The Second Amendment & The Supreme Court
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The Second Amendment & The Supreme Court


JOSEPH BLOCHER: All right,
good afternoon, everybody, and welcome. My name is Joseph Blocher,
and along with Daryl Miller, I am a faculty co-director of
the Center for Firearms Law. Before we get started, I also
want to introduce our new executive director sitting
in the front row here, Jake Charles, also a Duke
Law alum/ good person to talk to about the work of the
center or clerking and lives in academia and so
on and so forth. We’re really happy to see
so many of you here today and to have a chance to talk
about the past, present, and future of gun rights and
regulation in the United States and specifically focusing
on the Second Amendment and the Supreme Court. We have a truly
awesome lineup here, myself excluded, to
discuss that topic with. And when discuss
I really mean it. We’re going to– we’re not
going to formal presentations up here. We’re just going to have
some Q and A and discussion. We have lots of time for
questions at the end, so be sure to go
ahead and get those– get those ready. I want to very quickly
introduce the rest of the panel here and then start
the conversation off. On my far left, we’re joined
by Sandy Levinson, who is the Garwood
Centennial Chair in Law at the University
of Texas Law School. He is without any doubt one of
the preeminent constitutional thinkers of our times, author
of more than 400 articles and commentaries,
a dozen books– one of which actually I see
Walter has a copy of right here. WALTER DELLINGER: May I
do a slight infomercial? JOSEPH BLOCHER: Please do. If you don’t, I will. WALTER DELLINGER: This
is Written in Stone by Sandy Levinson. 20 years ago, he looked
at the issue of monuments and memorials and what their
meaning was and the interplay, and now he has at the request
of Duke University Press done a new edition. It is just out this fall, a
new edition of Written in Stone that takes account of all
of the recent controversies. The cover is the Statue of
Robert E. Lee being removed from in New Orleans,
the giant statue, and Sandy has
assessed [INAUDIBLE].. And he’s going to speak
at 4:00 today and have a colloquium on
memorials and monuments and the names of
buildings and colleges. And he’ll do that at four
o’clock at some room. JOSEPH BLOCHER: 3171, which will
also have snacks and drinks. You’ll notice is actually
an introduction of a theme that Sandy writes
something and then 10, 20, 30 years later it becomes front
and center for everybody else. He got there first. That’s one example. Another one we’ll
talk about and maybe relevant to the discussion
we’re about to have is that exactly 30 years
ago Sandy published what is arguably the most
influential and most cited piece of Second
Amendment scholarship ever written at least
in the modern era, a piece called The
Embarrassing Second Amendment, which we’ll certainly have
some time to talk about. To my immediate left here
is our own Walter Dellinger, the Douglas Maggs
Emeritus Professor here at the law school
well-known to all of you I’m sure. In addition to being a
preeminent scholar here at the law school
for many decades, he is also a legendary appellate
litigator and government lawyer, Head of the
Office of Legal Counsel, acting Solicitor General
during the Clinton years, and of course very close to home
for the topic of this panel. He represented the
District of Columbia in district of
Columbia versus Heller. So, many thanks to both of them
for being here, and in addition to thanks to all of you. And one final thanks
actually, before I get out of the way, which is a
thanks to the Supreme Court who, after we
scheduled this panel, granted cert a Second
Amendment case. We had not anticipated that. It’s been a long time since
the court has heard a Second Amendment challenge, but after
we organized Sandy’s visit, the justices agreed to hear
a case called New York Rifle and Pistol Association, which
will get a chance to talk about here today as well. To get us started though,
I think let’s maybe start a little farther back. We could pick up the
story really anywhere but, 30 years ago is a
pretty good time. In 1989, Sandy published
in the Yale Law Journal this article, the Embarrassing
Second Amendment, which as you were saying just before
the panel started, will be the thing that
probably, at least in your scholarly obituary,
is one of your major– will be listed as one of
your major achievements and contributions. I wonder if you could just say
a bit about what inspired it, what the state of Second
Amendment law and scholarship was then, and what you
argued in the article. SANDY LEVINSON: The inspiration
was, in a sense kind of misleadlingly easy. I was invited to participate
in the program at Williams College on the Bicentennial
Bill of Rights. And I had taught First Amendment
and really had nothing new to say about First Amendment. Wasn’t particularly
interested in delving further into the law of regulating
billboards as against leaflets or the increasingly nominalistic
case law of the First Amendment. And realized that
I’ve always been kind of vaguely interested in
the Second Amendment, largely what was it doing there? And so, I always
accept invitations, and I said, you know, I’ll be
happy to come to Williamstown. My daughter was then
attending Williams. And whether I’d write something
on the Second Amendment. So I did, and found it
really, really interesting, and thought it was
worth writing up. How it got into the
Yale Law Journal also is an
interesting back story because I was informed later
than what put me over the top, in terms of acceptance, was
an accompanying piece by Wendy Brown, which was kind of an
anecdote about being somewhere, camping in a wilderness
area, and maybe her car died or something like that. And she actually got
help from somebody who was clearly an NRA member. And part of it was a
very interesting story about her suspicions of
this guy who then turned out to be a friend in need. And so, they wanted that,
and in order to publish that, they published mine. And it says a lot, I
think, about the way the legal academy
works that for better and for worse, especially
30 years ago, it’s very pedigree driven. So the identical
piece could have been published in literally
hundreds of other places and basically
gotten no attention. It’s the fact that it was the
Yale Law Journal that got it the attention and
probably the fact that I’m a political liberal
teaching at a relatively elite law school. So you can’t ignore
those aspects in addition to whatever intellectual
strengths and weaknesses, because there wasn’t much that
was original in the piece. What I did was to read
some of the literature, say this is interesting. I think I do have something to
say about what makes the Second Amendment an embarrassment
to political liberals who generally are Bill
of Rights oriented and then want to pretend that
the Second Amendment isn’t there. So you know, so I’ll say,
one of the things that was really interesting is
what is it doing there? And I do think that
the explanation has to do with a theory of
a right to resistance against an oppressive
government. The chief opposition
to the Constitution was led by people who correctly
viewed the 1787 constitution as creating a consolidated
national government that was a threat to the kind of
federalism they new and loved and that [INAUDIBLE] still
likes to defend, on occasion. [LAUGHTER] And that’s what they were
thinking of with regard to right to bear arms. I’m sure we’ll talk about
Heller in a few minutes, but one of the reasons I
really continue basically to love Scalia’s opinion,
though not the result, is that he turns
the Second Amendment into a liberal amendment
about individual rights and individual self-defense. And this is to align the much
more ominous and interesting background in 17th, 18th
century civic Republican thought and the right of the
people to overthrow what they believed,
rightly or wrongly, to be a tyrannical government. So that’s a longer
answer than you wanted, but that’s the background. I was lucky. If Wendy hadn’t
submitted her piece, who knows where it would
have been published and if anybody
ever would read it. WALTER DELLINGER:
No Sandy, no Heller. [LAUGHTER] SANDY LEVINSON: No, no, no. JOSEPH BLOCHER: Another
theme we’ll come back to. Let me say one word on
that though quickly Sandy and get it back to you
before we get to Heller. I mean, I think it–
we probably shouldn’t understate how original the
substance of the article was. There were people like
Don Cates who’d written an article somewhat like yours. There’s some themes maybe
before, but what you did was original. And the landscape against which
Sandy was writing at the time was one in which there are no
Second Amendment cases of note endorsing this individual
rights to keep and bear arms view or lead to [INAUDIBLE]
really for that matter. There’s bits and
pieces in the cases which you excavate pretty well. But the scholarship is all
but either advocacy or dead at the time, and that
really did kind of change. So I wonder if you
could say, before we talk about how the courts
will eventually approach that question, how your argument
was received by those sort of– those liberal professors
at elite institutions that you’re talking about. SANDY LEVINSON: Most of my
friends and family member were appalled by the article. The consensus at the time was
that Chief Justice Berger, otherwise not
particularly viewed as a source of great wisdom
of constitutional meaning, in an interview in
Parade Magazine, also not usually viewed
as a great source of academic insight
had pronounced the NRA’s views on
Second Amendment to be a fraud
against the public. And that was quite often
quoted by impressive people and impressive venues
as pretty much right. So my piece was an
embarrassment insofar as it suggested that there– actually without
particularly applauding the NRA’s view of history,
because for reasons we can get into, I think the
NRA is much too liberal– classically liberal in its view,
whereas what really interests me is the civic Republican. Let’s overthrow an oppressive
government view, which for obvious reasons is much
less likely to gain purchase in the general court
of public opinion than one saying that
it’s all about the right to protect yourself against
a criminal in your own home. I think if I had a
comparative advantage, it’s that I had gotten a PhD
before going to law school, and I was interested
in political theory. I think it’s just a truth
that most people who had written about
the Second Amendment, certainly up to that point,
were not particularly interested in political theory,
though they certainly were interested in
excavating for, basically, advocacy uses, certain documents
of 18th century thought. But what interests me– if
there was anything original in the essay was actually to
take issue with Max Weber, who had defined the state
analytically as possessing monopoly over the means of
violence, the legitimate use of the means of violence. And it seems to me that
the most interesting thing about classical Civic
Republican thought is that it rejected
that view of the state, because the means of violence
were to be legitimately held, in some sense, by we the people
who could, as a collectivity, to quote Lin-Manuel
Miranda, rise up against an oppressive
government. I think that Weber
was a German Statist, and that the Anglo-American
political tradition is anti-Statist, and
the Second Amendment is an especially interesting
way of getting at that reality. WALTER DELLINGER: Let me say
a word about Sandy’s article. It had an enormous impact,
the fact that it’s not just that Sandy was seen
as politically liberal, and the University of Texas,
and publishers from the Yale Law Journal, but he was also held
in incredibly high regard, even as a relatively young
professor at that time. His casebook on constitutional
law with Paul Brest of Stanford was one that I immediately
used, and I thought it the best constitutional law
casebook I’ve ever seen. There was this influential
liberal who said, hey, liberals are embarrassed
by the Second Amendment, because they’re not
reading it, and they’re not taking it seriously. I was struck on rereading
it, Sandy, in the wee hours of the
morning, that you’re quite cautious about not being
definitive about what you think the final best view is. What the article really says is
that liberals are not grappling with the Second Amendment. They’re not addressing
these issues and is making the
argument that they should, because there is a
strong case to be made for that kind
of individual right and a right against tyranny
that is being ignored. I do remember someone at
the time saying that there’s a short answer to
Sandy’s argument, the short version was that if
liberals interpreted the Second Amendment with the same
method they interpret the rest of the
Constitution, there’d be Harvard Law
professors arguing that every individual
had a right to a government-funded
god on demand. SANDY LEVINSON: That’s true. JOSEPH BLOCHER: Another marker
of the inference is that– I won’t say it’s all
causal, but in the decades after the embarrassing
Second Amendment, you saw other prominent
scholars, the sort of Laurence Tribes and Akhil Amars
of the world come around to a view that
recognize, not exactly the civic Republican ideal
that Sandy’s describing, but something like it. The Department of
Justice announces for the first time
in 2000 or 2001 that it’s endorsing some
view of the individual right to keep and bear arms that is
a right that’s not limited just to folks serving in
an organized militia. So if we fast forward a
little bit from there, it’s 20 years now
after the article, and we’re in what–
so Fall of 2007. I should say, full
disclosure here, I was working for Walter
at O’Melveny and Myers. And Walter asked me, because
he had a case coming up, what I knew about the
Second Amendment, which was an easy question to answer. It wasn’t taught in law
schools at the time. There were no real federal
reported cases of note, but Walter– if we
fast forward a bit– if you could say what the
state of play was then. We had this case then called
Parker working its way up through the DC Circuit. WALTER DELLINGER:
It’s interesting, because we went from the
background against which Sandy was writing that the Second
Amendment was dismissed in 1939 by unanimous Supreme
Court in US versus Miller saying only rights
that are related have a relationship to the
effectiveness of the militia are covered by the amendment. We have had a really relentless
public relations campaign that shows how we can influence,
so that by the time I came to argue Hill, it was
seen as an uphill argument when the really only precedent
was a unanimous Supreme Court decision in our favor– [INTERPOSING VOICES] SANDY LEVINSON: –by
James McReynolds. WALTER DELLINGER: By that
damn liberal [INAUDIBLE].. It shows you how the
tides of public opinion– and I think it’s true with
causes on the liberal side as well, but this is
the single greatest example of public opinion
influencing judges, a fellow society,
which I often spoke, almost every year had
[INAUDIBLE] the right to keep and bear arms. It sort of became part of
the discourse of the people that wanted to become
judges and justices. We have agreed to be– the case was being handled
by the Corporation Counsel for the District of Columbia. The Court of Appeals
for the DC Circuit had struck down the
district’s prohibition on the possession of
handguns in the district. We planned for what was to be
our argued that, in particular, that his right to possess
a gun in his own home was protected by the Second. And then he won
in the DC Circuit in a fairly sweeping
and muscular Second Amendment on steroids opinion
by my judge Lawrence Silverman. So we agreed as
a pro bono matter to be co-counsel and
help the City argue the case of the Supreme Court. That year the
Corporation Counsel had a professor in residence,
the very, very great Alan Morrisson who has often
taught at Stanford Law School, and Georgetown, and others. Alan is a great
Supreme Court advocate. He and I argued the Line Item
Veto case against each other when I was in the
Solicitor General’s office. This is an interesting
story about law practice, because we helped
out on the briefing, and that was maybe
Joseph’s responsibility on the merits, briefing. But not long before the
scheduled argument, Alan– this is all public– Alan had a falling out
with the Cooperation Counsel over a footnote from
which neither back down. Alan either quit or was fired,
so they were without a counsel, and the Washington Post was
to write a big editorial about how the district
had handled the case. At that point, the
Cooperation Counsel called and asked if
I would argue it. And I had at Joseph
those two other cases to argue in a four-week period. I’m on an energy regulation
case, and a $5 billion Exxon Valdez case. JOSEPH BLOCHER: You know
the Exxon case probably from remedies or torts. This was, at the
time, the largest– WALTER DELLINGER: I
had both, and this was going to drop right
in the middle, I think, of those arguments,
so there was going to be scant
preparation time when I was in a scoreless
tie with Joseph about how much we collectively
knew about the Second Amendment. I do recall I had one
class scene setting that has to do with how much public
attention this thing got, and I think the argument
was on a Tuesday– possibly Monday, but I
think it was a Tuesday. Sunday afternoon, I was
in the office preparing, and I decided to turn on
the local news at 6:00 to see the sports
scores of the day. And that news led
with a reporter live at the Supreme
Court where sleeping bags were lined up a day and a
half in advance to get into– and I thought, I’ve
got to turn off the TV, and go back to preparing. I welcome this opportunity. First, to be reacquainted
with Sandy’s scholarship, but also to go back
and look at Heller. I sort of read the opinion
with one eye closed, but I’ve refused
all opportunities to speak about Heller or Second
Amendment issues ever since. Yesterday afternoon, I
listened to the oral argument, usually available on oyez.com– oyez.org– O-Y-E-Z.org. All the arguments are available. And it wasn’t nearly
as bad as I remembered. As they said, with
one exception, we made all the points
we needed to make. The one exception was the
state constitutional provisions at the time where a colleague
had done a binder of the state constitutional provisions, for
something that I could look at as a tertiary thing,
and it turned out Stevens asked about it,
and thought it important, and knew a lot more about it
than either I– fortunately, none of the other counsel
knew much about that either on the other side
that even Paul Clement. JOSEPH BLOCHER: I should
say, one of the things that was interesting
about the oral argument– or getting ready
for it, anyway– was that because there
wasn’t any precedent coming from the justices,
it was very hard, I thought, at least, to guess
where they were going to be. The oral argument in some
sense was the big reveal. It’s not as if they had– First Amendment, you can predict
where they’re going to go. On this, you base it on how
they’ve ruled on other ones. That morning really
was, well, what’s Justice Kennedy’s first
question going to be. And I’m not sure I’ve
even told you this, but that morning when all those
campers were out there in front of the Supreme Court, I
was waiting with, I think, the mayor and counsel
for you to come. Walter travels to a court on
bicycle, which I did not know. And we were sitting in
the downstairs getting a cup of coffee or
something, and we’re like, where is our lawyer. Walter pulls up on
a bicycle, takes off the helmet, strides into court. Can you say a bit more about
what the actual experience of argument was? It’s rare we get a chance
to actually talk about it. WALTER DELLINGER:
Yeah, I’m trying to decide whether to do a
little bit of the substance to set up the Kennedy
question, but when you don’t know where the
court is going to come from, since everybody in the
1939 case was long dead, it just hits you
when Kennedy asked me a question that I thought
got the history so completely backwards. I just wanted to say, let’s
just leave early for lunch. I’m just wasting time here. That was the sense. I think you can hear me
sigh in the audio recording. But let me say just a little
bit about the merits, which I don’t think are close. First of all, there
were, at the time of the founding, three
different kinds of discourse that were going on around guns. One was the militia and the need
to preserve the state militias. And therefore the need for
them to have access to guns– the militia right– what Sandy calls the
individual-liberty right, the libertarian view– that possession for your
own personal purposes including self-defense is very
much part of the discourse as well. And the third is the
one that fascinates Sandy the most because in his
deep soul he’s a revolutionary. He wants a new
Constitutional Convention. That’s another. [LAUGHTER] The third discourse
is the use of guns to be available
against tyranny– so for the resistance against
governmental oppression. And I think what makes it
difficult to decide what the Second Amendment was
about is that you can pluck from all three of these
different discourses that are going on. And so one of my
bottom-line arguments would be, if you can’t
tell, then five guys ought not to overturn
democratic judgments. If you just can’t tell
what the answer should be, what is the basis for the Court
to invalidate, then and later, the laws of a lot
of states, as well as the District of Columbia. On the tyranny
rights, here’s where I think I differ from
Sandy– though I’m not at all sure that I’m right. But here’s where my thinking is. I taught constitutional
history here. And I taught the third of it– it was the debates at the
Constitutional Convention, and the ratifying of it– all the ratifying debates– and then the debates in Congress
over the Bill of Rights. Didn’t find much in
the way of ratification materials on the Bill of Rights,
but I did the ratification materials of the Constitution. So here is where I think the
Second Amendment originates. There was a provision
in the Constitution that was one of the
two or three most hated when it was proposed
and sent to the public– made public for the first time
and submitted to the states on September 17, 1787. And that was Article 1,
Section 8, Clause 16. The Constitution was
nearly not ratified. It literally had to come from
behind in the critical states of Virginia and
New York in order to gain ratification–
where there was a very strong
opposition that saw the creation of
a national government in some far away
national capital. It probably be easier
to get to London by ship from Georgia than to
get to Philadelphia over land. So the national
government seemed like what we were fighting
the Revolutionary War against. So the Clause 18 provides that
Congress shall have the power to organize, arm, and discipline
the state militias organize, arm, and discipline them. The states could
name the officers, but the training had to be
in accord with the discipline established by Congress. This is against a
background that would also allow Congress to create
interior appropriation increments– a standing army. So all of a sudden
there’s going to be a standing army, which reminds
one of the one of the Redcoats. And at the same
time, militias, which were seen as the people
in militia assemble. That is, the
militias, where people put down their implements
of agriculture, and trade, and took up guns. And organize
themselves, and went back to their
ordinary occupations when the when the
threat was over. So that militias were
the people’s resistance to governmental tyranny. And I think at that
time the states were seen as the repository
of the people’s liberty. There wasn’t that much concern
about state government, which was kept very close to home. It was very democratic
in most of the states. Often one-year terms, recall– very tight control
of the public. So that while there was
a resistance to tyranny, I see it more as states
being able to resist national tyranny. And therefore to
have nothing that would prevent the
people of the state from forming themselves
into a militia when needed. Story says at one point,
the people are the militia. The militia are the people. He quotes Federalist
Farmer as saying. So I think this
resistance to tyranny is not inconsistent, then. So anyway, there
was a huge outcry– creation of a national
standing army, giving the national
government control over the state militias. There has to be an amendment. And when Madison
promises amendments, this is one of the things
he promises to fix. Now, this doesn’t go
to public meeting. But Madison was dragged
kicking and screaming, because he did not like
state control over militias. He wanted, at that
point, to have a stronger national government. And so he carefully writes
the Second Amendment to give as little up as
he thinks is possible. Now, that doesn’t mean
when people ratified it they didn’t have
a different view. So that’s why he says, “a
well-regulated militia being necessary to the
security of a free state, the right of the people
to keep and bear arms shall not be infringed.” Now, I think, and never
win this argument, that “the people” refers
to the people collectively. You run into the Fourth
Amendment– using it in what’s clearly an individual right. But I really have that
sense that every part of it. So one of the problems of
arguing a case like this where has been such a public
discussion for so long is that people assume you’re
going to argue something you’re not going to argue. So everybody is waiting for me
to start with the preamble– “a well-regulated militia.” And they’re expecting
me to deny that it creates any individual rights,
which I thought was just wrong. The pro-gun control
people have been saying, it doesn’t create an individual
right, for about 30 years. And I think that’s wrong. And we were very intent
on making that argument, that individuals could
invoke the Second Amendment. The question is, what rights
does it cover, does it confer? So that, and to just
start by saying, we should start with the
phrase “keep and bear arms,” which surprised everybody. Everybody was
writing about how I was going to get up and
talk about the preamble, a well-regulated militia,
and then Alan Gura was going to get up and
talk about the right to keep and bear arms. And we went right to– let’s start with
keep and bear arms. Which in every
instance we could find, with almost no exceptions, was
a reference to the military use. So much so that Madison
in his earlier draft wanted to have a provision that
those with religious scruples were exempted from
the obligation to keep and bear arms. So the idea that the militia
would be of the people– it was a resistance
of national tyranny. Maybe the militia is
going to want to say, everybody in the state should
have a gun at all times. Maybe the militia wants
to say, every 17 year old has to be trained in
the use of a weapon. And any federal
law which infringed upon the ability
of an individual to participate in that would
raise a serious question under the Second Amendment. JOSEPH BLOCHER: Let
me add one thing here. The federal law point
is an interesting one. And worth noting that
at oral argument there are three folks
who argued Walter, Alan Gura for Dick Heller,
and then Paul Clement, arguing as Solicitor General
of the United States. And Sandy, you’ve written about
Paul Clement’s brief and view. And this is jumping a
little bit to the summer, when we get the decision
from the Supreme Court. Sandy, but I wonder if you
could say a bit about– and here I’m going to invoke
another one of your articles, fantastically titled. I have to just quote
this one right. “Why Didn’t the Supreme
Court Take My Advice in the Heller Case?” [LAUGHTER] Some speculative responses
to an egocentric question. Can you tell us a
bit more the opinion? Where the Court went
wrong, in your view? You can bring in Paul’s
arguments, or not. SANDY LEVINSON: Yeah. There are a number of
ways of understanding that second article
and my response. Now, I think that Heller
helped to elect Barack Obama– and therefore an
objectively good decision, whatever else one
thinks about it. [LAUGHTER] Had the four so-called
liberals gotten Kennedy’s vote, I think Obama’s election would
have been thrown into doubt. Because what Heller did
was to take guns basically off the table of
the 2008 election. And Barack Obama
could present himself as respecting the Supreme Court,
and calling on everybody else to respect the Supreme Court. And John McCain, to his
credit, did not say, but you’re only one vote
away from overturning it. Guns were really
not a part of it. So part of the plea was not
to overturn the DC decision, which on straight
political grounds, I thought would have
been most unfortunate. So that’s one way
of answering it. Then there’s the
more lawyerly answer. I did think that Paul Clement’s
brief was a terrific brief, in part because he invited the
Court to send it back to the DC circuit– actually to
fill in some blanks, like standard review
and things like that. And so then one of
the questions is, why didn’t the Court do that? Why did it end up the
5-to-4 split as it did, rather than to behave,
I think, in a more cautious and thoughtful fashion? Because to put it
mildly, they hadn’t thought about the
Second Amendment any more than anybody else had. And they like to talk
about issues percolating and stuff like that. There could have been a
little bit more percolation. There was also the fact
that from my perspective Heller really [INAUDIBLE] been
a Second Amendment case at all. Walter mentioned that I tried
to take some care in the Yale piece in not pounding
the table and saying, here’s what the amendment means. I think it is stunningly opaque
in its range of meanings. I also think that
by the 21st century, or I would argue by
the mid-19th century, there’s simply no
doubt that part of American
constitutional culture was to recognize an individual
right to keep and bear arms. One of the reasons I so
loathe Scalia’s opinion is that he insisted on
shoehorning the Second Amendment into his own
originalist handgun. And so he presents a
patently misleading history of the Second Amendment,
that would promptly be returned had it
been a seminar paper. [LAUGHTER] But they don’t write
seminar papers. They get to make it up. he dares to cite Charles
Sumner’s 1857 “Bleeding Kansas” speech for the proposition
that the antislavery settlers in Kansas had a right to
bring their firearms in order to protect themselves
against slave owners who don’t wish them well. That’s perfectly fair– except
if you’re an originality’s, where it makes no
sense to cite 1857 speeches for either
original intent, original public meaning,
or anything else that originalists talk about. It makes a great
deal of sense of you believe in a living
constitution. But, of course, Scalia
was a proud proponent of the dead constitution. But where Scalia showed, for
me, his lack of integrity was his refusal to cite
what is by far the best source for the argument– that every American citizen has
a right to keep and bear arms, for basically individual
purposes– which is Dred Scott. I don’t teach Marbury. Another article of mine is,
“Why I Don’t Teach Marbury, and You Shouldn’t Either.” [LAUGHTER] Which has had no
success, I can tell you. But one of the reasons I
don’t teach Marbury is I think it’s a waste of
time, in terms of what it takes to teach it well. And I’d rather get the time to
teach Quinn versus Pennsylvania and Dred Scott, which are
infinitely more important and challenging cases. Dred Scott is a truly
[INAUDIBLE] faced case. Part of it is simply
an abomination. I’m not going to offer
a revisionist argument with regard to its racism. But another part of it is
really quite inspiring– in terms of its assumptions that
if you’re an American citizen, you really get a meaningful
bundle of rights. And part of that bundle is the
right to keep and bear arms. That’s just what Tawney says. It has nothing to
do with militia. It has nothing to
do with rising up against an oppressive
government. He actually doesn’t tell you
exactly why you got that right, but you do. And so I teach Dred Scott
under the following syllogism– citizens have a
right to bear arms. That’s what Tawney says and
assumes, along with Sumner. Both of them agree in
1857 it is unthinkable that blacks could have
a right to bear arms. Therefore, blacks
can’t be citizens. The logic follows. But you begin with
a major premise, that if you’re a citizen you
have a right to bear arms. So I think you can call it
a Ninth Amendment right– privilege or [INAUDIBLE]
of US citizenship. And you don’t need to get
into the weeds of trying to discern the one true
meaning of this notably opaque patch of text. But why didn’t Roberts– I mean, there’s so
many contingencies. Walter mentions one–
that he emerges late in the game to be the lawyer. There’s a bit of a terrific
book by Adam Winkler called Gunfight– I think it ought to be
called Gun Fights– on how the NRA didn’t want
to bring this suit, because they couldn’t
count to five. So Heller is a wonderful
example of how, in essence, freelance lawyers
who hit the wave just right can get to the Supreme Court. The same thing is true of the
gay marriage cases in 2004– that nobody controls this. And that’s an important part. But another part
of the contingency is it was up to John Roberts
to assign that opinion. Why did he assign it to Scalia? If he wanted an
originalist opinion, he should have assigned
it to Clarence Thomas– who, in fact, had exhibited
some interest in the Second Amendment. My hunch is that he didn’t think
that Thomas could necessarily preserve the Court,
because he might not compromise the same
way Scalia compromised. And Scalia compromises by
a series of ipse dixits, with no reasoning whatsoever
to back up the proclamations that, do not worry, every
existing federal regulation of firearms is just fine– including preventing Walter’s
former client Martha Stewart from having a gun. I think Martha Stewart is
constitutionally entitled to a gun. I don’t care that
she’s a convicted felon, because what
she was convicted of was not a violent felony. I also believe that
undocumented aliens have a right to
possess firearms, if you buy the liberal reading– that is, the self-defense
reading of the Second Amendment that Scalia– it was just a terrible,
terrible opinion. But Roberts deserves
a great deal of the blame for assigning
it to Scalia and then being a good sport and signing it. One side piece
worth 30 seconds– there’s gossip that Clarence
Thomas might actually resign in the next couple of years. If that happens, my hunch
is that one of the reasons is that Thomas realizes
that he has never, in his now 25
years on the bench, been given a major
opinion to write. And he is unlikely to
be given major opinions to write in the future. I mean, there are majority
believes he’s written. I suspect that none of
them appears in case books, or is taught. There are interesting dissents
and concurring opinions that he’s written. But I think, after two
decades on the Court, you want to be a player. And you want to get your
share of majority opinions. And so I’m not going to
be alive to write this. But when all the archives come
open– part of the question is, who voted to grant
cert in this case, and what were they thinking? The whole conduct
of various lawyers– that is, the NRA versus GOA,
Alan Morrison’s falling out– Paul Clement’s
brief, and the fact that it was simply
ignored by the Court. But one of the things
I’m interested in is, why in the world Roberts
thought it was a good idea to assign this– [INTERPOSING VOICES] WALTER DELLINGER: Let me
just to go back one step, and just briefly
add the point about the individual-liberty right. I have always thought that
the better source of the right for the possession of a
gun, or the Due Process Clauses of the Fifth and
Fourteenth Amendment. And that that’s where the
argument should lodge. And you would certainly
draw upon the fact of the common law. right of self-defense. And common law right of
self-defense cannot be effective in many circumstances
and situations if you don’t have a gun. But I think that invoked
a kind of reasoning. You got too close
to Griswold and Roe for the comfort level of–
those who politically supported gun rights wanted to
be able to, I think, find some text to say that we’re
bound by some original text. When I think the text
is indeterminate, I would say, with some
distance from having been in the throes of argument. I do think it’s tough. To me, it makes the point that
originalism, which is often said is a restraint on
judges, because they have to apply the original meaning. I think it’s the reverse. I think it liberates judges
to impose their own views, because they can attribute
it to someone else, so they don’t have
to defend it– the way the great
opinion by John Harlan in Poe against Ullman became
his opinion, or [INAUDIBLE] against Connecticut. He explains and takes
ownership of why he believes that sexual
intimacy in marriage is so fundamentally important
that a government would need an especially
strong justification. He lays it all out for you. He doesn’t pretend that
he’s just a machine, which I think liberates judges. But I think you’re going to want
us to go to where we are now. JOSEPH BLOCHER: Yeah, I’ll
do a quick catch up of where we’ve been, and
then where we’re headed. So what we’ve gotten so far is
this discussion– scholarly, legal, political– kicked
into motion, in part, by publication of
Sandy’s article, 20-years later leads to this
decision that was repeatedly described as opaque. But kind of like a force
for confidence opacity, I’d say, to the opinion. It’s not at all the way
that Sandy’s own article is. The Court is very, very
sure of its conclusions, but doesn’t do anything
like articulate, for example, an
overarching test, identify one of the tiers of
scrutiny, or anything like. Instead, they leave that
for the lower courts. So the percolation that
Sandy was describing kind of happens ex post. Because after Heller, we
have more than 1,000 cases in state and federal
courts in the 10 years after Heller
generally congealing around some common features. SANDY LEVINSON: Please
mention my title. JOSEPH BLOCHER: This is the
final, and your next called shot. So what we also had is the
Court repeatedly rejecting cert. And Paul Clement now,
often representing the NRA, filing cert petitions
over years– dozens of them, by he and other advocates. And the Court is just turning
down every, every single one. Which tees up Sandy’s most
recent Second Amendment article, the title of which
is “Too Damn Many Cases and an Absent Supreme Court.” That was written
over the summer. We invited Sandy in the fall. And then a few weeks after that,
again Sandy calls his shot. And, again, the Court
listens, and grants cert in this new case New York
Rifle Pistol Association– which involves a very
strange New York City law. As far as I can tell, unique– I’ve never seen
another one like it. But that kind of catches
us up to where we are. Sandy, do you care tell us where
the Second Amendment is headed? Or, Walter, do you have
thoughts on the case? SANDY LEVINSON: I can’t
count to five on this one. WALTER DELLINGER: Either way. SANDY LEVINSON: Yeah. There was this really
stunning article on the 1,000 or so cases. And one of the points I make–
if you believe in that trial analysis– and let me tell
you, quite frankly, I’m not known for
being a doctrinalists. But if you do believe in
doctrinalists analysts, then just as psychologists say
that you really can’t remember more than seven
things, or 7 numbers, if you’re going to
do doctrinal analysis there really shouldn’t be
more than seven cases– which you can try
to blend together. If there are 1,000 cases
that is too damn many cases. [LAUGHTER] And, of course, only two
Supreme Court cases– which are notably unhelpful in
answering any of the questions, because there is no explanation
why Martha Stewart can’t have a gun. There’s no clue as to what your
level of scrutiny should be. WALTER DELLINGER: You should
see her temper, Sandy. [LAUGHTER] Before you go really
much further with this. More than that, I cannot say. [LAUGHTER] SANDY LEVINSON: And
McDonald turns out also to be a very mechanical
decision, where there the mechanism is
just incorporate it– because it’s unthinkable
that the states would be held to a lesser standard. Though, I’ve publicly described
Frank Easterbrook’s opinion for the Seventh Circuit as
the best 11-page opinion that’s ever been written,
in which he just ridicules– of course, if Easterbrook
isn’t familiar to you, he’s a very, very conservative
former University of Chicago law professor whose been on
the Seventh Circuit forever. And among other
things he points out is that if you, in
fact, like federalism, then you might believe that
state and local governments are more appropriate
venues of regulation. If you’re Vermont,
you might very much want to be quite free wheeling. That’s why Bernie
Sanders, until recently, always treated the NRA well. But if you’re concerned about
Washington, DC, or Chicago, or the like, you might
have a different view about the availability
of firearms. And Easterbrook
thought that was fine. Obviously, the Supreme
Court disregarded that. So the point is you
have all these cases, and nobody can make sense
of 1,000 cases that go in very different directions. There have been some
genuinely fine opinions. There was an opinion,
particularly the Third Circuit, on felons and
possession in Maryland. If you do believe in law
and doctrinal analysis, they were models of what
analysis should be like. It didn’t matter. Supreme Court denied cert. And then the Supreme
Court did deny cert. And I don’t think the
Second Amendment– I think Thomas is wrong
not treating the Second Amendment as an orphan. Because the Supreme
Court, in our lifetime– when Walter clerked
the Court was probably taking 150, 170 cases a
year, and issuing opinions on 120, 130 cases. WALTER DELLINGER: Yeah. SANDY LEVINSON: And now
they’re down to 70 opinions. Each justice is responsible
for writing about– you do the math– about eight
opinions for the whole year, and then the concurrences
and dissents. And needless to say,
they don’t really explain why they take
the cases they do or not. And so they had been absent. Now, this case really
is an odd case. And one of the reasons
I can’t count to five is that one can imagine
all sorts of reasons for an extraordinarily
moral opinion, saying that this New York
law really is kind of silly– a little bit like Stewart’s
view the Griswold– and it’s unconstitutional
for that reason. Richard Posner kind
of called the bluff. Posner assailed Heller
after the decision. And then, he turned
around and said, well, if you take Heller seriously– I think with tongue in cheek– then it requires that
you be able to carry guns wherever you want. Because after all, if
you’re really concerned about self-defense,
it’s not only your home, it’s anywhere you go. I mean, you live in the
kind of Donald Trump society where you can be attacked
at any moment, anywhere– then you want to have a gun
that you can defend yourself. And he said, well, this
is the way I read Heller– just baiting the Supreme Court. And the Supreme Court
hasn’t taken the bait. And who knows what the
Second Amendment means. WALTER DELLINGER: I
differ with both of you, that there’s anything weird
or strange about the New York case. It’s just sort of shaped that
way on the cert petition– or where cert was granted. But simply, the question
is, what kind of exceptions need to be made? The law is quite simple. It’s a prohibition on public
possession of a gun in public, and doesn’t touch the home. Now, if you take
it literally, you could raise some
questions about that. I’ll come to that in a minute. Another thing that struck me
about looking back at this, we won Heller, as far as
the district is concerned. JOSEPH BLOCHER: That’s right. WALTER DELLINGER:
Because what they cared about was carefully
not reached by Scalia. The ban was on
possession of a handgun anywhere, even in the
privacy of your bedroom. What they cared about
was guns in public. And for the DC police it’s
the single most important law enforcement tool that they have. Because people do
not go out to commit burglaries, and robberies,
and murders carrying a knife. They carry a handgun– or
a rifle, for that matter, on the Metro. They carry a handgun. And public possession of
handguns is prohibited. Then they get somebody,
and they don’t have one of the special licenses
that entitle you to do it, they’ve committed a felony. And there’s a lot of
enforcement of that law. When you can’t find out
whether they did the burglary or didn’t, you got them
because they’re out in public with a gun. And so that’s what the DC
police chief really cared about. And Scalia leaves open, in
a tantalizing sentence– we know we protect the
right in the home now. We don’t call into
question the state’s right to and locality’s
right to limit handguns in sensitive public places
like schools and courts. [INTERPOSING VOICES] [LAUGHTER] WALTER DELLINGER: What
that leaves open is, well, what about in an urban area? Aren’t all places as
sensitive as that? Not just schools, and government
buildings, or crowded subways. It’s not like you’re
riding across Wyoming. Can’t you declare the
five boroughs of Manhattan to be a sensitive area, in
the sense that Scalia meant? The game with the
cert petition is to take the statute
literally, and then to find some absurd applications
if you applied it literally. So what if you
have a second home? It’s interpreted to apply. And sometimes the interpretation
comes from the police, but that may be temporary. When if you have a second home? Can you not transport the
gun to your second home? Well, that would be a
stupid way to read the law, or for the law to be applied,
because it would require you to keep a gun at each place. Meaning, leaving a gun in an
unoccupied forest dwelling is not a good idea. Teenagers would break into it. It’s better to have the gun and
take you with you in a lockbox. What if you don’t keep
it in the lockbox? Well, you can ticket
them for that. So my view is you’ve got
to protect the second home. Saying you’ve got to
protect the second home– and let people,
therefore, travel. And the other exception, you’re
allowed to go to your training at a gun club and
gun training, which would be an important penumbral
aspect of a Second Amendment right, to be sure. Well, it has to be an
authorized gun place. and the Police say they
only authorize places within the five
boroughs of Manhattan. So you can’t go right
across the river. Well, they could change that. They could say, you’ve got
to consider applications from outside the five
boroughs, if they show they’re meeting a
need that is not served. If you take care of
those two problems– and to disclose, I have
some involvement in this. If you take care of those two
problems, what you’re left with is a simple ban on
public possession– which is the big issue. I think greater
practical consequences than the laws at issue in
McDonald and in Heller. This is the big question
of whether those localities that choose to do so– Wyoming is not going to do so. Oklahoma is not going to do so. North Carolina is
not going to do so. But whether some cities, or
localities, or urban areas can say, you can’t have
guns in public places. And that, I think, is going
to be the big issue that [INTERPOSING VOICES] WALTER DELLINGER: No, no. Because I don’t know– I can’t. I’m neither optimistic nor
pessimistic about this case. But they did take the case. The city had hoped to say, move
along, nothing to see here. But, again, Paul Clement
did an excellent job of pointing out
these idiosyncrasies at the margin of the law. To which my response
was, as it was in Heller, get rid of the idiosyncrasies. You could read the DC
law as you can’t move your gun within your own house. Well, we don’t read it that way. And if you put a hold that
would be unconstitutional, it’s fine with us. The same with trigger lock. We didn’t care
about trigger locks, because it’s unenforceable. What makes trigger
lock enforced was that they give you a free
trigger lock for your gun. That’s what’s helped
spread trigger locks– not the requirement that you have
one, which has really never been enforced. But the Court wanted to use
that as a way of saying, well, there’s no gun that can
be effectively used. We want to say, just throw
us into the briar patch. Get rid of that. One last thing. Now, to give you a
sense of the intensity of the feeling about this– Heller was so teed up to be
the great American gun fight over the Second Amendment. And if there was an argument
that everybody said, tell me, you can’t make. Because everybody’s teed this
up to be the great Second Amendment case. And that is, whatever you
think of the Second Amendment, I won’t argue. It can’t invalidate
gun restrictions within the District
of Columbia– done by congress’s delegee. The city council operates under
the authority of Congress, with Congress having the
authority to disapprove anything. When the Constitution
created an area not to exceed
10-miles square, it was crazy to make it
that big, to be the seat of the national government. The idea that Congress
couldn’t regulate weapons within that 10-square-mile area
like they can regulate them on Fort Bragg, I think is
a debatable proposition. At least, they’re willing to
argue that whatever limitations there are on Congress as a
national legislature affecting rights in Wyoming. This is the District
of Columbia, where they’ve got
sort of plenary power over security of the
national government. But everybody said,
no, they don’t want to hear an argument– that
this case is going to go poof, because it only applies to
the District of Columbia. JOSEPH BLOCHER: Well, we’ll see
how the next chapter unfolds. The court will hear argument
in the New York case next fall, we think. So an opinion by the
end of next term. And you all are
now fully equipped on everything you need to know
about the backdrop of Heller, Heller itself, and at least
part of the aftermath. So please join me in
thanking Walter and Sandy. [APPLAUSE]

2 Comments

  • Brian R

    This sounds like the most bitter loser on the planet….. right up there with Hillary Clinton losing to Donald trump.

  • spencer aaron

    what about the individual right to self defense? it is God given, and fuck the constitution.. take your NRA to hell with you, as they are coconspirators in this rollback of human rights..

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