Joseph Blocher & Darrell Miller | The Positive Second Amendment:  Faculty Author Celebration
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Joseph Blocher & Darrell Miller | The Positive Second Amendment: Faculty Author Celebration


FEMI CADMUS: So we’re going
to go ahead and get started. Hello, everyone. I am Femi Cadmus, and I’m the
director of the Goodson Law Library. I have been director for
just about two months now, so I’m a real newbie. I’m pleased to welcome
you to a faculty author celebration for the new book
by Professors Joseph Blocher and Darrell Miller, The
Positive Second Amendment: Rights, Regulation, and
the Future of Heller Now, you can find a copy of
their book in our library. We have a couple of copies. You can actually find it
in almost 100 libraries around the world. And last time I looked,
you could find it in the National Library of
Scotland, The Max Planck Institute library, and
the International Islamic University of Malaysia. So it’s all over the world. [APPLAUSE] If for any reason you can’t
find it in the library, you can get it on Amazon. And you can get it in
the Kindle version also. So buy it. Give a good review of this
book, because it’s a great book. Now, since 2015, the law
library and the office of dean have co-sponsored the faculty
author celebration series, and we’ve done many of them. And we want to do this to
celebrate and recognize selected faculty
book publications throughout the academic year. And I just want to say
thank you to those who’ve helped make this possible. Of course, our
co-sponsors, the dean’s office, our library
business manager, Sue Hicks, Jennifer Behrens, who is
our head of reference, and media services, who are
making sure that everything goes without a hitch today. So thank you all for being here. Now, today we’re going to
have leading the conversation with professors
Blocher and Miller our senior associate dean for
faculty and research, Dean Maggie Lemos. So please join me in
welcoming Dean Lemos right now as she introduces
Professors Blocher and Miller. [APPLAUSE] MARGARET LEMOS: Hi, everyone. Thanks for coming here today. We’re very lucky to have
Professors Miller and Blocher here to talk with us
about their new book. Both of them have written a
great deal about the Second Amendment before coming
together to write this book, and surely will
continue doing that. And so I think that
unequivocally makes Duke, like, the world capital in
expertise on gun rights and regulation,
which is cool for us. So today we’re going
to focus on the book, but I think also probably
talk more broadly about debates over gun
rights and regulation today, and what the Second Amendment
has to say about it. So the book starts by tracing
the history of gun regulation and gun rights in the US. Actually, it starts in
England, and then moves to the US colonies,
through the founding, out into the Wild West,
through the Civil War, the New Deal, the Civil Rights Era,
all the way up to today. And it shows that we’ve always
had gun regulation in the US, but also in a meaningful sense
have always had gun rights, even before 2008 when the
Supreme Court held in Heller for the first time that the
Second Amendment right to keep and bear arms protects
purely private purposes, like self-defense, and creates
an enforceable individual right. And so the bulk of
the book is devoted to taking that individual
right seriously as law– as positive constitutional law– and working through what
that means for gun regulation and gun rights today. Now, when I put it that way,
it sounds kind of obvious. And it’s certainly not
provocative at all for two law professors to look at a
provision of the Constitution and say, hey, that
looks like law. Let’s think about
it like lawyers. But I understand that in the
context of gun debate today, it is actually a non-obvious
and important and even kind of controversial move,
because in those debates the Constitution tends to be
thrown around a lot– well, not that, so the
Constitution does not tend to be thrown around
a lot, but references to the Constitution and
to the Second Amendment tend to be thrown around a
lot in kind of a slogany way, as opposed to as
real legal argument. And so trying to take
this seriously as law and make legal
arguments about it is, as I understand it,
a move in this field. But Joseph and Darrell will
be able to explain that far better than I can. So let me turn it over to them
and ask, why did you do this? [LAUGHTER] What was the motivation
for writing this book, and why did you think
it was necessary, either sort of in general
or right now in particular? JOSEPH BLOCHER: Let me take
first crack at that one, but let me also just start
by thanking everybody for being here. Thank you to the
office of the dean for cosponsoring this
event, and thanks especially to the Goodson Law Library not
only for cosponsoring this, but for helping bring
the book to fruition. Maggie mentioned the Wild
West part of our research, and I should single
out Jennifer here, who actually tracked down the
handwritten ordinances of Dodge City, Kansas which forbid
people from carrying guns into the city in
the 19th century. So we’re very, very grateful. Thank you so much to
everybody at the library. So to return to the question of
why this book, maybe especially given that Darrell
and I have been writing on this area since– I mean, even before Heller
was decided, but certainly for the last 10 years, sort
of spanning the life of what we might think of as the sort
of modern Second Amendment. We’ve engaged with
it both in solo authored work and together– lobby articles, op
eds, debates, briefs. And I think what we
found was there were just certain kinds of
arguments that we couldn’t make within
the confines of any of those genres. And so when we were asked
by Alex Tsesis, who’s the editor of this
Cambridge series, to contribute a book on
the Second Amendment, we jumped at it. And the goal was– as Maggie suggested– to
sketch out what it would really mean to address the Second
Amendment as a matter of law, which, again, maybe
doesn’t sound very radical, unless you spend much time
in the debate, in which case it’s answering or attempting
to answer pretty big questions. You know, we’re 10 years now
into this lifespan of what’s effectively a new
constitutional right, and there are obviously
massive disagreements about particular cases, whether
particular regulations do or do not conform to that right. But there are a deeper set of
disagreements that we’re really trying to get at here about what
counts as a legitimate Second Amendment argument–
like, what is the grammar of the discussion. And the goal of the book is
less to give particular answers to particular questions–
like, is an assault weapons ban constitutional– and
more to say, like, here’s how to go about that discussion
if you’re going to be using the language of the law. So I think that’s
what inspired it, and that’s what we’re
hoping to achieve with it. DARRELL A.H. MILLER: I
totally agree with that. I think the only thing I
would add sort of, you know, on a personal level– and it’s
a little bit of navel-gazing, but I’m an academic and so I get
engaged in that kind of stuff– is that our sense is this is
the first time in our lifetime that you see sort of an
individual right emerging in real time. There’s not too
many other areas I can think of off
the top of my head in which you’re basically
starting from scratch. It’s as a tabula rasa, at
least, on the federal level, in some sense. And as an academic,
it’s incredibly exciting to be able to sort of get in
there, roll up your sleeves, start working, thinking
through these ideas, where there’s not a
whole lot of other stuff to work through or against. And having an opportunity
to essentially be at the vanguard of
opening up an entire area of constitutional
research, being able to inaugurate a
field, is incredibly exciting for legal academics. And that’s, I
think, another part of the motivation of
doing this project, which is sort of more self-regarding
than sort of other-regarding. MARGARET LEMOS: So
other than the newness, are there things about
the Second Amendment that distinguish it from
other constitutional rights? So you both write about
other areas as well. Is the Second Amendment
weird in any way? [LAUGHTER] JOSEPH BLOCHER: I’ll answer
that, or take a crack at that, at least,
in terms of how is it different as a
scholar to engage with. Doctrinally, there’s all kinds
of differences, which we would be happy to discuss at length. But just as a scholarly
matter, there are things, I think, that are
different, or at least are exaggerated in this field
more than in some others that I work in. One is that the
scholarly debate, a bit like the gun
debate writ large, tends to push people
to the extremes. And people get sort of coded
in sort of a binary fashion as for or against the
right in a way that is I think less true
in some other areas of constitutional law. Like, when I’m on a panel
about federalism or the First Amendment or
something like that, I’m not usually asked are
you for or against it. Like, it’s not like, do you
believe in the First Amendment? It’s not like a
coherent question. Like, it doesn’t actually track. There’s differences
of opinion, like do you think Citizens United was
rightly decided, or whatever. But I’m regularly
asked, do you believe in the Second Amendment? Which is just not
the kind of thing that one is used to engaging. I think we hope that we’re
sort of turning the corner. And again, a goal of
the book is sort of turn the corner to the more– we think– interesting and
tractable set of questions, like what are your beliefs
about the Second Amendment? How does that map onto what
kinds of gun regulations you think are constitutional? But that binary part of
it, I think, is different. I think it’s also true that
there is a little more– again, as compared to
other areas that at least I write in– you know, I get
calls from people who have very strong
views on guns, and I don’t get that when
I write a First Amendment article. I don’t get an angry phone
call a lot of name calling and profanity. I get that when I write on guns. Like, they hit the– there’s
a three-minute limit, I guess, for our
voicemails here, and they regularly hit that and
then just getting kind of cut off. That’s different, and not
something I’m– you know, if I write something about
Wittgenstein and free speech theory, nobody gets exercised
about that in quite the same way. I could go on, but
that’s two at least that sort of stand out to me. MARGARET LEMOS: So
do you think it’s possible to make a dent in
that by writing about doctrine? I mean, is it a
fair critique to say that you’re sort of going
too deep into the woods by focusing on all this doctrine
and just sort of taking it as a given, instead of
manning different parts and trying to get
rid of all of it? [LAUGHTER] DARRELL A.H. MILLER:
Well, I mean, you know, we kind of think it’s
worth the effort. I think I speak
for both of us when we say we came to law
school, we became lawyers. We think that law has meaning,
that law is important, that law is
distinctive in some way from other types of
arguments or fields or areas of human endeavor. And we also have, I think, a
strong feeling that law really has an important
sort of disciplining function– that if
you’re going to traffic in constitutional
arguments and you’re going to traffic
in legal arguments, then you have to sort of
respect the terms of how you make those arguments. And notwithstanding the fact
that somebody can just sort of dismiss the priors and say,
I’m not talking about law, I’m talking about
God-given rights. I’m talking about
natural rights. I’m talking about
something else. Our point is, well,
at least by clarifying the terms of the debate
and saying, all right, are you engaging in
a legal argument? This is how we engage
in legal argument. That that is worthwhile
in and of itself. JOSEPH BLOCHER: Yeah. And I think, in
addition, there is sort of a sense of, like,
sufficient unto the day or the problems thereof. There is a lot happening in
courts right now with regard to the Second Amendment. In fact, another
thing that’s maybe not unique, but
incredibly notable, in Second Amendment
land is that there are fundamental, open questions
that courts are confronting that I think are even
more– this is going back to the tabula rasa point–
that are sort of even more open field than we encounter,
at least in other areas where we write. And so we have found that
courts, scholars, litigants are eager to learn something. Like, they’re approaching
open questions like, you know, are undocumented immigrants
entitled to rights under the Second Amendment? Are they the people that the
Second Amendment comprehends? What about these
3D-printed guns? Are those arms covered
by the Second Amendment? You don’t get that
answer by staring at the 27 words
of the Amendment, or by reading Heller, which
gives remarkably little guidance as to those kinds
of practical questions. So to the degree that
we’re court-focused, I actually think
that’s a fair point– that a lot of this is
trying to explicate what happens in courts and
trying to maybe reflect back to courts what they’re doing. But that’s sort of worth
the candle, I think, for us. If we make a dent
on that, I think that will feel very
successful on that. MARGARET LEMOS: Do you
find that courts are all going in wildly
different directions, or are they kind of playing
from the same playbook? JOSEPH BLOCHER: It’s
a good question. I think that for the most part–
and maybe this is actually also an answer to why we write this
book now as opposed to earlier. We couldn’t have written
this book in 2008 or 2009, because then courts
really were pointing in all kinds of
different directions– right after Heller,
unclear really what the basic sort of
mechanisms of doctrine would have been. After 10 years and
more than 1,000– because there have been more
than 1,000 post-Heller Second Amendment challenges– the dust
started to settle a fair bit. And to overgeneralize
a little bit, the Federal Courts
of Appeals anyway have now, as of the First
Circuit’s decision, unanimously endorsed what they
call the two part test, the first part of which
is a threshold question. Is the Second Amendment
implicated at all? Because some gun-related
activity just does not register as
Second Amendment activity, like concealed carrying,
carrying by felons, by people adjudicated
mentally ill. They just don’t even get to
invoke the Second Amendment, in the same way that libel and
child pornography are just kind of carved out of First
Amendment coverage. So that’s step one. And then, step two is, well,
depending on the burden that’s placed on the rights
holder and the government interests involved and how
close the regulation comes to the core interests
of self-defense, you apply some kinds
of means-end scrutiny. That’s a broad description, but
they basically kind of circle together around
that, and you see them using essentially the
same sort of machinery. That said, there are
big– and maybe you could– the text, history, and
tradition is a big alternative. DARRELL A.H. MILLER: Right. So there are outliers
or dissenters of the two-part test. The most prominent one is
an opinion in what’s known as Heller Two by then judge, now
Justice Kavanaugh who said that the two-part test is– at least the second
part is not legitimate, that it involves some
sort of balancing of rights or interests,
and that some sort of text history and tradition
and working through analogy is the way that you do Second
Amendment adjudication, which would make it different than
most other individual rights I’ve written on. The closest analog
within the Bill of Rights would be the Seventh
Amendment in terms of that kind of approach. But I think, taking a
piece of what Joseph said, I think we’re in agreement
that, in some senses, the two-part test
is accomplishing what any kind of constitutional
mechanism– adjudicative mechanism– has to do. It’s got to figure out
what is the territory of actual
constitutional interest. Not everything– not every
question that comes up– is in the constitutional domain. And so bank robbers
who pull a gun and say, give me your money–
yeah, they’re speaking, and they have a gun,
but that doesn’t mean that these are
constitutional questions. So some things are
just off the table. And then, once you find that
something’s on the table, the typical way of
approaching a problem is that everything is
protected up to the maximum. There’s all kinds of
ways of tailoring. And my research, when I did the
piece on the Seventh Amendment, just to sort of prove that
even if you put something like a text, history, and
tradition label on something, these two kinds of tasks
have to be performed through some sort of mechanism. And the two-part
test just happens to be one that I think the
courts are familiar with. It’s used in a lot
of other areas, and they sort of
adopted it off the shelf as just the workaday
tools that all judges use. MARGARET LEMOS: So that gets me
back to the weirdness question. You have a chapter on what you
call the grammar of the Second Amendment. And I’m curious whether the
grammar you find courts using or that you think
they should be using is the same here as
it is in other areas. But what it sounds,
from what you’ve said, is that courts got
this new animal and they weren’t sure
what to do with it. And so, you know, kind
of understandably, they drew tools that they were
familiar with from other areas and saw how they would
apply to this new thing. Is that roughly
what has happened? Or a different way
of asking that is like, what happened
between 2008 and 2009 when everyone was
all over the place? And then, when
they came together, what made them come
together in some way? JOSEPH BLOCHER: You want
to say about the grammar? DARRELL A.H. MILLER: Yeah. So I think it’s true,
that the grammar is– the grammar comes from Philip
Bobbitt, who famously wrote it 30 years ago or more– you know, these sort
of different tools– these modes of
Constitutional argument. I think what might be
different about our book and about the
Second Amendment is he’s writing his book about
Constitutional law in general, not on a specific issue. And it’s interesting to
see which kinds of these– he calls the modalities– you know, which terms of art
and which terms of grammar get accentuated. How do they work
with each other? So one of the
things, for example, that’s happening right now in
Second Amendment litigation is, what do you do when you have
a text, history, or tradition analysis, but it’s running
up against some sort of precedential aspect
from Heller, itself? You know, which
one of these things in a hierarchical
system of adjudication is supposed to take precedent? And so that’s something
that, in the sense that, yes, the
tools are the same, but it’s really interesting to
sort of think about and read and watch how these
different modalities get used in actual cases, especially
after, you know, in some senses the sort of creation of
different sort of categories of constitutional methodology
which drive persons with certain
methodological commitments to some types of tools, or some
types of grammars as opposed to others. JOSEPH BLOCHER: Yeah. And just to amplify that,
maybe, and give an example, too. You know, for
anybody not familiar, Bobbitt’s basic
argument there is there are six modalities
of constitutional argument. This is the language in
which we speak when we speak about the Constitution. Arguments not employing
these languages are not constitutional
arguments. It’s not a valid constitutional
argument to say, I like guns or I dislike guns, therefore
this gun regulation is unconstitutional
or constitutional. It is valid to say,
arguing from tradition, we have traditionally
kept guns out of the hands of
dangerous people. Therefore, it’s constitutional
to keep them out of the hands of, let’s
say, people who’ve been convicted of a felony now. That’s the sort of mode. And that’s what we’re
trying to do in the book, is less less point to outcomes
and more point to the grammar. That’s what we call the
language of the argument, and sort of put those
sort of tools out there. To answer the
question about what’s different here or potentially
tricky, I mean, one is that, as opposed to Bobbitt
who says there’s no hierarchy among these six. These are just the different
modalities one can use. There’s no one that
predominates over the other. Descriptively speaking, at
least in Second Amendment cases, what we’re seeing
is at least some get more prominence here
than they do in other areas. History is, I think, you know,
as Darrell is suggesting, is the big one. I think partly that is
because Heller is– largely, it’s because Heller
is the self-styled as an originalist
opinion, and many people have read it as
sort of requiring– and this is how now Justice
Kavanaugh reads it– as requiring an
approach which is solely based on text, history,
and tradition– that is not even strict scrutiny, but
just solely by analogy to historical sources. That is a tricky
thing to do when you are adjudicating a
right which, for more than two centuries, was inert. Like, another
modality is precedent. There is effectively no
Second Amendment precedent, certainly from the Supreme
Court, on this private purposes right until 2008. There’s not a federal
case that strikes down a gun law on Second
Amendment grounds for more than two centuries. So that history–
like, the precedent– sort of came in much later
in the game than the history, unlike in many
other areas where– take the First
Amendment as an example. Some people say the First
Amendment theory and doctrine started when Holmes wrote his
dissent in Abrams in 1919. That’s at least a century of
precedent and history kind of growing up and
informing one another, and it’s harder to do that
in Second Amendment cases. I mean, hundreds of Second
Amendment cases since Heller have involved a challenge to the
federal law which bans felons from possessing weapons, right? That’s a law which in its first
form was passed in the 1930s and then was brought
into the 1960s, right? Does that count as a
traditional or historic law? It’s less than a century old. Most courts have said yes,
but according to what metric? Those are really hard
questions going back to that issue of,
the courts maybe have some general agreement
about methodology, but there’s some
really fundamental, hard questions about what
makes a law longstanding, for example. MARGARET LEMOS: So
kind of moving back a step of generality, what’s
the basic theory of the Second Amendment that courts are using? Is it just self-defense, or is
it more complicated than that? DARRELL A.H. MILLER: Well,
all the opinions sort of take Heller’s statement
that Second Amendment– the core reason why you
have the Second Amendment is about self-defense. But I think all of them,
either expressly or implicitly, sort of understand that
can’t be an organizing theoretical principle for
all of the Second Amendment. And let me give you some
sort of concrete examples which we use in the book. I think we’re all
in some agreement here that if you are a
felon or if you’re even an incarcerated person,
you have not surrendered your right to self-defense. That is, if somebody
is attacking you, you would have a right–
some sort of moral rights, and certainly maybe
even some legal rights– to defend yourself
from an attack. But almost nobody is out
there saying that when they start tossing
beds in the cells and find homemade knives
and stuff that there’s some sort of Second Amendment
issue anywhere in that place, no matter how central
self-defense is to the Second Amendment. And so our point in the book
is that Second Amendment adjudication or Second
Amendment theory can’t just stop at self-defense. Breyer famously says,
it’s the beginning of an inquiry, not the end of
one, in his dissent in Heller. And so we’ve tried
to sort of expand on, what do we mean by it? If self-defense isn’t going to
be sufficient for an organizing principle, what could be? And sort of taking a little
piece from our familiarity with the first. Amendment and in
the conversations, we came down to three theories
that could sort of unpack the self-defense idea. One would be something
about not self-defense implicit, but something
more like safety. So when somebody like
Wayne Lapierre of the NRA says, the only thing that
stops a good bad guy is a good guy with a gun, he’s kind
of talking about what we think of as a sort of a marketplace. We say it’s like a
marketplace of violence. So his idea is that
good uses of guns will end up outweighing
bad uses of guns, and then everybody
will be better off, and that it’s really
about safety– what we’re trying to achieve
with the Second Amendment. The second one would be
something like autonomy. This is that there is
just something inherent. I can have a gun for
any reason or no reason. I just have a right to do it. And in fact, there are some
surveys in which people answer, the reason why I have
a gun or want a gun is because of the
Second Amendment. It’s just, that’s it. I have no other reason. And it sort of plays
out a little bit in areas where it seemed totally
counterintuitive, like persons that really it would be hard
to imagine that they would actually have the ability to use
the gun for any other purpose other than their own
sense of autonomy. So there are cases in which
blind people have sought– no, seriously–
like, blind people have sought rights to
carry a pistol, or to hunt, or to do other kinds of things. So there’s sort of
this autonomy aspect. And the third one
is the one that tends to percolate around
in the historical sources when we’re talking about
discussions about standing armies and things at the
time of ratification, and also populate a lot of
probably the high level, most inflammatory kinds of
rhetoric, which is, it’s an anti-tyranny provision. It’s what Kaczynski once
called a doomsday provision– that you have guns to rescue
the people from tyranny. And we see these as
sort of the three animating potential theories
that at least go further than just self-defense
implicit, or as a way of sort of organizing what the Second
Amendment is all about. JOSEPH BLOCHER: And
I’ll just quickly tie this back to Heller,
and maybe to the scholarship going forward. So the single
paragraph of Heller that has been central
to post-Heller segmental litigation is what’s
sometimes called the exceptions paragraph, or a paragraph
in which the court says, of course, nothing
we say here is meant to cast doubt on
longstanding prohibitions such as– and then to
give some examples. But they include, among other
things, bans on possession by felons– as Darrell was just talking
about– the mentally ill, bans on dangerous and unusual
weapons, and bans on guns in sensitive places like
government buildings, right? So those four exceptions–
and there are others– but those four describe
a lot of gun regulation– at least arguably describe
a lot of the gun regulation that we have in the
country right now. The trick is making those jibe
with any underlying theory of the Second Amendment
that makes sense. So if, for example– and this is the sort of
felon, incarcerated felon, or you know, person who
served his or her time. It’s very hard to say,
like, if the underlying purpose of the right
is self-defense, why not have felons? Or why do mentally
ill people and felons get carved out of coverage? They may be able to have special
needs for self-defense, right? It’s not a right that they lose. Self-defenses isn’t
a right they lose. They say, OK, maybe
then it’s really about prevention of tyranny. Well, if it’s about prevention
of tyranny, what kind of guns are you going to need? Dangerous and
unusual ones, right? And where are you going
to need to take them? DARRELL A.H. MILLER:
Government buildings. JOSEPH BLOCHER: Government
buildings, right? [LAUGHTER] So there’s no–
it’s hard to make it map on to the theory in
any kind of coherent way, and so that’s the sort
of tie-in to Heller and why we think this is tricky. And then, going forward,
the sort of table setting that we hope maybe
this chapter of the book in particular helps to
achieve is that, for a century now– and again, we could
peg it to Holmes and Abrams, but there are others. You know, eight years later,
Brandeis says the same thing, and Whitney, Zecheriah
Chafee, you know, people writing in
the First Amendment started a century-long
scholarly judicial conversation about what free
speech is all about. And the answers
to those questions point in different
directions doctrinally. Like, if you think free speech
is about a marketplace of ideas in which, over time,
the truth will out, well then that’s one theory. But it’s different than saying,
in the sort of [INAUDIBLE] sort of approach, that
it’s about democracy, in which the
lodestar isn’t truth but political participation
or democratic legitimation or something like that. If it’s about autonomy,
individual expression, or self-realization, that
points in yet another direction. It’s hard to maybe
justify as First Amendment harder, and justify First
Amendment protection of art under a truth theory
or a democracy theory. It’s much easier under
an autonomy theory. Those all point in different
directions in concrete ways. And we think– we hope– that the Second Amendment
can have a similarly engaged discussion going forward. If it’s about
personal safety, that points in one direction
with regard to which arms and people are covered. If it’s about
prevention of tyranny, that points in
another direction. If it’s about just
self-actualization and sort of autonomy full
stop, that points in yet another direction. So this is mostly
recap, but just that’s what we’re aiming to do,
I guess, in that chapter. MARGARET LEMOS: So is
no one doing that now? Are courts not trying to come
up with a kind of general theory and/or academic [INAUDIBLE]? JOSEPH BLOCHER: I
think that courts tend to just cite the
Heller self-defense– this is the central component,
self-defense is the core– and miss this. Scholars I think
are largely still, to the degree that there’s
scholarly discussion happening about theories of
the Second Amendment, they’re still mired in
the pre-Heller debate about whether it’s
about organized militia or private purposes. And so again, this is
going back to the question of, are you for for or
against the Second Amendment? Still, 10 years
down the road, when we appear on panels
or on debates, we get asked questions
often about, well, what about the
well-regulated militia? Isn’t that what it’s all about? And we have to say, look,
that is a matter of doctrine, at least, we’re past that. But no, there’s not a
lot of theory about, after Heller, what is the
private purposes right about, if not militia? DARRELL A.H. MILLER: And I
think implicitly, you know, even though lower
courts do acknowledge the sort of self-defense is
the central component, the core of the right, they all
sort of understand that, in some senses, that is
not the driving force for the doctrinal analysis. Because if that was
true, that would mean that any assertion of
self-defense by any person would trigger some sort
of strict scrutiny, and you would have
to find, is there no other way that you can
basically do this kind of thing without impacting the
core of the right? And that’s why so
much of the first step in this sort of two-part test
ends up getting elaborated. It’s self-defense, except
for felons who might actually really need guns,
because that’s already accepted out from the
Heller decision already. JOSEPH BLOCHER: I think there’s
one other point emphasize. It’s when courts or court
scholars– anybody– invokes sort of
self-defense as if that’s the same as the right
to keep and bear arms, that’s making an error, as well. Because this is a
right, essentially, to have a means on hand should
the need for self-defense ever arise, right? To carry around a gun is not
to exercise self-defense. That’s to be prepared
in order to exercise it should the need come up. Self-defense doctrine is–
as those of you who’ve been through crime by now know– has all kinds of
things built into it– proportionality, necessity,
you know, the sort of need. You don’t just get to
choose your own perceived threats, right? And that’s different
than the right that’s asserted with the
Second Amendment, which doesn’t have all that
kind of stuff built in. There’s a way in which, if
Second Amendment doctrine actually followed where
self-defense doctrine is, it might actually be more
limited than the right that’s being asserted here. So even when people are just
focusing on self-defense, I don’t think yet,
at least, there’s really been a thinking through
of what that would mean. Fortunately, most
gun owners never have to use their
guns in self-defense. It’s a weird fit between that
interest and the underlying right. MARGARET LEMOS: So
what are the issues that are percolating
through the courts now, and what do you see 10
years out or 20 years out as the big question? DARRELL A.H. MILLER: So I
think in the short term, I think we feel pretty
confident there’ll be another certain ramp
probably within three years, would you say? JOSEPH BLOCHER:
Yeah, about that. DARRELL A.H. MILLER: Yeah. So public carry is
an important issue. Is there a right to carry
a gun, and in what form, outside the home? Because Heller’s
opinion itself was just limited to Richard
Heller, who wanted to have a pistol in his house
for self-defense in the home. Then, there’s the question
about, OK, what kind of arms? The whole issue about,
can you put restrictions on magazine capacities? Can you put restrictions
on the types of guns that somebody would be able
to carry– long guns, assault rifles, that kind of thing? That’s sort of the short-term. I think those are the two
big short-term issues, and likely to be resolved within
the next five years or so. Longer-term, I think there’s
all kinds of really interesting issues– well, we think they
are interesting– about the Second Amendment
and how it ends up getting adopted to new kinds
of technologies. So what happens if you
end up making smart guns, and the guns don’t fire
unless the actual owner– what does that mean for
the Second Amendment? What about things
that aren’t really arms in the sense of, like, a
pistol or some sort of firearm, but tools– technological tools
that one would use for some sort of
self-defense means? Whether we’re talking
about software or malware or whatever kinds of things
that we might think of, do those fall within the
Second Amendment right to keep and bear
arms register or not? And then, I think
the other thing that is going to be
important going forward– and we’re seeing it all the
time– is how Second Amendment doctrine and Second
Amendment rights start to impact other types
of rights, whether we’re talking about the right
to exclude people off of your property. Some states have
forced entry laws that say that if
you’re an employer, you have to allow somebody
onto your property, or at least into the parking
lot with a with a pistol. And you can’t ask them
whether they have it there. There’s those kinds of laws that
the Second Amendment themselves doesn’t require, but these are
sort of pro-gun laws of various kinds– issues about taking your
guns to a public protest. Is that both a First Amendment
and a Second Amendment issue? And then, there’s all the
issues about the intersection of other areas of scholarly
study with this area. What do we think
about race and guns? Who can actually be seen
as a legitimate protector, a private citizen
protector of the community? How does the issue of the
private use of violence and the empowerment of the
private use of violence through a right to
keep and bear arms interact with things like
race, disparate impact, gender? I think those are all the
really interesting issues down the road. JOSEPH BLOCHER: I agree. MARGARET LEMOS: So
how does someone get better answers
to those questions from reading your book? [LAUGHTER] DARRELL A.H. MILLER: Wow. JOSEPH BLOCHER: We’ve got all
the answers, right in the book. MARGARET LEMOS: I
mean, one, I think, obvious answer is more scholars
should be writing about this. And it’s definitely my– I mean, this is all
fascinating, and it’s weird that more people
haven’t been tackling this in a scholarly way. But so, I thought about
those questions yesterday, and then I read your book. How have my answers improved? DARRELL A.H. MILLER:
Well, I mean, I think our hope is that in some
sense we’re giving a framework and a kind of architecture for
fitting in what you might think is an important issue with
what we’ve said in the book. So you don’t have to buy
our three theories of what the Second Amendment is for,
but kind of like where the First Amendment was– again,
we keep going back to where First Amendment was in
the middle of the 20th century. You know, once people
start writing about them, then you have
something to push back. If the Miller-Blocher
thesis of safety of the marketplace of violence
is wrong for these reasons, and here’s how
something they haven’t thought about impacts that. But you know, I
think it’s useful if we start developing
a kind of field, developing a kind of
vocabulary for theorizing about the right in which other
people that may not really think of themselves as really
interested in Second Amendment stuff will end up saying,
actually, this is really relevant to the things
that I’m thinking about or writing about. And I never really thought that. I thought it was about
these sort of fringey people that write on guns. But actually, it’s really
relevant to the stuff that I’m thinking about too. JOSEPH BLOCHER: Yeah,
I think that’s right. And I mean, if you’re going to
pick an example like an assault weapons ban, for example–
as Darrell mentioned, this is a very prominent area
of Second Amendment litigation– these sort of class
of arms claims, they’re called– bans on
high-capacity magazines or assault weapons. If you’re confronted
with one of those, your first instinct might
be to look for the cases. Like, what’s the precedent say? And of course, we discuss
where the kind of precedent is. But you’ll find– as many courts
and litigants and scholars already find– you’re just going to
run out pretty quickly. There’s not a definitive
statement, yes these are, yes these aren’t. Many courts assume,
yeah, OK, they’re arms, but for the most
part, they can’t be regulated because
they’re not so useful for self-defense reasons. Hopefully in the process
of reading the book, you kind of figure
out, like, OK, here’s my assumptions about why they
should or shouldn’t be covered. Like, I’m a person who believes
self-defense is it really important and that
guns are really important to self-defense. Are these the kinds of
guns that are really important for that reason? Maybe that’ll sort of
help illustrate that. If you think instead
the Second Amendment is about prevention
of tyranny and not really so much about
self-defense, well then maybe the constitutional protection
of an AR-15 registers is a much more important
issue where handguns are sort of the quintessential
self-defense weapon, AR-15s are the quintessential
tyranny defense weapon, maybe– something like that. Then, at least, we’ve clarified
the terms of the debate. We know kind of where we’re
coming from with regard to your underlying theory of
what the Second Amendment is all about. Hopefully, we can
show people what’s hard about historical
reasoning, right? One of the things we
talk about in the book, and which came up in
the Heller litigation both at the Court of Appeals
and at the Supreme Court, is the difficulty of saying
any kind of weapon today is a lineal descendent of
any weapon that existed at the time of the founding. That’s a lot of
analogical work that’s being done in a
statement like that, because guns don’t have progeny. Like, they don’t they don’t
replicate in the way– so to it to say that an AR-15
is the lineal descendant of a musket is to make
all kinds of assumptions about functionality, and
functionality for what purposes. Hopefully, we can put
those questions forward, even if we don’t provide
a definitive answer to whether we think a particular
law is constitutional. MARGARET LEMOS: So what about
more popular and political versions of these debates? How would you like to
see those changing, if everyone reads your book? DARRELL A.H. MILLER:
Well, I want to eliminate the you’re against my right
to self-defense counter to somebody that says about
any sort of gun regulation, because I think that’s– again, that’s a misnomer. These things are related, but
they’re not the same thing. So if anything, I
would kind of hope that somebody reading this book
would say, oh, you’re right. Self-defense is not coterminous
with the Second Amendment or the right to
keep and bear arms. These are two different things. And that might be the wedge into
sort of thinking a little bit and in a little more nuanced
fashion about these other kinds of other issues. I guess the other one would
be that, to the extent that the book is read by
persons other than academics, it will equip people that are,
I think, kind of yearning for– like, what is this right? What are we talking
about when we’re talking about these things? You know, I’m hearing
a lot of yelling, but I’m not getting a
lot of content here. And that would help
in some sense refine, and in some sense help
the political discourse, so that when you have
somebody say to somebody else, you wouldn’t ban the Bible so
why would you ban an AR-15, that somebody would feel– would be able to say, I
hear what you’re saying, but you’re not talking
in a legal register. Or you’re not talking
really about law, you’re making a
rhetorical argument. And it’s a powerful one,
but it’s rhetorical. So let’s talk about,
well, why do you think that banning the Bible and
banning an AR-15 are related? What makes them related? And that would help, I
think, in some sense, maybe the political discourse. JOSEPH BLOCHER:
I guess I’ll just add one thing to that,
which is that I think we hope to break down
some of the binaries that we’ve been describing here. That often I hear
people talk like, I oppose gun regulation
because I support the Second Amendment, or vise versa. And if there’s a
theme from the book, it’s that that is
just a false choice. That has historically not been
the way we’ve treated things. That’s not what Heller requires. You know, the vast
majority of Americans support what they understand
the central holding in Heller to be– that is, the individual
right to keep and bear arms for private purposes. Three-quarters of Americans
supported that decision when it was handed down– both political parties. It was handed down in the
middle of a political campaign. Obama and McCain both put
out statements supporting that part of the decision. And also, strong
majorities of Americans support tightening up
some gun regulations, including, for example,
expanding the system of background checks. If you put the
overlap there, that means there’s got to be a pretty
big part of the country which believes both in an individual
right to keep and bear arms, and certain kinds of
reasonable regulations. And that’s, I think,
what we want to show, is that the Constitution
doesn’t take that off the table. It doesn’t force you to choose
between one or the other. I mean, the example
we start the book with is, the last time
there was a big push to expand the system of
federal background checks. This is happening right
now, but the last time there’s a big push was in
the wake of the Sandy Hook Massacre. And you may remember the
Manchin-Toomey Amendment, which was proposed. It would have not
made universal, but at least expanded the system
of background checks, which requires people at
certain purchases to check to make sure
the buyer of a gun is not prohibited because
he or she is a felon or adjudicated mentally
ill, or something like that. Wildly popular
proposal– I mean, polling at the time had
it, in some of them, more than 90% of
Americans supported this– 75% of gun owners, 74%
of NRA members, right? Just unimaginable to
find so much agreement on a particular kind of
legislation, let alone one involving guns. It doesn’t even get
a vote in the Senate. NRA leadership opposes
it vociferously, and we are like,
that’s fascinating. How does that not happen? How does a piece of legislation
that popular not get through? Certainly an interest
group story there, but you can actually
look at the polling. What were the reasons of the
10% or so who opposed this? The biggest reason
people gave was, it would violate the right
to keep and bear arms. And that is, in
one way or another, a claim about
constitutional law. And it’s we think a
misunderstanding of what the– if it’s a claim
about actual law, what the actual law requires. If we could do anything to
break that down and avoid it happening, let’s say,
next time, then we’d be very satisfied. MARGARET LEMOS: So let me
ask a different question, and then I’ll stop
and open it up to questions from our audience. What was it like
to work together? DARRELL A.H. MILLER: Great. JOSEPH BLOCHER: It
was a lot of fun. Yeah. DARRELL A.H. MILLER:
Yeah, we work together– we write together really well. He writes a lot
faster than I do. But I think we have a good sort
of relationship in terms of, I’ll write something, he’ll
pull out the purple passages and sort of make
it sound better. I’ll read his and
I’ll say, I’m not sure that this is the quite the
metaphor that you want to use. Let’s try these other things. So you know, both at the big,
architectural level of just, we have the sort of same style. Let’s plan what
we’re going to do. Let’s outline it. Let’s make sure that we
have that down and tight, and we get feedback from
our colleagues who were very generous in this project. And then, in the
actual writing, I think we have very compatible
sort of writing styles. I’d never co-authored
with anybody before, so it was great. JOSEPH BLOCHER: It’s
been a lot of fun. I mean, this is not the
first time we’ve done it. Like, of our articles,
so we sort of knew a little bit
what to expect. But a book’s a
different project, and this is the first
time we’d really done something like that. I mean, I couldn’t agree more. It was just– I mean, in as much as part
of the point of the book is to try to inspire a
scholarly discussion, it’s nice that it
was essentially the outgrowth of one. I mean, this is essentially
us talking to each other and debating. And we agree on a lot of things. We disagree on some others. But it all kind of washes
through, hopefully, in the pages. And hopefully other
people will disagree or agree with us going forward. MARGARET LEMOS: Jamie Boyle JAMIE BOYLE: Fascinating. Love the book. As you know, I’ve read
many versions of the book. So you’ve written the grammar
of the Second Amendment– I’m thinking of Strunk
and Wesson, I guess, is the subtitle? [LAUGHTER] Has Justice
Kavanaugh’s grammar– what’s your legal
writing markup? Is he committing a neologism? Is this, like,
split infinitives– no one cares about them
anymore except those of us who think it should be to go
boldly and not to boldly go? Is this, you know,
an innovative move? Is it just an archaic
move that is being reintroduced into the language? What’s his grammar like? JOSEPH BLOCHER: That’s a
very interesting question. And I want to reserve
judgment until we see more. But we do have a pretty
good data point on this, because he wrote a solo authored
dissent on the D.C. Circuit, presumably speaking only for
himself and his own views. And again, to reiterate
his stated view in Heller too– again, in dissent–
is that the Second Amendment must be interpreted solely
with regard to text, history, and tradition. He chalks that up partly to
what he thinks Heller requires. I think that’s a misreading of
Heller, so negative mark there. And most judges,
I would say, are in disagreement with
Kavanaugh on that, as well. He also seems to
think that that is a constraining move with
regard to judicial discretion and power. And for some the reasons
that we mentioned earlier, I think that is also incorrect. I think to try to argue by
analogy to two centuries ago without the sort
of mediating influence of precedent connecting
today and then is it just a recipe for
describing, as he does in that case,
a law as a ban that other people would
describe as a restriction, as the majority in that case
describes as a restriction. There is a searching there for
kind of rules over standards, and sort of basic sort of
doctrinal machinery, which is not all governed by
appetites about the right to keep and bear arms. It has to do with
appetites of what you’d like to see in doctrine. We don’t say a whole lot here
about rules versus standards and that kind of
thing, but I’ll say that in an area like this
one where there is relatively little precedent, I think we may
see more doctrinal innovation than in other areas. This actually came up at
the oral argument, as well– I’m gesturing in the direction
of Walter Dellinger, who argued the case– came up in the at the oral
argument as well Chief Justice Roberts said
something like, well, I don’t know why we would
endorse the tiers of scrutiny or anything else. That’s just sort of baggage that
the First Amendment picked up. It’s nothing in the Constitution
that says we have to do that. We could go with
something totally new. And Kavanaugh seems to
be sort of doing that. That doesn’t strike me as, you
know, judicial self-restraint in the same way that maybe
adopting well-tested standards another way. How he’s going to resolve a
particular case when it comes or front, I would keep
my mind open to it. DARRELL A.H. MILLER: Yeah. The only thing I
would add to that is, I think Kavanaugh’s
approach is– there’s a couple of things. One is, it would make the
Second Amendment adjudication in some sense special, right? Most other rights are
adjudicated through a kind of, you know, we’ve got to
figure out what’s covered, and then we use some sort
of tiers of scrutiny, however it’s sort
of denominated. Going that route would actually
make the Second Amendment, in some senses, an outlier, and
make it more like the Seventh Amendment. And even then, the
Seventh Amendment has things at the edges. And the reality is, if
Kavanaugh would prevail with a sort of strict text,
history, and tradition analysis, I feel fairly strongly
that it would have to operate on both sides of the equation. That is, if you’re
going to start talking about lineal
descendants of muskets, then you’re going
to have to start doing the same
type of enterprise with regard to restrictions,
because federal prohibitions on firearms on airplanes
didn’t exist until the 1960s. And so if you’re
going to start talking about lineal
descendants, analogs with the muskets of
the 18th century, then you start having to
talk about, well, you know, there were prohibitions on
putting guns on stage coaches, or traveling armed
with other persons. And this is the sort of
analogy they want to play. And at some point, you have
to sort of figure out what– as [INAUDIBLE] says–
what you’re what’s your rule of relevance? What makes one analog
relevant to another? And it would be a completely
different type of reasoning in some sense, but it could very
well be the kind that we get. I just don’t know
how many votes there would be for that’s
thoroughgoing sort of history approach to the
Second Amendment on the court. JOSEPH BLOCHER: Yeah, and just
one tiny little thing just to emphasize that the
disagreement here, or the problem I see
with the approach is not results-oriented. It’s not a question of which one
is going to allow or disallow more gun regulation. In fact, Kavanaugh
says, I think rightly, in his Heller two dissent
that a history-based approach, depending on how you apply
it– and this is the depending part that’s really big– might
actually uphold a lot more gun regulation than, for
example, the application of strict scrutiny. And again, this is something we
try to get clear in the book. There is a long tradition
in history of gun regulation in the United States. Depending on how you
do your analogies, that could open the door to
a lot of gun regulations. It’s not about his view is
too broad or too narrow, it’s really just that
the methodology, I think, has some built-in problems. MARGARET LEMOS: Curt CURTIS BRADLEY: So you talk
about historical analogies, like, and tradition. Is there any room at all in the
doctrine, either the way it is or way you’d like it to be, for
work by empiricists studying what is promoting safety
in certain contexts or not, or how guns are actually
used in particular settings? I can imagine all
sorts of works– minor things that might
make a big difference in suicide rates. Is any of that relevant,
do the gun rights kind of pro-Heller crowd think,
once you go down that road, it’s a pure regulatory issue,
and you’ve kind of given up the right? JOSEPH BLOCHER: So to answer
you sort of in reverse order, yes, yes, yes, yes, yes. On the last part, there
are definitely voices– and Kavanaugh’s is one. He’s not the only
one– who say that, if you start going
down that road, then you’re doing
interest balancing. And Heller says
you can’t do that. In practice, though– especially
going back to the second step of that two-part test
we mentioned earlier– courts absolutely are receptive
to empirical evidence, social science evidence, on
the kinds of disputed questions that Darrell was
describing earlier. I’ll just take
public carry as one. So as Darrell said, one of
the biggest battlegrounds in Second Amendment
litigation right now is the constitutionality
of what are usually called good cause restrictions. In other words, if you want
to carry a gun in public, you have to get a license. In order to get a license,
you have to show good cause. There is a lot of empirical
study that’s been done on whether allowing easier
access to guns in that way– more public carrying–
reduces crime or doesn’t. You know, there’s
studies on either side. John Donahue at Stanford’s
done some of the, I think, really best. But– and this is going back
to maybe Maggie’s first point about Duke’s strengths
in this area– we’re exceptionally lucky
to be at a university which, outside this law school,
has some of the leading people doing work on this. Phil Cook across the street,
Kristin Goss across the street, Jeff Swanson down in psychiatry
have done amazing work on not just public carry, but you
mentioned sort of in passing the question of suicides– a fantastically
important question, and doesn’t get as much
attention in the gun debate as it should. So I’ll just emphasize, the
majority of American gun deaths are suicide deaths,
not homicides. And they are concentrated
disproportionately among older white
men in rural areas. They’re not the kinds
of gun violence victims people tend to see on
the news or think about, but anything that can be done
to reach that problem, I think, is relevant to the
constitutionality of a– at least if you’re doing a
kind of means-end scrutiny. DARRELL A.H. MILLER: And I
think it kind of depends on whether the entry point
for that kind of data is. You know, my thinking is– I mean, right now that
data tends to come in at the tailoring stage. There’s not a
necessarily a reason that it can’t be sort of
invited in by reference to whatever historical
regulations existed, right? There’s tons of regulations
about guns in cities. This is, as Joseph has written,
this division between the urban and the rural is longstanding. Well, it’s not just arbitrary. We didn’t just say,
cities are great. It’s because cities are crowded. There’s things that
go on in cities where there is more danger present. And so that in some senses
becomes a kind of entry point for, all right, what
we’re really worried about is the use of guns in crowded
places that harms people. So if that’s sort of part
of what the Second Amendment architecture or ground
looks like, then we can bring in the sort
of criminological data or whatever that would say,
this is why it’s dangerous. Yes, it is, in fact, dangerous. It’s not just dangerous
in the 13th century. It’s dangerous now. MARGARET LEMOS: Neil NEIL SIEGEL: Just a
point of information– Justice Kavanaugh generally
describes his approach to constitutional interpretation
as consisting of text, originalism, and tradition. He said it at his
confirmation hearings. He says it in separation
of powers cases. He says it, certainly, is
substantive due process cases. And the reason why– I’m not sure if you
disagree, Joseph. I thought you said it’s not
really about whether it’s outcome-driven, there are
just problems with the method. The reason why it ends
up being outcome-driven is that the argument
from tradition is deeply-rooted
tradition in Glucksburg. It’s as if the 20th century
never happened, right? The analysis stops at the
end of the 19th century. What happens in
the 20th century? For the first time in 1910 or
1920, a majority of Americans are living in urban areas. There develops
densely-populated, urban high-crime areas in which the
weapon of choice for criminals is handguns. We develop weapons
that are easily in circulation in the
possession of people that can kill many people in
a very short amount of time. So if your tradition is
Glucksburg, 18th, 19th century, it’s going to decide
a lot of cases. If your determination
is Obergefell, dynamic, evolving
tradition, in which we look at gun control over the
course of the 20th century in response to problems that
19th-century Americans– let alone the founders–
never could have imagined, then you have a very
different analysis. So one way of putting this in
the form of a question for you folks, what is the grammar
of the Second Amendment? What are the modalities
of interpretation that are most conducive, taking
into account not just what happened long ago,
but the problems that are in existence today that the
kind of folks that Kavanaugh is going to be concerned
with couldn’t even have imagined, let alone
have viewed with respect? JOSEPH BLOCHER: That’s
a great question. And I should say, the
modality we emphasize– which is not one of Babbitt’s– is that of analogy. That’s the modality
which we think is actually doing a lot of
work, I think for the reasons that you’re giving. When I say that
the debate doesn’t have to be one of scope,
I mean that if someone looks at the same
history, they might draw totally different
conclusions about whether we did have, for example, an
analogous gun regulation at the founding– even
if it is Glucksburg level and you have to
go that far back. You can look at what
the gun regulations on the books in places
like Philadelphia, New York, and Boston– not that many
cities of that size, but those are the
three big ones. And they had gun regulations
in the late 1700s that wold make The Brady Center blush. I mean, it was like, you
couldn’t have a loaded gun in some of these cities. This was incredible. And we mentioned the Wild
West example earlier. The Dodge City
ordinance that Jennifer helped us track down
literally prevented people from bringing guns
into the city– again, back in the 19th century. And we’re looking
pretty far back. How far Heller requires
us to look back is the question
which I don’t think that Kavanaugh
answers in Heller two, or that Heller
answers for itself. It says longstanding,
but if we’re going to look at
bans on possession by felons, for, example,
as I mentioned earlier, the first federal law is 1930s. It’s expanded to the 1960s. Most courts have been satisfied. Yeah, that’s good enough. That’s more in the,
you know, maybe in between sort of Glucksburg
and a Obergefell in terms of what timeline is needed. But maybe that’s
because they’re just really scared what would
happen if we struck down the federal law banning felons
from possessing firearms. My point is just that,
if you say it’s history– as text, history, and tradition
in this area or any other– you’re often just
pushing the question. This is where I think we agree. You’re just pushing the question
to, like, OK, how much history? Whose history? When? You know, what does it mean? And there’s a lot
of discretion that’s going to come in at that stage. We may give, hopefully, some
guidance on at least what hard about that, even if we
don’t totally resolve it. MARGARET LEMOS: I think we have
time for one more question. AUDIENCE: When you
guys are talking about the underlying
theories that people used to talk about
the Second Amendment, is there any aspect of sort
of national identity as being important to Americans uniquely,
in some sense of defending strongly the Second
Amendment as they see it? DARRELL A.H. MILLER: I
think that we sort of tuck that within the
idea of autonomy– that there is some sort of
identity production about guns, about who can have guns. I mean, it plays out very much
in the regulatory environment of prohibitions on
guns for freedmen, for slaves, prohibitions
on selling guns to Native Americans,
for example. Even back to things
like the Declaration of Right, which specifically
carves out Protestants and having rights. At the same time that
Protestants are sort of said, you have rights to bear
arms, William and Mary come in and have an act for
the disarmament of papists, as they called them. And so they’re making Catholics
take special types of oaths to get guns. So we sort of think about
this identity production, and in some senses that kind
of equality aspect of it, and sort of baked into what
we would think of as sort of autonomy interests. JOSEPH BLOCHER: That’s right. That’s a great question. MARGARET LEMOS: Thanks everyone. Please join me in thanking– [APPLAUSE]

One Comment

  • William Simmons

    IN a constitutional republic based on natural rights, the right to LIFE is a fundamental, unalienable right. IF the right to life means anything it means being able to use reasonable tools in defense of such life. Thus, the 2nd amendment is the same as the right to life – a right I have everywhere I go and therefore a right anywhere I am which means I should be allowed to carry my self-defense tools with me where ever I am. Unalienable rights are not up to a vote of the majority. Just like one's Liberty is not up to a popular vote which means 99% of the people can not vote to make 1% of the people slaves. Same for the right to Life which is inherent in the second amendment.

    Restated, a democracy is three wolves and a lamb voting on what/who to eat for dinner. Under a constitutional republic, the three wolves do not have the right to vote on who to eat for dinner and the lamb and wolves have a right to life and the lamb has a right to have and carry the tools needed to keep the wolves honest.

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