get different types of constitution, visions, but now the on array- and you know related group are getting involved in the judicial confirmations process itself, so that the first Supreme Court, just as that, Vienna re ever took a position on at all was soon you're. So to my oral bombers, first Domini
and since then they have opposed every single Democrat who has been up who has been nominated to the Supreme Court how'd. You think that change is both or judicial politics, but just the nature, the court that I mean I wish the energy isn't the first political lobby to figure out that you do the nominees are really important, but the more that get involved in the game. You you how that change the nature of our judiciary. I'm not sure judicial confirmations or even their biggest, when I think that the biggest wine has been creating a nationwide state level network of members who are willing to turn out at every city council meeting at every state legislature. I mean we see this with the armed rallies in places like Michigan Virginia. Wherever else, I think, that's where the real work is being done right now. Of course, the digital confirmations are hugely important and you know who does just, Cavanaugh get nominated or picked without his dissent in the Heller to appear.
Which is a very welcome decision for the entire ray. I don't know. I don't know, I'm not close enough to the politics to know on that. You know, but likewise for Justice Barrack, she wrote a very prominent descent than a case. Call canter again. Welcome by Rights advocates that certainly played a role in support for her now with a case pending before the court will have a chance to see kind of how that how that pays off the Supreme Court just has not issued as many second amendment decision. Is it hasn't. You know, with camping financier you no other area So it's kind of tough to know how these bats are gonna play out or have they how they have played out. One more thing: I guessed to close off this point about how politics, influences the law and the law influences. Politics is the rhetoric. I M mean that even see from judges and Supreme Court Justice is often strikes me as extraordinary. So you know, Heller was decided in two thousand eight in now. The first decision hoeing that as an individual right to bear arms two years later. There is another case called me
Donald and I'm going to read a quote from the Mcdonald decision. The frame in ratifying the Fourteenth Mehmet countered the right to keep and bear arms above those fundamental rights necessary to our system of ordered liberty. Now I mean the words ordered Liberty, active of specific legal meaning, but still like, is the Supreme Court really saying? ordered Liberty did not exist in the United States until the Heller decision in two thousand and eight to your point about American Mcdonald. One thing: that's really, interesting that happens in that case, which I think escaped notice at the time, certainly escaped my notice, but has now become. Maybe the predominant rhetorical frame for gun rights advocates is that Justice Alito, who
The majority opinion in Mcdonald says almost in passing that we will not treat the second amendment as a second class right now, he's responding to a very specific argument, which is the Chicago which is the defendant and Mcdonald, had asked that the court not incorporate the second amendment, meaning not make states and local governments bound by the second member would just stay something that applies to the federal government and most right. been incorporated, so this was sort of asking for like differential treatment. If you like the second amendment and Justice leader said no, we won't do that when I can treat the second them as second class right he's. Referring to that very specific argument. But since then advocates judges, people, input Commodore have just taken that language and run with it, and I actually working on a paper right now with my co author, Eric Reuben it s them, you serve charting how this happens in a sort of metastasized into this whole report. whole frame, which I think fits into a general mindset of personal
and you know where the bitter errors, and so on that you know this right and or that gun owners are being mistreated in ways that are and you'll see. Going owners argue this that our kin to the way that an end. I hesitate even to say this, but this is the argument that they are being treated in the same way as black school children in the south. In the nineteen fifties, though, actually invoke the word. of massive resistance which, for any of us who are familiar with Brown and its aftermath? No that's referring to. You know that the White Supremacist segregationist resistance to integrating gateway schools they're saying essentially that their facing something similar in the discrimination they face from governmental actors when it comes to guns, and that means that I think is just extraordinary. It certainly takes advantage of this second class right radically such ass. This, the Lido referring to this exactly in, is really remarkable. Speech to the Federalist Society last fall, I suspect, will see it at the support
courted oral arguments next month? So, let's take a break here and on when we come back, I want to tease out some of the tension between this sort of extraordinary rhetoric that you were just talking about and what the hell decision and that at least the cases that are in the box right now actually have to say about the scope of the second amendment. by now you probably know at least one person who blew up their life or the course in the pandemic. You know- percent in your life, who packed up their home and moved across the countryside unseen or left a toxic job or impulse adopted a pet or two or three. I know someone got three and we usually tell stories just like that, distilled into a happy ending or Britain into an attention grabbing, one liner, but the farmers fascinating parts of the story, often the leader more than this is a new package. From straight talk, the wireless produced by vocs creative examines this
worries the winding road that leads to life altering shifts hosting you'll Prescott, a fashion Your turn author, on the other side of her own more than this moment butchery- you just six people who change their lives by leading into the unexpected curves in the road get new weapons, Every Monday, wherever you wasn't upon, casts and took out a first of its kind, transcript experience at fox dot com Wash more than this. Emily honing, former prosecutor and host of the Cathay podcast up against the mob this season. I've talked to former mobsters under cover. FBI, agents. Lawyer,
And more who I dealt with during my time, prosecuting the italian mafia. Together, we ve told the real insider stories of what it was like to be there. The fear, the pressure, the triumph I what really like to try to bring down the world's most secretive criminal organization. We just right. The first season and you convince all the episodes now by searching for up against the mob in your favorite podcast ad. Welcome back. I mean Mill Heizer, I'm here with Joseph Blocker talking about the second amendment and its future after the newly constituted Supreme Court, get its hands on it on so deceiving. Heller was not a total loss for proponents. On control. There's a whole section in that opinion laying out here are the sorts of things that government can still do to regulate gone. So could you just walk
through what sort of what sort of gone regulations are still permissible under existing law? Absolutely I just want to highlight the if there's one take away from Heller that I think it's missed its exactly what you said, which is that Heller makes it perfectly clear that gun regulation is not categorically unconstitutional, that various forms of gun regulation are perfectly consistent with the second amendment that the right to keep and bear arms, like all constitutional rights, is subject to various forms of regulation now the way the court says this in its opinion, is nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms insensitive places such as schools and government buildings, or laws imposing conditions and qualifications and the camera sale of arms, which I know is a lot of words, but it should be read right next to the words of the second amendment in terms of the sort of come combination here of rights and regulation that have coexisted since the founding continue to coexist now,
just as clear goes on by the way to say that the majority of nineteenth century courts to consider the question held that prohibitions on concealed carrying with weapons was also consistent with the second amendment, and the court even goes on to say everything we ve listed here is not exhaustive. This are just some examples of laws that are presumptive Lee Constitutional Presumptive legal rights? That's potentially along listed describes. Actually, a lot of the prohibitions that existed under under federal law with the court doesn't tell us at least not clearly, is why those regulations or constitutional and not others right. The court just said springboard just added Heller, basically we'll let the lower courts figure that out now in the twelve year since Heller, there been more than fifteen hundred cases in the lower courts, where state of federal courts have been trying to figure out that question and the dust has started to settle a little bit. You know: there's lots of different kinds of gum,
laws on there's lots of different approaches, and you know each case looks different, but at a very broad level the federal court of appeal have unanimously endorsed. What's called the two part test for the two part frameworks. The first question in that, in that framework, is a threshold enquiry about whether the second amendment comes into play at all, because Heller makes it clear that there are certain kinds of guns People in certain activities that just are not covered by the second amendment kind of in the same way that liable or securities fraud don't count as speech for purposes the first amendment, even though they involve words there just off the island. They just don't get coverage at all right, so something's followed there. Do you think that I mean setting aside the two part framework, just the language in Heller, saying that their limits The second amendment is going to have staying power. or an one reason why I think it might not is justice, Stevens the Centre and Howard shortly before he died on. I believe he reveal this in an interview with in your time is Adam Lip tack
he said: oh yeah. The reason why that language was in there is because Justice Kennedy was the swing vote and he insisted that be in there. He wouldn't have joined the majority opinion and Justice Kennedy isn't a justice any more. Neither for that Mammy Ruth Vader Ginsburg, who was another dissenter inhaler, died and was and was replaced so if that mitigating language was Anthony, Kennedys baby. can it be sustained in the absence of Anthony candidate, it's a tough one, that Sir, because the records like what we know about the justices, even the current justices holdings, an amendment is still somewhat limited. We get a sense of word now, just as cabin eyes because of things he said when he was then Judge Governor likewise for Justice Barrett, when she was Judge Barrett Justice corset
we don't have. We don't have a record on guns in the same way that you know some other justices you may as a record of what he thinks about Chevron, deference or whatever else right. It is not quite as as well developed. I think there's likewise. Chief justice, although is no longer the median likewise also for justice. I think there are many people who thought well just as leaders of former federal prosecutor. Certainly he must have sympathy for the kinds of guns Does that Justice Alito enumerated in Heller are that just Scalia enumerated in Heller as being constitutional, like prohibition on possession by felons provisions on by the mentally ill. Those are enumerated in federal law. No way a former federal prosecutor is going to vote to strike down gun laws which the solicitor general, even when parliament and Heller stood up to defend right. But I don't know
just as leader has said things publicly and in his dissent from the dismissal of the second Emma case last year. That suggest he really thinks this right is being mistreated and under enforced, and I can imagine that a response to that might be to jack up the level of scrutiny to impose like a higher level of judicial citing deregulation on these laws and maybe doesn't know which way the cards are going to fall on without how that can impact sort of public safety. But you know too to your point. It is seems undoubtedly true that that line that I read off earlier was put their to placate Justice Kennedy and to get his vote. The necessary fifth vote. He is no longer necessary to media, has moved sharply, whereat lands. Those is still so we're not sure. So, let's talk about cabinet bear it, since they ve really do see to have articulated fairly robust views about the second amendment, as you know, at least when they are on the lower courts arm. So you tell me where they fall on us so
Big thing here is the sort of methodological stake. So what I just described a minute ago, this to part framework for evaluating them laws, is the overwhelming literally unanimous framework adopted in the lower federal courts right now. But there is an alternative tests, which was it is generally associated with the dissenting opinion. Justice Cavanaugh wrote when using the Deasey Circuit, which called the test of text history and tradition, and what this test would do is evaluate gun laws based only on text, history and tradition right? If a gun law lacks the sort of the requisite historical pedigree, then it is maybe perceptibly unconstitutional and that's that the Text- the second and the text of the second, exactly which again as we as we said at the very outset, twenty seven words. It don't answer a whole lot of questions. You can stare at those words as long as you want. It's not gonna. Tell you whether you know a large, faster, gesine as they an arm for purposes of the constitution or whether a person convicted of domestic violence crime is among the people to whom this right extends the text. Anything
you very far. History is a mixed bag, not because the wheel like a history of gun regulation. Actually, we have a very robust history, have gone regulation and often gets overlooked, and I should plug here Duke host something called the repository of historical gun laws, free online resource. Anybody doesn't believe they can have it and have a look. It covers gun laws up until one thousand nine hundred and thirty four, it's not even comprehensive and has one thousand five hundred examples of historical gun laws in it. But I think it's worrisome about this test of text. History and tradition is just that the history doesn't speak with one voice. We have very different regional approaches to in the south concealed carry was restricted even before it was restricted and other areas, because concealed carry was thought to be unmanly. The kind of thing an assassin would do, etc, etc. Public carry of guns was not as common in New England, it was more heavily regulated there like. How do you draw national rule based on these very different approaches? The big differences between
cities in rural areas and cities, including in the famous sort of gun towns of the old West places like Dodge City tombstone Arizona, gun possession and city limits was illegal, but you literally checked your gone when you arrived at the city limits like how do you average all that history, together just doesn't make any, doesn't make any sense to me? I think the more troubling thing in this goes charge. Sort of continuing conversation about original isn't is that it's just really hard to try to draw useful parallels between the late seventeen hundreds of the MID eighteen hundred end today, especially when it comes to a rapidly changing technology like firearms, so some courts have tried to of chart the boundaries of the second amendment by looking to the quota quote lineal descendants of funds are a gun, regulations and late. Seventeen hundreds, but judges
Historians and guns dont have progeny, there's not like a family tree that you can draw to figure out where in a our fifteen's family line goes right is it is a modern grenade launcher like a musket and the sort of relevant sense, because you can carry it as a people could lift it or is it not because of its massive destructive power like these are all to me just like existential questions on any? to do with what either gun rights advocates, organ regulator should care about. This is just as this historical pedantry for no real purpose, but that's where a test based solely on taxation tradition could take us the other place it could take. Us, though, is made even worse, which is that, since the histories almost always going to be unclear and contested, is that Judges are going to end up sort of making these comparisons based on their own articulated and probably inarticulate bull intuitions about two things.
being similar or not that's, not even doing law. At that point to me, that's just like it's just like an illogical reasoning with no real restriction, then judges, I think, we'll give into their biases now maybe they'll be biased, as you, like. maybe they won't, but it's not gonna be articulated in the way that I think the sort of current to part framework is that brings to the surface the stuff that we care about as opposed to stop hiding it in the sort of historical analogies. Very very few murders, even though there are a lot of you know, whenever there is a mass, involving the salt rifle gets a lot of attention. That is a tiny percentage of murders in the United States, the majority, I believe the overwhelming majority of gone murders in the United States about seven thousand out of eleven thousand and twenty seventeen were committed with a hand, got, and I mean, makes sense you can conceal a handgun your MA
murders look more like there's a bar fight that should have been a fist fight at it becomes a murder case. Owen has gone to spell these are arguing and because someone has a gun at me, I'm something more and yet Heller was very clear that the hand gone is the super protected weapon, and so you what are we supposed to lead do the limits on Heller actually mean very much if the deadly as a weapon in the United States has the most constitutional protection. The debate about assault weapons which the people people fighting about the label. There should be called modern sporting rifles issues. Britain should you know that it's a semi automatic rifle, which it is, I think, just draws some oxygen, sometimes in a way that is not always hopeful
I mean, I would add, that the mass shootings is horrific as they are and the fact that you know- and I think we should be clear- we talk about mass shootings at the ripple- affects go far beyond the number of people who are actually killed in a mass shootings, though we should not underestimate that, but they still constitute a tiny, tiny percentage of the actual gun deaths in the United States every year. Most deaths no gun doesn't the icy there. We are by suicide, which law can do something to prevent, but even if we focus on the homicides, it really is a. It is a handgun problem. It is disproportionately a problem in urban areas. and it is a problem that does not affect everybody. Equally demographically, like we're talking about a country in which young black men are fifteen to twenty times more likely to die of gun violence than white man, it's the leading cause of death for young black men, like that's an extraordinary extraordinary discrepancy. In that hand, gun violence, overwhelmingly justice bright, pointed out in his Heller descent.
With the same things, that, according to the majority opinion, make hand guns a useful self defense weapon are precisely the characteristics that make handguns attractive to criminals, their conceivable there really easy to use There's that I don't think it's. This was not an easy way to cut a break that symmetry, but you know one way to do. It is through the kinds of laws that New York has, for example, California, New Jersey, Mass uses, another's which or at least require permits for carrying guns in public places and require some kind of showing of good cause before you do it. That's allowing people have their hang at home for self defence at the core interest protected and Heller but it also minimizing the number of interactions that a person carrying a handgun is gonna have with others that might turn into the bar fight or fight over parking. They are a mask in a store or whatever else, and you know, look the headlines every day and see examples of those. So, let's go same way, too, I guess the reason why
having this conversation in the first place and that SOD Newark State, rifling, pistol, Association, V Bruin the case that in front of the Supreme Court right now so just tell me In that case, what is at stake and it was the specific law and you you know, how do you think it's likely to turn out? This is a challenge to New York's requirement that an applicant who seeking an unrestricted licence to carry a concealed handgun, has to show proper no New York. It is illegal to openly carry handguns, so the only way to carry a handgun in public would be concealed and therefore, with with one of these licences In order to show proper cause. The statute doesn't define what proper cause is, but New York courts have interpreted to mean that a person has to demonstrate a special,
need for self defense above and beyond that of the general community. So you have doesn't get particular reason like maybe you work in the EU in a risky job or you Ben. You know, you're being stock by someone or set some particular reason, particular in particular as need for cell for self defence, and this is all this, but on the books for a really long time hasn't it more than a century, and this goes back to Heller, where you know. How are the court says that these court of law standing laws or presumptive we lawful and the court. There refers to, for example, the prohibition on possession by felons that was prohibition in federal law until really lighting thirties argument over nineteen sixty. So this law is older in basic its current generation. That than any of those. In this particular case the- Commissioners were not able to show proper cause, so they were not able to get their licences they received restricted, carry permits, which means they can take guns in certain places, but basic
on populated areas. Of course, they can solve hand guns in their homes for self defence on their own premises, that's the holding of Heller, but they argue, nonetheless, that this restrictive regime violates their second amendment right now. I think there's really two things that are significant about the case. One is sort of a substantive point. The others methodological point on the substantive point: the New York LAW is similar to laws on the books. In some other large states, we can sort of divide licensing schemes for public carry really into two categories. There are those that say alive. And agent shall issue a permit to anybody who meets the statutory criteria like who is in a fella or fugitives from justice or whatever. Those are called. The shall issue states then there are those that say that the licensing authority may issue a licence to a person who is qualified. Usually in those may issue states. That means that the person has to offer
the show. Some kind of justifiable need good reason and proper cause. The phrases are a little bit different to carry a gun in public now those states that includes, place like California, why Marilyn Massachusetts New Jersey, New York, these are states with a combined population of like eighty million people. So is a lot of people affected by those laws. If New York's get struck down, it could well be that those laws are next on the next on the chopping boxes substantively This is a really important question method. Illogically, it's a really important question, because the car, may, especially with the sort of new appointments adopt a whole new test for
value weightings. Other kinds of second amendment laws going forward, and I think what people are really focused on is that the court may adopt this test of text. History and traditions are purely originals approach to the second amendment and then use that to replace the two part framework which has been adopted thus far throughout the court of appeal, and that would be a major change in Second amendment doctrine and would really said, thrown a question what we sort of thought. We knew from the fifteen hundred or more cases that have been cited since Heller. So those are the two things I'll be watching. Is the sort of substantive, what's gonna happen with a New York law, but a sort of almost more important, more broadly, the methodological question of is the court can adopt this test of texts, history and traditions, and on that I should say, uninterested full disclosure. I filed a brief in the case arguing that the court should
not adopt the test of Texas. Your introduction, I think I'll, be a bad idea, so I want to close this conversation by taking this too. I guess it even darker place than where we were. We ve already been so like, in addition to like the self defense rationale that was particularly by Heller, Gun rights advocate, often articulate our oghee, subscribe, he's kind of an anti tyranny argument that the idea is. Guns are what allow you to stand up to your own government, and you know it if we were having this conversation in a year ago, I would have made a mosque, comment at this point, like you know, really, you're gonna take your hand gone and take on the? U S army with that, like, if you think that's gonna work, but then January six happened and MIKE. I think it's now clear that
that ordinary people with ordinarily available guns could potentially do a great deal to disrupt the functioning of a state government or the federal government. So what are we supposed to do about that? And what are we supposed to do about that after decision in Bruin that could potentially lead to many more guns being even more readily available. I think one thing we're really seeing is a sort of a shift in war. The paradigm scenes of gun use of what comes to mind you. No one person thinks about the second amendment or person things whether it can bear arms, Heller's pay I'm. Seeing is a person holding a gone on an intruder while they call the police right, it's it's. It's self defense against an armed criminal invader, and that's just not the full reality of gun use, especially in the last ten years. At the time, Heller was decided. We hadn't really seen these outburst of armed protest
that we ve seen since then I mean, if you go back as far as this is the sort of Bundy Ranching protest, you sinks or more more of these self pointed revisal anti posses groups, bathing places of democratic engagement and democratic discussion. I think, even more than January sixth, which you know fortunately didn't involve as many firearms as it might have if it were in another jurisdiction with less stringent gun laws in D C. The one the stands out to me is what happened in the Michigan Legislature last spring, when hundreds of armed individuals stormed the state legislature, nominally opposing the state. My mask mandates that governor winner was then supporting and successfully forced the legislature to shut down. I mean that that is, it is harder for me to come up with a. Or like image and a more clear image of what it would mean to assault the body politic. They they literally invaded the legislator, which, by the way,
self- was not illegal under Michigan LAW of the time Michigan to not, although it forbade the carrying a sign in the legislative chamber did not forbid the carrying of gun. Now, that's one example to your question: what can change? That's something that can change. What doesn't we don't have to accept? The constitution doesn't require and nor do I know no, to our sort of shared political commitments- requires to accept that people who are armed can dominate public spaces and essentially treat people with whom they disagree, as if they are political threats. You know that It seems that some sick, their reading political disagreement through Heller's self defense lends, whether in a blacklist matter, protesters and armed counter protest showing up verify them. What worries me- and, I think, generous six- hopefully you know, makes people think about this. But what worries me more, that we just don't have a sense of how many people have been deterred from protesting or voting or speaking up or peaceably assembling, precisely because they are terrified that they will be confronted by
I do know armed mercenaries or, if you want to call them, you know who were we're gonna threaten them with weapons. That is that that is a harm to other people's constitutional interest, and a Hasta has to factor into the calculation here, we'll Joseph HU. Thank you so much for joining me and for all workers through what you think the future of the second amendments. Gonna, look like thanks, I see and I really enjoyed it. Lets take another break They will come back with my conversation with Carol Anderson. Welcome back I mean Mill Heizer. My second guess is Karel Anderson, careless weather. Asians leading historians of racism in the United States at her latest book is the second ray sin guns at a fatally unequal America. We talked about how gun rights have historically been used to oppress and endanger people of color, and especially African America. gets Carol. Anderson walked back to the podcast. Thank you. So much
having me so you begin your book. The second, with a fairly provocative, claim I'll just read a quote from the book here, which is that the second, quote was designed at has consistently been constructed to keep african Americans powerless and vulnerable. So before we dig deep down to the details of that Gimme, the elevator patch you, you know gimme the summary of that argument. This we have? That argument is that the second amendment was really born out of the fear of black people and how We use guns and the militia in order to protect the white community from African Americans. So big part of your argument is that racism was inherent to the very purpose of the second amendment and that's at all. With it would. At least some scholars have said about the amendment on the killer. More at Yale, for example, has argued that the primary purpose of
second amendment was a kind of preservation of local control. There would be local militias that could serve as a Czech against the federal government as specifically against a standing army. So tell me the case for your theory why'd. You think that a keels theory and other theories of the second amendment made I fully capture the role that race play in the creation of the second amendment so as on reading through the the constitutional ratification conventions seeing is the role of the militia was there too to quell slave revolt in order to put the enslaved down, and so when, when George Mason in Virginia,
is is just railing against James Madison, because Madison had put control of the militia in the constitution under federal control. It's like we will be left defenceless. We cannot trust those folks in the federal government who will be from Pennsylvania who be from Massachusetts who are already providing for the end of slavery in their states. We can't trust them. When we have slave revolt, in order to send the militia down to protect us, and so it is the salient sea of of of slavery. The salient sea of white fear of black people That is to be central to the second amendment. One thing that strikes me about you argument that the second amendment was racist in its intent that that this is and all this is an issue that comes up all the time in the law on Anti discrimination law there. Some people
We believe that only intentional discrimination should be forbidden other people who believe that laws that have a disparate impact on the basis of race arm should also be forbid it, and I guess my question is: should we care about a distinction here. You does it matter if the second amendment was racist in intent, if, in fact, in you know it is leading towards negative impacts on people of color. For me, disparate impact is as important as intent, and this argument about the second amendment that I was looking at dealt with the rights of African Americans. That's where I began hunting because it came out of the Philander Castillo killing prosecutor, John Choices. that for Lando Castillo was shot seven times by officer Geronimo Yen as less
In a minute, after being pulled over, the question then became we'll. Don't African Americans have second amendment rights and I went wow, that's a great question and I went hunting and what I found was. The answer was really no, because the second amendment was really designed. the control and contain black people. You know that the striking thing and you for listeners you'd, who don't remember the details of that killing Flanders Castillo, was a black man who was pulled over He was legally carrying a firearm with him and, like the two things, strike me any one, was that he was killed despite the fact that he wasn't breaking any law? But the other thing that stands out to be is that groups that normally would weigh n when someone's gone rights herb so brutally taken away on the Anna re theirs liquid silence there within a wider think there were such silence
the silence tat was there from the inner re was so striking, because this is the same in our re. That went full bore against the federal government at Ruby Ridge and at Waco calling the federal officers Jack, booted, government thugs, and so when it came to than the killing of a black man. It took pressure from African Americans in the inner re to get the in order to make any kind of statement, and it was this milk a toast. Will we believe that Everybody has the right to to bear arms, regardless of race, religion, in a sexual orientation, and then African Americans pushed further and the inner came back with well, we can't really say anything until the end, The delegation is over. That was so non in our re, like that. That's what led the journalist independence to question!
of don't African Americans have second amendment rights and winder, seeing the way that the inner ray is responding to this. The answer is no, so I'm interested in your reaction to that. There is a brief filed by several public defender groups in the big second amendment you're, not a your heads. I think you know its brief. I'm referring to. The argument is essentially that look most of our clients or black and brown. They are a rested for carrying firearms. You. It is argued very similar to what I sometimes hear from marijuana abolitionists that you have. The people who were arrested for presenting this legal item are disproportionately people of color at so, if the court
or to step in and say it's no longer illegal. You, then you wouldn't have all these impacts on these communities. So what's your reaction to that brief that briefest powerful? But as I read that brief, it didn't deal to me, which is the underlying issue in american society, and that is anti blackness, that fear of black people so that we ve yes, we ve got this legal system, this policing system that targets black folks. That is without a doubt, but what happens is that when black, as the default threat in american society being black and unarmed, already your threatening being black with the possibility of being armed, doesn't take that threat away. In fact,
it increases exponentially. So you can see that in a system that sees blacks as the threat that having wild open concealed carrying in it were everybody can carry in New York is not going to lessen the threat against black people from law. Enforcement, in fact, is going to heighten. It saw in your thoughts on how I guess the presence of guns impacts police behavior you could. I can imagine if I were a cop, and I knew that Everyone I have an interaction with my a firearm. You that's gonna, make me more paranoid, that's going to change the interaction and, if you layer on top of that that some cops may be raised best just for systemic reasons, there likely to have more interactions with people of color yo. You use it easy to see how tragedies emerge they are. So are I'm curious about your thoughts about that situation and thus
What I see take them Linda Philander Castille which we spoke about earlier police officer. There said he said he had a gun. I was afraid I was afraid, or we take the killing of mere rice, the twelve year old in Cleveland Ohio, who is playing. himself in park with a toy gun now granted it didn't. Have the Orange Tipp wanted the said: hey, I'm a toy, but Ohio is of open, carry state and his open. Herring in the area where there's nobody else, they are so he's not threatening anybody. The police rolled right up on him and they shot him within two seconds and the officer who who pulled the trigger said we were afraid we were in danger. So that's that fear. That danger is always there. You add guns to it in.
takes it to a lethal level? So what struck by the Mafia act? This is a ball banning public carry of weapons in California in nineteen sixty seven signed by Governor Ronald Reagan, who is not only someone we think of is a big gun control advocate homage. Ashley named after a law makers, Don Mall furred, who was affair. Miss reactionary. You know the other thing that he was famous for is trying to ban protest, the Vietnam WAR on Berkeley Scap S. So what was go a guarded. Nineteen sixty seven that made these views conservative republicans decide that maybe they thought gun control is a good idea. So let me happening is that there was a massive police brutality happening in Oakland and that there was no accountability in the system. For that police
brutality, no matter how much african Americans wits to officials say get these folks off of us. We need decent policing and that just wasn't happening. So out of that arose the black Panther Party for Self Defense, led by huge Newton and Bobby Seale and one of their their key element, was that self defense peace. The Mark Panther Party has attracted strong national support from radicals and intellectuals, black and white, those openly advocate the use of guns against the police, claiming that they an attack, but only issued in self defense, Appoint disputed, I base area law enforcement agencies. They were going to police, the police so Huey Newton, who was a law school students he new, the the law ass- he knew California, is open, carry law, and so the Panthers with roll up
an arrest openly carrying their weapons, they knew what kinds of weapons to carry will cause not carry, they knew how to carry those weapons and they knew how far they had to stay away from the police as the police were making. These arrests are so being monitored like that, the police hated it absolutely hated and they would pull over the Panthers and try to arrest them for something, but they were always legally carry, and so the police ran to DAWN Montfort and say we need help. We need to make what the Panthers are doing ill legal because right now it's legal and offers like hey I'm there.
it started. Drafting the law with the help of the inner re, started drafting this Manfred ACT and Ronald Reagan as light as soon as you get that bill on my desk, I'm signing it, and so it was the way to turn the Panthers strategy to make that legal strategy illegal noticed, though, what they didn't do they didn't have legislation that would make the police accountable for the brutality that was raining down on that black community. So instead the issue How do we make the black Panthers for self defense illegal, so the culmination of the law? The black Panthers protest, was a protest at the state capital where many of them showed up. openly carrying firearms
We saw a bit of a repeat of that in Michigan last year, where a group of protesters who didn't like covered public health restrictions also showed up carrying a bunch of fire arms are the differences that the ones in Michigan were white? Yes annual. One thing that strikes me about Michigan response. Would they did eventually bear an open care? firearms in the capital, but you'd still bring a concealed rapid into the bishop, get capital and, like I am sympathetic to the California, all bakers indicted sixty seven who thought you. You know I do guns in my work place like that, I hold the same view about my own workplace. That's fine and I guess my question is why dont lawbreakers admission did have a better self protection in that than the ones in California way back in the day, and I really think
because again, blackness is the threat. Blackness is the danger, those who storm the capital in Michigan carrying those weapons up in the balcony No way you see these rifles in the balcony you like dying, but they were white and white. Isn't the default threat? You think about again the way Dylan Roof was treated. The way that Kyle written House was treated in Carson who was the seventeen year old who went to a protest. It Canosa, Wisconsin and gun down three men killing two of them and the cops did not register him as a threat white isn't the threat that the chief variable in the response to what happens at these capitals and whose carrying the weapons so soon? mention that Vienna re supported the them offered act back in the day, and I surely
grace is a huge part of that conversation, but I wonder if there is at another thread here which, in the end arrays you know Ok, now I guess is that the only way to stop a bad guy with a gun he's a good guy with a gun. Theirs is there's a turn against the use of the state to restrict gun violence, unity, the ideas you can rely on the state. To protect you, you have to rely on your own per So all I get your personal armaments to to do so, and I guess my quest It is, and maybe this can't be decoupled from the from the racial aspects, but How much of the inner raise turn is part of the broader conservative movements turn against the government, so much of the conservatives Anti statism is linked to raise. It is linked to the way that the state has been empowered
to bring about racial equality? So when you're seeing the Civil Rights act when you're seeing the Voting Rights ACT of you know, sixty four enough, sixty five year. Also seeing this this massive movement that had begun a bit earlier because it felt like the state was too powerful because the state was waiting in on the issue of racial equality. We saw that, for instance, in forty eight, with Truman's executive order de segregating the military, the backlash from that from the right
it was. You know this is anathema. What is the role of the state in doing this? When you had the state saying you have two disaggregate, your public schools are the. Do you get a rise of what the called movement conservatism, and so all of this this? This role of the state in racial equality is part of what is driving this conservative agenda. This anti state conservative agenda. You can't decouple it when you asked about the good guy with a gun that mantra. One of the things that I thought about was how african Americans have been the good guys with a gun and they ve been shot dead while trying to protect others. So we see that case with a mantle Bradford Junior in Alabama,
with Gmail rubber sin in Chicago, and it was with a cop off duty cop who was black in Saint Louis and he was shot by another officer while trying to apprehend someone. So this good guy with a gun thing also is inflected with anti blackness. Is it Paul the ball to have a United States that is simultaneously very pro gone rights, while all who being antiracist. You can We have a regime that very protective have gone right, that done we to negative consequences for people of color or these thing. Necessarily entwined with one another. The United States has not been willing to really fully engage in dismantling anti blackness. It has been
more willing to to lie to this. This massive arming of a small group of people who disproportionately have most of the privately owned weapons in this nation. The anti blackness, though, continues to permeate, and we see it in the backlash against the one thousand six hundred and nineteen project against critical race theory. In the storming of the school board meetings where it you don't want to teach divisive issues such as slavery. So we don't know how we got here and when we don't know how we got here while we're loading up guns and making them so like a text where you dont have to have any training, you turn out the lights, as you can just have a gun, we're not there. Yet we are so not there yet, and I think of it. This way are,
an ability to really have true gun safety laws is steeped in anti blackness. It is steeped in this fear that whites will be left defenceless if they are able to have their guns against this, so called Lord coming in taking their stuff. Taking everything that They value, and I look at a study by Jonathan Metal who wrote dying of whiteness, where he stood folks in Missouri who had suffered gun violence in their family in their self help group here king about God safety laws, never like absolutely not do have taken my gun, I'm not left fist? As with all those folks come in from Saint Louis trying to take everything that I own, and so when you think about sandy hook, we didn't get a response to sandy hook and we really should have.
because there's this fear of being left defenceless, defenceless against whom Congresswoman Lauren Bogart said, is because we're gonna be left defenceless against the gang bankers. The thugs and the drug dealers we know that that is short, hair dog whistles for african Americans. That's how that link just used in this society. So, having being pro gun and anti black, we are more. Programme that we are anti black. The chasm between those two is so wide that being pro gun, when blackness is the default thread in this society makes the precariousness of black life even more intense can, I understand, thank you so much for coming on. For this, I guess very intense conversation about race guns. Thank you so much for having a yet that's another episode of the weeds. Thanks for listening thanks to Joseph and Carol for being, my guess
Sophie will lawn produce. This episode, Libby now It is our editorial adviser. Amber hall, is boxes deputy editorial director for TA, I'm, you know Heizer, and the most dangerous branch will be back soon with an episode about the Supreme Court and the pandemic. Hither, its new orbital editor in chief of the virgin host of the votes cast in Dakota. The verge Turning tennis and resolve live in New York City twenty seven and twenty third with an epic today of it, of course, I'll be there with other notable journalist, virgin some incredible guess: immersive tech in our experiences, all they D, Jays and great New York food and tricks. For a limited time or offering vocs media contact network fans, one and fifty dollars off our standard tick go to the virtual com, such on the virtual tickets and enter promo code.
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Transcript generated on 2021-10-23.