Not be infringed the new assaults on the Second Amendment. They constantly try to abridge it. Thinking of Something Else. Shall not be infringed the new assaults on the Second Amendment. Obviously Second Amendment shaded contentious political policy debates. I would like to keep this on constitutional grounds. Lets just start with the text of the amendment itself. Taking out my National Constitution center pocket constitution the Second Amendment reads 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. You borrow part of the text of the amendment in the title of your book. Talk a little bit about that. The wording of the amendment is important. Shall not be infringed the new assaults on the Second Amendment is important because the Second Amendment does not grant the people of the United States the right to keep and bear arms. It says that right shall not be infringed which is a recognition of the fact the right of selfdefense which is what it really is preexists the american republic, preexists the writing of the constitution, many states including pennsylvania had in their constitutions prior to the writing of the american constitution the bill of rights already had an equivalent language and it goes back, the right of selfdefense goes back to the old testament, the talmud and further is an important question because these rights, talk about the founders passout from natural law, these are not rights granted by the new government, these are rights, the right to keep and bear arms, the right to a free press, the right to speak, all these things were rights they believed were inherent in the human condition which would have to prevent the government from infringing in the case of the right to bear arms. That part of the amendment and the way it is written is important. Host so much vibrant scholarship around constitutionalism just the opinion in the mcdonald case, the lives on state constitutional provisions to argue individual rights are deeply embedded in the american constitution. The whole question of the meaning of the Second Amendment was not studied until relatively recently. There were no decisions on it. I went to law school a long time ago and you would have thought that didnt exist, just passed over. It wasnt until relatively recently that people began looking at the history. In a large sense Justice Scalias theory of what the constitution means and men had great bearing because it drove people back to the district and as they studied the history they realized this common wisdom that the second american Second Amendment didnt mean much was wrong and as scholarship develops, at one point the folks who wanted a more restrictive view of the amendment went to harvard, he got back and said unfortunately the founders didnt, as we look at this we realize it is what the Supreme Court said it was in the heller case. Host for the framers of the original founding, also after the civil war and reconstruction, talk about why this value was deemed fundamental . Worthy of protection . It is in the american dna. This is a nation that was founded because citizens were armed. We sometimes forget the confrontation at the concord bridge came about because the british decided to confiscate the ammunition. The guns were in private hands, the ammunition was in a storehouse. If they could get at the powder they could disarm the american people. That resulted in the shot heard around the world in the revolutionary war. The settling of the west, all the things that went on in butte americans with a real sense that this is an important part not just of our history but what we are. The Second Amendment came to symbolize more than guns, the right of selfdefense, it came to symbolize a certain view of the responsibility of people to defend themselves and families and communities to rely on themselves, not on government. The nra which i headed for two years was founded after the civil war. Interestingly because it was founded by several Union Officers in new york because it was their view the civil war lasted two years, at least, longer than it should have because Union Soldiers were not good with firearms. The reason for that is the union was recruiting and later drafting firstgeneration immigrants from europe in newly industrialized cities of the north. Many of these people had no firearm tradition, citizens werent allowed to have firearms. In many cases, a Union Soldier didnt get a chance to fire a gun until he was in battle. A confederate soldier is the equal of three Union Soldiers but the union had five soldiers for every one of them. Phil sheridan and Ulysses S Grant from the nra. It was their belief that the tradition was being lost because of the changing population and new americans as well as those been here but generations appreciated and understood firearms. The Second Amendment scholarship, other professors affiliated with one more progressive. And the student of both of them in law school. And routing the fundamental nature of the individual the experience of newly freed slaves after the civil war. The history of gun control as opposed to gun rights came across in several ways, the first in control legislation came about after the civil war, it is another thing to give them guns. In the south in particular all these laws established, the newly freed black americans and part of the Civil Rights Movement from then on involved with firearms is why condoleezza rice, former secretary of state was asked about the Second Amendment. I am an absolutist on that question. Neighbors stood on the porch around her house with shotguns and rifles in the clan march. That was the first wave of gun control legislation. Then we had the banning of automatic weapons, visibility of the fellows with machine guns, then the crime bulge and riots of the late 60s which altered another wave of gun control and during that whole period things changed, attitudes changed because the Second Amendment was not only not mentioned but uncontroversial up to the 60s and the nra reflected that. John kennedy, roosevelt, members of the nra and other gun groups, there were no lobbyists, no disagreement to speak of. What became known as the cultural war came out in the 60s, all of us in, not a shift of opinion but urban areas, it was antiSecond Amendment. We had a situation in which in 1968 the Johnson Administration put through congress the most restrictive firearms laws adopted in this country called the gun control act of 1968 and the polls showed most people supported gun control. A year or so later after johnson left office, some of the data, some of the research, one of the motivators for johnson, opposition to the Second Amendment was beginning to become a liberal left mantra and one of the motivating factors, they were upset about it with him, it didnt work but he tried. A year later Richard Nixons attorney general eliot richardson, the Justice Department, and manufactured sales of all handguns, everyone around at that time, if some of us were asked by 2015 the Supreme Court would have certified the reading of the Second Amendment to take and bear arms. They carried concealed handgun from their own protection we would have laughed. And democratic powerful congressman, came to us and said you can train all the people you want, provide people technical information, do all the things you have been doing for 100 years, no one is going to have a gun. Unless you step up and defend the Second Amendment will not mean anything to anybody. That changed things in the 1970s. Since then everything has been reversed so that today, those of us who are strong Second Amendment believers were encouraged by a couple recent polls during the campaign that the least favored firearms on youngest americans, there has been real change in the way people view these rights and the Second Amendment, one of the things that is interesting, since it is bill of rights day a couple years ago Mitch Daniels who was then governor of indiana gave a speech in which he said more peoples attention is directed to the bill of rights by the National Rifle association than any other group or people who turn to it. They read the whole thing and have greater appreciation for the importance of the constitution because particularly gun owners, Second Amendment friendly which comes up to in our calculations 55 million americans, base their belief in defense of their rights the bill of rights and that is important not just for the Second Amendment but the constitution, the bill of rights. One of the criticisms, the nras, to approach the amendment is rooted in the preparatory clause. Read that, put it on the table and hear the response to that. Here is the preparatory clause. The security of a free state, the gun rights are tethered. Dangerous to take what a word means in 2015 and assume the word means the same in the 1780s. That question was exhaustively researched by scholars and addressed by the court. The militia met everybody, met the people. It could have just said the people. In one sense the logic of that argument, the socalled collective rights argument, the argument that was made in hell are against prevailing position was the Second Amendment does not in any way guarantee anybody has the right to a firearm for any purpose. They are only guaranteed states can have a militia. That made no logical sense historically or in the constructive sense and the sort of mirror would used in the states. Of the militia was there to protect the federal government why a militia before there was a federal government. What basically happens, this is where the scholarship changed attitudes was this was an argument about words that didnt matter in the historic context, the word i suggested earlier do matter. This is a great time to explicitly put heller and mcdonald on the table. One of the odd things about the Second Amendment. There werent any decisions. The first 200 years, just starting with heller can you give us background who the challengers were . Very briefly what the courts said . Innocence the district of columbia banned the possession of firearms in a meaningful way for selfdefense. Dick heller, the plaintiff, was a Security Guard who carried a gun and lived in a dangerous neighborhood and start the right to have a gun in his home to protect himself. That was turned down. That went to the United StatesSupreme Court. The decision was the Second Amendment does in fact guarantee, protect the right of the american citizen in his home to have a handgun for selfdefense purposes and that was the first time the court had said that. It was a fundamental right guaranteed by the bill of rights and the district of columbia tried to get around that in various ways, but that only applied to federal outlays because the district of columbia is not a state. The second case which was in some ways even more important was the mcdonald case. When you go to law school and read an appellate case you dont know what it is about. About the whole thing. I sort of got really interested in that kind of thing some years ago when it was part of her book later. Amity slays wrote a book about this, a big case that struck down as different nra during the depression. You would think this was a huge deal if you are reading the appellate case and three orthodox butchers in new york government says cant allow their customers to pick up a different perspective on what is this about . To humanize it. The mcdonald case, which was in the legal sense about whether the Second Amendment rights should be incorporated in other parts of the bill of rights as it would apply in the federal government but what it was about was otis mcdonald. Otis mcdonald was a black chicagoan who at the age of 14, the son of sharecropper from louisiana had migrated north. There was a lot of that in those days, he got a job, didnt have a high school education, got a job as a janitor, went off to the war, fought in the war, came back, bought a decent house, got his ged eventually, became head of the janitorial union locally. His kids were grown, his wife had died and his neighborhood which had been a pretty decent neighborhood when he bought the house in the 1950s became the home of gangbangers and drug dealers so he applied to the city of chicago for the right to keep a gun to protect himself and they turned him down and he took that to the Supreme Court. He was also a student of history. He went to the Supreme Court because of his right and the right of other people, but he knew where those laws came from. And it was argued before the Supreme Court, represented after the civil war. The court found there was a big dispute what course to take, isnt relevant here but once that happened, the right became live. I liken it to the First Amendment in 1920, the right to free speech, portion of the First Amendment. We knew it existed. There were not many Court Decisions up to that point. So you knew the bill of rights guaranteed the right to free speech but what did that mean . As Justice Scalia noted, every fundamental right is reasonable to restrictions. In the case of free speech, the outlandish supreme example, just because you have the right to free speech doesnt mean you can yell fire in a crowded theater. Can you license a speech, the Second Amendment today is where the First Amendment was in the 1920s it is a fundamental right. What does that mean . There are cases winding their way through the courts that will lay out the parameters of what is or is not allowed in terms of reasonable restrictions. One of the problems we face legally is in the heller case, there was a complete and. The court didnt have to specifically, some would argue didnt happen specifically, to address the question of what level of scrutiny courts had to apply. Maybe they shouldnt have had to, the courts are supposed to look at restrictions with what we call strict scrutiny. Because they didnt have to answer that question, lower parts of the country say i never said you had to do that so we are not going to do it. There are cases, assault weapons bands and semi automatic, that is reasonable in the constitution, the other is the question of what are known, what may issue concealed carry permits, and they look at the right to carry a firearm for self protection, what they call constitutional kerry states, there are 11 of those. Estate filled with armed socialists. That view is if you are not a prohibited person, a felon, theres a list of people who are not allowed firearms. You dont have to get a permit. Most states are challenged, they are states in which if you apply for a permit to carry a firearm, the sheriff makes the decision if they dont want to grant it they have a reason. The burden is on the government to tell you you cant exercise the right. And may issue states the burden is on you to demonstrate to the government that you are to be able to carry a gun and they dont have to prove anything so they deny it. Usually what happens is if you are from new york and a billionaire you get a gun and if not you dont get one. The legal right to bear is what gives the government the right to force a citizen to try to prove the citizen has the right to exercise the right guaranteed by the constitution. Courts have come down differently. This will take a long time for the courts to sort of straighten out. In maryland the governor backed off of guncontrol packages. The governor added the price of a handgun would go to an additional 500 or so. He backed off because the legislators from the minority congressman said this is a case where you think people who live in Montgomery County can afford this but we cant. They forced him to back off but that is similar to speech restrictions in some ways. What kind of attacks can you put on the right and when is it infringement of that queue host putting meat on the bones, comparing the two analyses lower courts may make, strict scrutiny versus something less than that. Take and assault weapon, the most familiar. Can you talk about how this strict scrutiny looks like versus Something Else . It is even more than that. If you read the heller decision, and Justice Scalia, lets just tell them what they can or cant do. There is one thing you cannot do. You cannot restrict or ban a firearm that is widely owned and commonly used for legal purposes. 5 Million People own ar 15s. It is a semi automatic weapon owned by 5 million americans, the most used firearm for competitions, most used for rifle training, used for hunting, illegal in some states because too small caliber for dear so