 Thank you all for being here. We're going to start with some remarks to frame the discussion that Garrett will give us. Thanks. I had a moment of panic when I got here because they said, are you ready for your panel on the resilient Constitution? I said, oh my God, is this on the Brazilian Constitution? Which I wasn't prepared to talk about. But I think in terms of the theme of this conference, the most remarkable thing about the U.S. Constitution is simply that it has survived as long as it has. The people that framed it didn't necessarily expect it to last this long. Some thought in terms of 25 years, at one point in the Philadelphia Convention, Madison was worried that if the country grew to a certain point, the House of Representatives would get too big, and Nathaniel Gorham popped up and said, you know, basically seriously, grandpa, why are you wondering about this? You don't really think this country will still be what it is in 150 years. I mean, it's ridiculous. That it has survived owes a great deal to that framing generation, but not in the way that we are ordinarily told. That is, we ordinarily told that they foresaw the future, they understood what was going to happen, they provided a guide for everything, which is clearly incorrect. What they understood was that the Constitution was an open-ended way of confronting unforeseen problems, and this is laid out by Hamilton in Federalist 34, where he's talking about people who are saying, oh, this government is going to be too powerful, and he says nothing can be more fallacious than to infer the extent of any power proper to be lodged in the national government. From an estimate of its immediate necessities, there ought to be a capacity to provide for future contingencies as they may happen, and as these are limitable in their nature, it is impossible safely to limit that capacity. What the philosophy of constitutional interpretation at that time was basically viewed the Constitution not as an orchestral score that was going to be played over and over with the original instruments by the Society for Ancient Music, but more like a fake book that musicians can use to improvise. And in terms of that kind of constitutional interpretation, the founding, the early federal period, was really the bebop era of constitutional interpretation. The first major controversy, which I could talk about for hours and we'll try not to, occurred a year after the Constitution went into effect when they realized they'd forgotten to put a mechanism in it to remove people from the cabinet. Nobody knew how a cabinet minister left office. Some people said, oh, well, it must serve for life. Other people said only by impeachment. Others said the Senate has to be part of it, and there's a great debate about this in the House, which Madison leads. And today I think we would expect him to stand up and say, oh, yeah, my bad. We totally intended for the President to be able to do that, so that settles it. But he doesn't do that. He sounds like Richard Posner in Buckle Shoes. He says, we must decide on the correct construction from its consequences. Which one will be more conducive toward the success of the government and liberty? And he says, in my judgment, the consequences are more favorable from allowing the President to remove without Senate involvement, and that's the interpretation that was adopted. That was before Madison discovered strict construction. Strict construction is not an originalist philosophy. It's something they came up with 10 years later because they suddenly thought, we don't like the way the country's going. Let's say that the government can't do all this stuff. And as an actual philosophy, strict construction lasts roughly three years because in 1801, Jefferson became President, and power suddenly didn't look quite so scary. In 1803, he had the opportunity to buy Louisiana, which would mean that forever the new country would not be surrounded and hemmed in by the imperial powers of Europe. It was a defining moment in American history. The only problem was that the Constitution did not say that the federal government could acquire new territory. Jefferson believed that it couldn't. He believed that it was unconstitutional. He believed that in order to buy Louisiana, there had to be a constitutional amendment. And he writes a letter on this subject in 1803 by William Cury Nicholas that contains one of the most famous phrases in constitutional interpretation because he says, let me find it here. He says, our peculiar security is the possession of a written constitution. Let us not make it a blank paper by construction. And that is often quoted as, you know, this is how we should read the Constitution. But if you read the whole letter, he goes through another paragraph saying, on the other hand, if I don't buy Louisiana right now, Napoleon is going to change his mind. So then he says at the end, basically, oh well, he says about strict construction. He says, if however our friends think differently, I shall acquiesce with satisfaction confiding that the good sense of the country will correct the evil of construction when it shall produce ill effects. So Louisiana is bought strict construction, not so much. Let me skip forward to something that relates much more directly to an interpretive problem we have right now. I want to read from a brief filed with the United States Supreme Court about a statute that used the commerce power. The present statute departs markedly from any prior statute sustained as an exercise of the commerce power. It is incapable of being regarded as within the scope of any other statutes or decisions. There is no statutory precedent to support the solicitor general's position in this case. It is within the court's proper prerogative to look with deep concern at an assertion of power never before upheld. This brief was filed in the 1964 case of Katzenbach versus McClung. And too much later the Supreme Court held that Congress did have the power to require Ollie's barbecue, a segregated restaurant in Birmingham to serve African-Americans in its dining room. The unprecedented Civil Rights Act of 1964 was upheld. And it turns out as we look back, any economic historian I think would say this was a crucial milestone in making the United States a single national market that everyone can do business on an equal basis. It's very hard to understand that people thought this can't possibly be a regulation of commerce. This is the end of the world. We're in the middle of another struggle over unprecedented use of the commerce power. And the respondents brief in the state respondents brief in the Affordable Care Act case uses the word unprecedented 19 times. I suggested a drinking game based on it. And the idea is that if we allow this unprecedented use of the commerce power, which the framers never foresaw, we're going to end up in a nightmare dystopia dictatorship. And here is one frightening possibility. Assume Congress finds that narrow handled baseball bats are injurious to the public and therefore prescribes a minimum diameter for bats moving in commerce. To effectuate this law, Congress could prohibit a person from whittling the handle of a bat that had moved in commerce. But could Congress also prohibit this person from hitting his wife with the bat? Or could the government regulate the recipient of the bat in conduct which intrinsically is unconnected with the bat? Okay, I'm cheating again. This is also from the briefing Katzenbeck vs. McClung. I leave it to you to figure out why southern segregationists were particularly afraid that Congress would stop them from hitting people with bats. In our gentler era, the horribles connected with the Affordable Care Act center around citizens being forced to eat unappetizing snacks, broccoli, no french fries and so forth. Maybe that will happen. I don't know. Sure. I suppose it's theoretically possible. Look, there were no baseball bat regulation acts after the Civil Rights Act. What there has been instead is the use of the commerce power in a way that I think we can all be proud of to expand human equality and democracy by extending basic civil rights to the disabled, to the aged, to women. The use of this power has given rise to none of the fears that have been generated about it. And my basic thought is that in terms of interpretation, a Constitution that survived the Louisiana Purchase and the Civil War and the New Deal in the 60s probably has enough snap left in it not to crumple at the minimum coverage provision either. And probably the way to think about this case is to take Jefferson's sort of cheerful approach and confide that the good sense of our country will correct the evil of construction when it shall produce ill effects. So with that. Thank you. That was great. Okay. Perhaps you as a clear defender of the Constitution don't actually think it needs to bounce back and be resilient from very much. I wonder in this era of real government involvement in the economy and an incredibly big complicated economy that in so many ways the government is challenged by figuring out how to help along and also corral. Whether that raises new challenges for the Constitution. I mean we have this phrase interstate commerce into which we have packed and unpacked at various times, argued over meaning. Do we need more as the Constitution kind of up to this challenge of the scope and role of government? Well I think that's a fascinating question because we actually are beginning to get data on this. First of all in the general sense we have 100 years of data because beginning with the progressive era we have had some fairly systematic regulation of the economy and the growth of the administrative state. And there is no article 8 of the Constitution that says here's how administrative agencies shall work. We've had to piece it together by constructing article 2 and contrasting which is the executive versus article 1 which is what does the legislative have. And that constantly is being explored but it has not yet given rise to disaster in my judgment and it has helped us address a number of problems. A number of people thought we had crossed some kind of rubicon in 2008, 2009. And I will never forget in September of 2009 at a preview for the October 2009 term, former judge now professor Mike McConnell saying the constitutional issues before us have changed radically because never before has the government moved in as the owner and manager of a substantial share of the economy and our system simply cannot accommodate this. It's going to give rise to a crisis. What's fascinating to me is that and this goes to the question of resilience because I actually think the Constitution is pretty resilient. We are now, you know, two and a half years on from that pronouncement and what's happened is that without much fanfare the government has begun to move back out of this radical new position. The government doesn't own General Motors anymore. The government isn't running all the banks. The economy, we're returning to something like the regulated economy we had before because again the Constitution and its values and remember going back to Madison, what Madison kept saying in the removal debate was let's look at the interpretation that has the best immediate consequences and is consistent with the values of the Constitution. The values of the Constitution steer us in a consistent direction and a lot of the rhetoric that you hear from the losing side in one political struggle or another is that this particular thing has broken the Constitution. You know, it's over. You know, the great beast of revelation is upon us and actually what's happened and what often happens is that politics and society resumes the shape transformed but not radically altered that it was moving in any way without a constitutional crisis. So along those lines, how should we think about changing the Constitution? Are we finished changing it? Do we have the set of amendments that we can tolerate passing or should we think of this as a document which at this point given its couple of hundred years odd age is actually in need of serious structural tinkering and if so is there a real alive mechanism for changing the Constitution? I think the last question is the most lively one right now. The Framers of course, the founding generation, they love tinkering with the Constitution. They amended it 12 times. No other generation is even close. You know, they said, oh, you know, the presidential election of 1800, that kind of sucked. Let's rewrite the rules, right? You know, Chisholm versus Georgia, Worcester versus Georgia, terrible decision. Let's change it. There are a number of scholars who now say that the Article 5 amendment power is theoretical only, that it is too hard to amend the Constitution. And therefore we need to think about getting rid of it. There's a very serious movement not only among Tea Party people, but Tea Party people are so loyal to the Constitution that they really want to destroy it. But Larry Lessig at Harvard, you know, who is a very admirable progressive is part of this saying, what we really need is to use Article 5 to set up a new constitutional convention, rewrite the whole thing. I kind of have my nervousness about that because I'd have to redo my class notes. But I frankly, I'm not yet convinced that Article 5 is no longer useful. And then if it's still in play, how do we make sure that our hesitations, which I think are there for a good reason about really getting in there, how do we control it? How do we know that the right amendments come through, or is that just a factor of the political process? Well, I think that in order to amend the Constitution it takes such a sustained political impulse that we've seen over and over in the last 20 years. There was a period of time when one party really believed there was no culture war issue that couldn't be solved by changing the Constitution. We have a flag amendment, we're going to have a prayer amendment, we're going to have an abortion amendment, now we're going to have a marriage amendment. And these issues that kind of spike really don't create enough genuine public support to support an amendment, which is probably good. And yeah, Article 5 is still alive, so something could. I think that's right, I think there could really be, and you know, if you look back at the progressive era in which the Constitution was amended to allow for direct election of senators, the imposition of the income tax, votes for women, prohibition, oh that wasn't so good, repeal of prohibition. This was a period of 20 years when the voters, not the politicians who were very reluctant to engage in this process, but the voters were deeply dissatisfied with Gilded Age America and they said, at a very deep level we need to change the Constitution, and that sustained mobilization did change the Constitution, but it also changed politics. And arguably that's not a bad thing. Arguably there should be that much unrest before we change the Constitution. But you know, then they had 30 some states, now we have 50, does that mean it's impossible? I don't know. There's a famous story that comes out of the struggle of the Equal Rights Amendment, which as you know failed just by one or two states, where they thought of re-proposing the Equal Rights Amendment, but not putting the ratification to the state legislatures, because under Article 5 Congress can send an approved amendment to be ratified by conventions in the states that's only been used once for the 21st Amendment. Women's Movement Leaders, and someone proposed this, and they said, well that's a good idea because the amendment is really popular in the country. We've got the polls on our sides, we would win in these conventions. And someone else said, well, let's be aware that this mechanism could be used for other things. You know, and... Riders could be attached to that. Or they could just propose other amendments, and somebody said, well what are you talking about? The chair of this meeting, a very well known feminist said, no, I can get 13 states. There's no problem, we can block that one. And the person said, well, there could be a school prayer amendment. And there was a moment of silence. And then the chair said, well, you know, I wouldn't hurt the little bastards to pray every now and then. So, you know, there are other ways to use Article 5 that we haven't tried, and it may be more flexible than people claim. So I want it, you have a book coming out in August, it's called Wrong and Dangerous, 10 Right-Wing Myths about the Constitution. And I want to give you a chance to talk a little bit about that, and how that your book fits into, I think, a quite impassioned stance you're taking right now about how liberals need to own the Constitution, and talk about it with as much zeal as the right often does. I think that's true. I think that there was a period of time starting in the 1980s when the legal right came up with this idea of originalism. And this was going to be their mechanism to stop any recurrence of the Warren Court because you had to go back and ask what the framers really believed. Originalism as an idea has never really worked, except as a rhetorical trope. And you follow how conservative thinkers re-figured it in the past 30 years because it keeps not working, and then they have to come up with a new part of it. So originally it was original intent. And it was like, well, we don't know what they intended because that was in their heads. Oh, yeah. What we mean is original understanding. And it says, well, the problem with original understanding is that's just understanding what's in the heads of many more people. And they're like, yeah, you're right. We're going to have original understanding, which meant let's look in a lot of dictionaries. And then the problem with that is the dictionaries are inconclusive and who knew people didn't own dictionaries. Now, then somebody said, well, we have original methods originalism, meaning we decide what people would have decided by the methods they used then if they had sat down to decide what the original meaning was. It's a little meta. Right. There's more. If you want, you get the ginsu knives. Because now we have the, someone has written a thing saying we have the problem of political ignorance. Namely, most people never thought about these things. So what we have to do is construct a mythical person and then change that person. It's a little bit like Bill James baseball. You know how they decide whether the 55 Yankees could have beaten the 38 giants by adjusting all the figures. They say, we come up with a mythical person to understand these things, but then we give him that knowledge, then we decide how his attitudes would have changed if he had the knowledge. So it's a little bit like the heliocentric theory of the universe where you keep having to add epicycles to account for the observations. But at the same time we begin to see a movement among more progressive thinkers to look at original, the original list materials. In the way that I have described is to say, what do we learn about the open-ended texture of the Constitution from doing that? And what's remarkable is how much of the material actually doesn't support the kind of interpretation that the legal right has been trying to put on the Constitution for the last 30 years. And even the right is beginning to realize this. So you see a decision like the United States versus Jones, which for futurists I think is very interesting, because the question is whether the government can put a GPS on your car and track you wherever you go without a warrant. And because if you think about it, given how inexpensive GPS technology is, if you don't need a warrant, they could put it on all our cars. And there is computer power, or by Moore's law soon will be, enough to know where everybody is and begin assembling very interesting conclusions politically and otherwise by knowing where everybody is. So this is really an important, present and future-oriented issue. And the court decides 9 to nothing that you need a warrant. But just as Scalia's opinion, which was for four plus a concurrence from Sotomayor, says, obviously the way we understand this is how the founding generation would understand this question. And it ended up being his reasoning what if in 1787 the Philadelphia police had gotten a tiny midget and hidden, I'm not making this up, hidden the midget in your carriage in a place where you couldn't see it so that you could write down everywhere you were. Clearly you couldn't have done that, so you can't do this. And Justice Alito writes an opinion that is openly derisive. You know, this is within the right. Basically saying, get a horse, grandpa, what are you talking about? This is crazy. We need to decide this in the context of a society that is capable of tracking everybody all at once. And so the idea that there's an original intent, which of course is very much part of the Tea Party discourse, has really completely broken down in terms of the people that seriously study these issues. And well, I could go on about that, but I won't. You talked a little bit about the health care case earlier, but I wonder how you feel, there have been sort of two lines on this from the left. One is that this is a very easy case. It's really a slam dunk. All the doctrine is lining up in one way, not to mention the prudential, pragmatic Posner, Thomas Jefferson argument for having a national market for health care and individual mandate. And yet we have this challenge with this enormous amount of time being spent on argument next week and some fear that this case could be politicized in a way that would create the kind of damning 5-4 split that I think pretty much no one would really be that happy about. And I wonder whether you think that the outcome of that case will say a lot about the resilience of the Constitution. It's unusual to have a signature piece of legislation from the standing president before the court in an election year the Obama administration kind of further amped up the drama by removing the argument someone will argue this, but the government is no longer arguing that it's possible for the court to just punt on this case under 19th century law called the Anti-Injunction Act. So we have very high stakes and I wonder whether you feel like the outcome of this case could either be very affirming for the resilience of the Constitution or could really do damage or whether we in the end will see this as only one moment in this longer tapestry. I think probably the latter in the following sense because the case really is quite important. But I would think that a decision to strike down any part of the Affordable Care Act would be doctrinally and constitutionally and politically a disaster, a terrible move. In fact the question I think is going to be whether this court is willing to look at questions like Alito, the way Alito did in U.S. versus Jones, looking forward as Judge Kavanaugh said in his separate opinion, looking forward this tool of using a market based solution to an economic problem is something that can be used in ways that we, you know, it's not a liberal idea or a conservative idea. It's something, it's a tool that government can have at this disposal. Do we want to cut that off now without any knowledge of what the consequences of that would be because we don't think that, you know, Millard Fillmore would have proposed this bill or do we want to try to go for an immediate halt in change. And historically the court has fallen prey to this immediate halt idea far too often and the test for the Constitution is not whether the court does it, but what the response is from the country because the Constitution is resilient enough to work around these things. Sometimes it once it took a civil war, that is bad. I don't think that will happen over the time. Sometimes it takes a constitutional amendment. Sometimes it takes the New Deal crisis. But usually we go on. That doesn't mean there aren't high stakes in terms of the immediate consequences. But I don't think it in and of itself is going to tell us what the health of our Constitution is. It will tell us a lot about the Supreme Court. But historically the Supreme Court has not really ever been a particularly important part of the Constitution. That has to be done by all of us. I want to open it up to questions from the floor. There's a microphone back there. There's someone up here. A few people up here. I'm Mitzi Wertheim. I want to raise a question that I think is first and foremost at least to buy concerns which is campaign finance. And what's your view about how we fix that? Considering the Constitution, the Supreme Court, what are the options for that? Well, cancel your lunch plans, folks. But I actually will answer. Two big lies. There are two big lies in American law. One is I'm a justice of the Supreme Court and I'd like to clear things up. The other is I'm a law professor and I'll be brief. But I will be very brief. I think that we need to start moving toward a constitutional amendment, but it's not the one that people have been talking about. Because the problem with Citizens United is not the idea that corporations are people. Corporations have always been persons. And focusing on that is a red herring. What's gone wrong in our First Amendment doctrine is the idea that the First Amendment has nothing to do with self-government and equality. It's not making as much noise as you want depending on your resources. And we need to push back against that. And the drive to amend the Constitution would be very useful even if it doesn't succeed. Because constitutional amendments often do a tremendous amount of good even if they don't succeed. The court, I think, is already in the process of asking itself whether it really didn't make a mistake. And we've got the short process going on now in American Tradition versus Bullock where the court could have stepped in and just reversed. I don't know how many people are familiar with this, but the Montana Supreme Court said we have a case where a corporate group wants to spend unlimited money in our elections and Citizens United seems to say that we should let them. But the more we think about it, the more we think them boys in the East and the Supreme Court are too stupid to pour water out of a boot and we just don't go along with it. You know, to hell with it. And basically they kick the case up to the court saying if you want to gut our state campaign finance laws, you're going to have to do it because we won't do it. The court could have just stepped in and summarily reversed, which is what a lot of people expected. It did not. It stayed the judgment of the court and then invited petitions for cert to produce a lot of amicus briefing and Justice Ginsburg and Justice Breyer both said, you know, I think it might be time to rethink Citizens United. Why don't you bring us some briefing on that issue? It's remarkable that's happening and I don't necessarily think it means they're going to switch. But I think it means they're beginning to think about how broadly they want to take this doctrine and it is possible over time to blunt lines of precedent and for the court the court over rules itself all the time without admitting it's doing it and that could happen in Citizens United. So it's a terrible decision and needs a lot of action on a lot of fronts but I am certainly hopeful and when I think of resilience this is one of the areas that I think the Constitution has a lot of promise. And one of the reasons is, you know, you've got five Republicans on this court who are now watching the Republican primaries and a couple of them have got to be thinking, you know, this isn't really what I had in mind, right? So Foster Breeze versus Sheldon Adelman Yes, exactly, exactly. You go ahead and choose some ones and two of them, Mike. Yeah, we'll blame you. Right, exactly. Hello. One of the ways that I feel kind of jaded when it comes to reforming the Constitution is just the historical event of the century following the Civil War. You had a century of Jim Crow and even with the adoption or the ratification of the 13th Amendment arguably you didn't have there was not a federal criminal statute outlying slavery until World War II and you had tremendous consequences as the one Wall Street Journal reporter Douglas Blackman illustrated in his book. So just because you had a constitutional amendment didn't mean that you had real reform. And so I guess my question for you is have you had any thoughts about the general conditions under which a constitutional amendment actually creates some true reform and when it's just almost beside the point because we don't have some other ingredients necessary to make something really happen. Well, there's a great deal of scholarly literature on this question and I want to try to tackle it very quickly through a couple of points and one of which I think sheds a lot of light on this whole question because you say we had a century of Jim Crow. Actually, that's not so. After the 14th Amendment was passed, the 13th and 14th and 15th Amendments, we had a period of really almost 30 years of actual biracial politics and of racial openness in the south and it really wasn't until the period between about 1895 and 1815 that what we call segregation today was imposed on the south and the reason I make the point of that is that I think it's important to understand when you look at American constitutional rhetoric. Ralph Waldo Emerson in 1867 said in America there are always two parties the party of the past and the party of the future. But what he didn't really make clear is that both parties are always actually talking about the future so that we have now been taught that the south was segregated and it kept its segregated system and it didn't change and so forth. That's not what happened at all. What happened was that in Plessy vs. Ferguson, the Supreme Court chose between two different futures and one was what I consider to be the most thoroughgoing radical piece of social engineering in American history and that was segregation. It was brand new. People thought it up. They said I've got a great idea we'll have a system where we keep the blacks out of everything, we don't let them vote we'll have this law and this law and this law and it'll work well. It wasn't really what it existed before it was a radical change. So I think that the constitutional amendments the 13th, the 14th and 15th amendments work well as long as they're not given to the care of the court. That's why I say the Supreme Court is not the best and most faithful steward of the Constitution. That has to be us. And as long as the nation preserved some commitment to a certain level of racial decency segregation as the system evolved, the system I grew up under absolutely horrible racial dictatorship could not evolve and really what happened was that in the late 1890s the United States decided it would become an imperial power and it became intellectually impossible for people to think it's okay for us to rule the Filipinos because they're racially different but not okay for Southerners to rule black people. So it was a change and so what's written on the Constitution is not ever going to solve the problem but I think those amendments made a huge difference and continue to. And the 18th Amendment is still terribly important. Look at the Proposition 8 case if you think that it isn't. Lady up here. My name is Lee Yang. I think about a Constitution and a government is basically to do everything by and for all the people and the separation or churches but now what we are having is instead of pursuit of happiness reduce the tax burden we are high skyrocketed budget deficit and we use privatization to subsidize all the private gains so do you have anything to say about it how to curb it? Well, I don't think there's any question that politics is broken. I don't know whether to blame the Constitution for that or not. I will say this that one of the big complaints of the challengers to the Affordable Care Act is that it represents a subsidy to the insurance industry and the Constitution forbids subsidy to private business. And I read this and I was like what are you smoking? Because for better or for better or worse the main activity of Congress since 1789 has been deciding who would get the subsidies and who wouldn't. Whether it's the Pacific Railroads the arms makers, the canal people you know coming forward in our time farmers and there's no doubt in my mind that this can be done badly and often is but I think the main thing the Constitution could contribute toward dealing with this problem would be to help us fix politics by backing off the kind of not just the Citizens United limb but the whole series of decisions since Buckley versus Vallejo that basically says regulation of campaign finance has to be done only at the margins and we fundamentally have to allow a political system in which money rules. I think that's what the Constitution can contribute to the problems you're talking about. One more question Pink sweater Oh there you go Can you just talk a little bit about the right to bear arms and today's semi-automatic weapons being dragged into schools and other places? I'll do my best I used to teach in Oregon and whenever I'm speaking west of the Mississippi I would duck that question I simply say I haven't read that far I've got to the First Amendment Um I think the most to me the most plausible reading of the Second Amendment was that it was aimed at reassuring the states that Congress would not dissolve and abolish their state militias because the most radical shift in power across the board that the Constitution made from the Articles of Confederation was to transfer command regulation and training of the militia from states to the federal government whenever the government chose that was incredibly radical under the Articles the states always retained command of the militia even in time of war so I think a certain people like Patrick Henry began to say it's a plot we've all heard that it's a plot they want to they have black helicopters they're going to disarm our state militias and then rule us the motive behind the offering of what became the Second Amendment by Madison was to say no that's not what it's about you can have your militias but if there's a war we want the army under one command and Madison's great point of pride when he died was that he had fought the War of 1812 now that didn't go as well as we had hoped but we did survive it he had fought the War of 1812 with militia he had not gone to a standing army so I can't, I don't think we can ever know history well enough to say no there was no personal aspect to it but I think that the Supreme Court in Heller has gone about as far as the evidence will take it about the personal right to bear arms and it's important to realize that whatever you think of Heller it's so far a very limited decision it says you have the right to personal possession of a hand weapon in the home for purposes of self defense there is no reason why that precedent has to be expanded to say you have a right to a personal armory of tank piercing ammunition for the purposes of your local militia going down to the tax office the court certainly hasn't gone there yet and I don't see any historical evidence one of the myths in the book which is going to be available at fine bookstores and undoubtedly also through e-reader services one of the myths is that I tackle and go at very hard is the idea that's been spread in this country since the 70s that the real purpose of the Second Amendment is to allow citizens to threaten the government and there's frequently a quote from Thomas Jefferson that they cite they say where the people fear the government there is tyranny the government fears the people there is liberty and you're like whoa Jefferson he was a smart guy I can't argue with that except it's made up he didn't say it it was actually said by John Basil Barnhill undoubtedly a name that's on every tongue in 1914 in a magazine called the national ripsaw in a debate about whether the socialist party or the single tax party should be the main third party in the United States Jefferson there's no evidence that the framers wanted an armed populace that would go and fight against tax collectors the one time that happened in the early federal period was the whiskey rebellion and George Washington went bats puto when that happened he formed a national army and led it himself in the field the only president to ever lead as commander in chief a national army in the field went into Pennsylvania arrested everyone he could get his hands on dragged them to Philadelphia put them in prison and made a speech saying you know what's wrong with you people you're trying to destroy the country and then you know I'm going to get you and then you went back to you went back to Philadelphia and pardon them all but that was done very quietly because they really did not want an armed citizenry blocking government actions so I think the whole idea that that's what the Second Amendment is about it's very recent it arose in the lifetime of most of the people in this room and like a lot of these originalist constitutional doctrines it's a kind of invented past for a science fiction future and we're beginning to see the outlines of that future if you follow the Trayvon Martin case this is the kind of society that the kind of radical Second Amendment advocates foresee they don't regard this as a bad consequence at all they want more gun violence as part of our social social dealings and it's very disturbing on those fighting words we're going to end thank you very much