 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. Joining us today is Alan Gura, partner at Gura Pazeski and the lead attorney on two of the biggest Supreme Court cases in the past 10 years. District of Columbia versus Heller and McDonald versus City of Chicago. Welcome to Free Thoughts, Alan. Thank you so much for having me. So for those of us who don't know, who aren't in the game of the Supreme Court game, District of Columbia versus Heller, what was that case? Well, for many years, since the beginning of the United States, the government was not really thought to have too many powers to regulate guns and we didn't have a whole lot of gun control. And consequently, we saw very few disputes arise under the Second Amendment, which guarantees people the right to keep and bear arms. It was not until the early 20th century, not until a case called United States versus Miller arose in the 1930s, that the Supreme Court ever got a chance to directly comment upon the meaning of the Second Amendment. And in that case, the Supreme Court issued a somewhat vague, confusing opinion, which had been misinterpreted for many years by people who wanted to believe that the Second Amendment actually secures no meaningful individual rights. It only secures some right to serve in a state militia or the right of the states to provide firearms to those who might serve in an official military organization. That's not exactly what Miller said, but nonetheless, this was the view of many courts who would routinely rubber stamp dismissals of Second Amendment challenges by saying that there is no individual right to keep and bear arms, C.U.S. versus Miller. This remained the practice until 2001 when the U.S. Court of Appeals for the Fifth Circuit, in a case out of Texas, became the first federal appellate court to actually examine the Second Amendment, consider it, think about it, discuss it some length. And that court concluded, not surprisingly, if you give it a real analysis, that the Second Amendment does in fact guarantee a meaningful individual right. By that time, the Second Amendment issue had been the subject of very intense academic interest. It was obviously a matter of great interest to the American people. And now we had a circuit split, a division of opinion among the federal appellate courts as to what this amendment means. Now, was it really all circuits against the Fifth Circuit? Had they all decided that there was no individual right on the Second Circuit? Most circuits had. Most circuits had. And there were two courts that were arguably open. Those were the Second Circuit and also the D.C. Circuit out of Washington, D.C. Let me ask real quick. You'd said that for quite a large chunk of the country's history, the Supreme Court hadn't dealt with the Second Amendment much simply because the government wasn't restricting gun rights much. It just didn't. It wasn't an issue, a live issue. How did it get to be one? What changed? Like, why? Was there a cultural shift? I mean, you talked about that people were writing about this issue and there were laws popping up. When did that shift occur and why did that shift occur from the kind of more freewheeling earlier days? Well, it was not until the 1930s that the Supreme Court began to take an expansive view of the federal government's authority to enact regulations of all sorts. And so, it was not until then really that we started seeing sort of a license to the federal government to go ahead and explore in the area of gun control. In fact, the first Federal Firearms Act, I believe, was enacted largely as a tax measure. There was some concern as to whether the Commerce Clause could even reach a gun regulation. At the state level, there had been restrictions on guns. Primarily in the wake of the Civil War, there were many Jim Crow laws that prohibited essentially African-Americans and other people who were disfavored in the south from accessing certain types of arms or from carrying guns. But during those years, the prevailing doctorate to Supreme Court was that the states were not bound to honor any of the Bill of Rights. The Bill of Rights was not considered to bind the states and units of local government, and so those laws were really not subject to being addressed in the federal courts. But most states had their own right to keep their arms in some way in their own constitutions, correct? And those were litigated and there had been cases, in fact, going back into the early part of the 19th century, where state Supreme Courts had struck down various gun laws and other weapons laws that dealt with the right to keep their arms under analogous state constitutional provisions. And so when the Supreme Court did finally actually get a chance to explore the Second Amendment, they did have a good basis rooted in state constitutional doctrine that they could look to to see how the right to arms had actually functioned at least while the state courts were dealing with it. And I assume that when you got involved with D.C. versus Heller, you had been litigating gun cases for many years. No. No? Nobody was really litigating to me Second Amendment cases. I sure wasn't. I mean, I had a civil rights practice and I was interested in taking cases that challenged ridiculous and unconstitutional governmental enactments. And so that was what prompted me to participate in the case. I did not, however, myself originate this case or the idea for it. That came from Clark Neely and Steve Simpson, two attorneys at the time at the Institute for Justice. Clark is still there. They saw the Emerson opinion come out, that Fifth Circuit case that had declared the Second Amendment to be securing a meaningful individual right and they recognized that this circuit split now posed a good opportunity or risk for the Second Amendment to be finally elucidated by the Supreme Court. It was an opportunity in a sense that finally there was a good chance to get this issue clarified. The court appeared to be probably as favorable as it could be expected to be to hear this type of claim. But there was also a risk because most Second Amendment claims that had arisen up to that point and generated bad case law were bad cases, typically arising in a criminal context where some violent or irresponsible person was charged with committing a crime and they asserted a Second Amendment defense against the gun charges that were leveled against them. And of course that was very easy for courts to be dismissive of those claims and to not take them very seriously. The fear was that with the circuit split that the wrong case would go to the Supreme Court and the United States Supreme Court would not really have the best presentation or the best platform in which to consider this right which of course is very near and dear to many, many millions of Americans. Then what did Clark and Steve then do after they so did they manufacture this case in some way with strategic element in mind? Well, in a sense, yes. Not a bad way, but I mean in a strategic way. There's absolutely nothing wrong with strategic civil rights litigation. This is a storied American tradition. The NAACP of course in the mid 20th century and early 20th century pioneered, they really sort of were the first organization that really perfected this idea that people can bring about political change through the courts after all. The Constitution guarantees us a wide array of rights and when the political branches don't respect those rights then it is absolutely appropriate and necessary to turn to the courts to check the political branches and to enforce federal constitutional standards against recalcitrant government officials. And so it's considered to be protected first of every activity for people to engage in this type of litigation and it's I think it's a noble cause and Clark and Steve obviously are in that business and so they took the idea to Bob Levy. Bob Levy at the time was a senior fellow in constitutional studies here at Cato. I believe he's not the chairman. He's not the chairman, yes. And Bob was also on the board of the Institute for Justice where Clark and Steve were working and I believe that Bob also co-clerked with Clark in federal court. So they took the idea to Bob. Bob agreed that it's a wonderful opportunity and it's worth doing and he agreed to fund it and organize it. And so along with another attorney Gene Healy who's now vice president here at Cato started working on the case but they needed one more attorney to round out the team and so Bob contacted me and asked if I'd be interested in doing that. And I said yes, it sounds like a good idea. I thought that the law was worth challenging. The strategy made sense and I was very happy to be asked to be involved in that. I bring this case in the District of Columbia as opposed to bringing it up in one of the states. Numerous reasons existed to bring the case in Washington, D.C. as opposed to somewhere else. First of all, Washington, D.C. had the craziest, most stringent and absurd law that we could imagine. It was a total prohibition on the position of handguns and also prohibition on the keeping of a functional firearm. That is if you had a rifle or a shotgun that the city would allow you to have registered, you could never have it operable for the purpose of self-defense even in your own home. Oddly enough, they would let you use a gun for self-defense in a business but not in a home. Strange distinction. Like for security guards or things like that? Supposedly. Supposedly. If you're defending your storefront, for example. But not in your home. So in your home you'd have to, as the person's breaking in, reassemble the gun. No, you can't. In a minute you could not reassemble the gun. It could not be functional. You could whack the intruder over the head with the gun. You could throw the gun at them. But there was no provision for using the gun as a firearm for the purpose of self-defense. And in fact the law was so stringent that you even needed a permit to carry a handgun supposedly if you could have one, which of course you couldn't. Some handguns were grandfathered prior to 1977. And those required a permit to carry inside your home. Never mind carrying a gun outside the home, which is a different issue. So those laws presented, we thought, a very radical and extreme platform in which to test the concept of the Second Amendment. It means anything. It must mean that those laws can't possibly be constitutional. But also Washington, D.C. is a federal enclave. It's a place where the Bill of Rights operates directly against the government. There is no need to consider the very messy question, as we would later discover, of incorporation or application. How does the Bill of Rights apply as against the states and localities through the Second Amendment? It's a different animal. Remember when the Constitution was first ratified, it only bound the federal government. There was this belief that if your local government, if your state government violated your rights, you could simply vote them out. It was a government that was much closer to you than this far away government in Washington. And who could imagine possibly the states violating people's civil rights? It was considered to be not too likely. It obviously was perhaps a bit naive. But nonetheless, that was the structure of our Constitution until the Civil War. The Civil War, of course, took place. And afterwards, the 14th Amendment was ratified, which bound the states to respect people's federal civil rights. It brought on national civil rights standards. But we didn't have to worry about that ensuing Washington, D.C. It's a federal enclave. So we didn't have to ask questions about how the Second Amendment applied through the lens of the 14th Amendment, which is a very different and complicated issue. And finally, the third reason, of course, aside from the fact that the law was crazy and it didn't have 14th Amendment issues in it, it was that the D.C. Circuit was itself open to the individual right. There wasn't really any adverse precedent at the circuit level that we had to contend with. So it was a perfect venue for all those reasons. I assume that the NRA was heavily involved in this case in some way. It would stand a reason, I guess, because they're always involved in funding it or somehow involved in this case? Well, the NRA was involved in their complete opposition to the case. This obviously is an organization that has many members and the organization cares about the Second Amendment. At least it's views of the Second Amendment. But when they found out that this case was in the offing, they expressed their extreme displeasure and opposition to it being brought. Remember, the NRA is a group that likes to engage in lobbying. This is considered to be their forte. They go into the halls of Congress. They go into state legislatures. They feel that that's where they can operate. Judges, they have less faith in or at least they had a lot less faith in at the time and they were not sure that we would win. And of course, the consequences of our losing would have been very bad. Nobody wanted to have a Supreme Court decision or any kind of decision, but certainly not a Supreme Court decision that declared the Second Amendment to be a collective right or a worthless right. Now, we were not oblivious to this concern. Obviously, we understood that there was risk involved. This was not something that we did lightly and it was not something that we were cavalier about. But we believed that the risk wasn't doing nothing because while we could, in theory, we could promise the NRA that we wouldn't sue and the NRA could promise us that it wouldn't sue, there's really nothing that either of us could have done about all those other zany, crazy criminal people out there who make claims in court all the time. And in fact, there were other Second Amendment challenges popping around in the courts at the time that we brought this. There were some other cases that we had discovered were crawling around and so we really felt that, look, we can't guarantee a victory. That would be ridiculous. But we can guarantee that we would make a very good effort and a better effort than some of these criminals and some of these lunatics and we did that. And what did the NRA do? They had some strategy they tried to do to counter you guys. That's right. Well, the NRA filed a copycat case called Seegers versus Ashcroft and then tried to consolidate into our case. And as they tried to, in a sense, elbow their way into our case for the purpose of presenting a variety of non-constitutional arguments that the court could then decide the case narrowly and perhaps avoid having to reach the constitutional issue and of course, should the court reach the constitutional issue, better for the NRAs as far as it was concerned for it to be involved rather than these other interlocutors who are these people. They're not us. It wasn't invented here. And so the NRA also saw that as a competitive threat. I mean, they do view it as a threat to their branding interests when other people do things in the Second Amendment and so we do see a lot of this turf-oriented activity from them and that still persists to this day. Maybe I'm being uncharitable, but I'm wondering, was there any sense that the NRA might also have been motivated by a desire to protect its lobbying interests? I mean, can you imagine if their bread and butter is lobbying Congress to get laws made that are friendlier to gun owners and the Supreme Court suddenly declares that gun owners are free and clear, then it might reduce the opportunities for lobbying and kind of reduce the importance of the NRA? I suppose that's possible, although I don't know that anybody was really thinking that all gun laws were going to go away just because there's a Second Amendment right, but I absolutely believe that the NRA doesn't need or want what it perceives to be competition in the Second Amendment space. I mean, this is a group that, you know, if they could do it, they would hold a seance and give James Madison a life membership. They really think they own this and they are very troubled by other people getting involved in what they perceive to be their turf and there is an awful lot of that coming out of that organization and that's too bad. But in any event, the NRA was concerned that we would lose and they were concerned that they weren't involved. And so they got involved and they brought arguments into the case that would have, if they had been successful, would have averted a decision on the Second Amendment, of course, would still not prevent us from a Second Amendment case in one of these criminal matters from arising. We didn't share the strategy. We also didn't believe that those non-constitutional claims were very good. So it's not just a matter that wasn't in our interests strategically to avoid the constitutional issue. We also didn't really have much faith in some of those non-Second Amendment arguments. And they also wanted a different attorney from the story. Oh, sure. Yes. They had their own lawyers, of course, and they weren't... But Stephen Hallbrook in particular, I think, was their chosen attorney who investigated Perez and is the gun guy. And you were kind of an outsider coming in without much experience in this area. Sure. I mean, all of us, none of us were, neither Ein nor Clark nor Bob, were affiliated with NRA. We didn't have the NRA seal of approval, as it were. And that's really where the matter ended as far as they were concerned. But they did bring this other case. They chose, for whatever reason, compelled them to add another defendant to the case. They decided to sue John Ashcroft, the attorney general of the United States. That was not necessary. John Ashcroft was not actually enforcing the home provisions of the D.C. gun laws, which were misdemeanors, and therefore under the D.C. Courts Act, or really the province of the district, but at least in theory, the NRA theorized that Ashcroft had something to do with this, and so they brought in the U.S. Department of Justice now. That sounds like a bad idea. It was a very bad idea. You typically don't want to bring in defendants who are only going to contribute to your troubles. Sometimes you need to sue additional people, and sometimes a case does go south if you don't sue everybody who needs to be sued. Obviously, the case is not redressable then. But no, the Justice Department brought new and interesting theories to the case on standing and jurisdiction that the city had neglected to bring and probably would not have thought of, and managed to knock out the NRA case, as well as five of our six plaintiffs. But we did survive and move on. That was a pretty interesting element, too, because you had six plaintiffs, including Tom Palmer, who's a fellow here with Atlas Network. It has been a guest on the podcast. It has been a guest on the podcast, and then they all got knocked out because they hadn't done the right motions, but at the end of the day, Dick Heller sort of remains as the plaintiff who satisfies all the standing motions, correct? Oh, that's right. Well, actually, people did do what was right. Washington, D.C., the D.C. Circuit has a unique rule on standing that's not followed in other parts of the United States, and in fact, the opinion that we received from the D.C. Circuit acknowledged that their decision on standing is contrary to what appears to be the rule laid down by the Supreme Court of the United States. Nonetheless, the court advised they would follow their own path rather than that which one would imagine to be controlling from a higher court. That's an extraordinary statement, and the D.C. Circuit standing doctrine is one that has come under fire repeatedly in many other cases, not just gun cases, but it's a continuing source of controversy. Nonetheless, they followed that rule. Interestingly, the rule itself originated in an NRA case, a case called Navigar, where the same attorneys, Stephen Hollbrook and Richard Gardner, I believe, was involved, also had encountered difficulties in suing the Department of Justice. Did you win at the D.C. Circuit then? We did. It was that surprising? I don't want to say it was entirely surprising, especially after the argument. The arguments went fairly well for us. We weren't – I don't think either result would have been surprising. I mean, it's not a case where you would go into it and saying, oh, we expect absolutely a particular outcome. So we were happy, but I don't think we would have been surprised to lose. We weren't surprised to win. It was pleasant. I think by – it was a surprise relative to – prior to starting the case, I think back in 2003, if I would tell people that I was handling a Second Amendment matter, they'd look at me like I was crazy. It was tinfoil stuff. It just simply was not – What about the Third Amendment? Exactly. I was given the Third Amendment and – Quartering of soldiers' matters? Absolutely. Yeah, exactly. It really was not seen as a respectable part of the Constitution. It was old. It was dead and buried. It was a collective right. Nobody cared. It was not considered to be a legitimate subject of litigation, which is why no one had done it, really, the way we had done it. I mean, it's – if everyone thought it was a legitimate and wonderful thing to do, then it would have been done. And then you walk into the Supreme Court about a year after the D.C. Circuit opinion. That's right. Feeling confident, would you say, or – it was your first time at the Supreme Court, so that was – I'm sure that a little bit nervous, but in terms of the substance of your argument, did you feel pretty confident? We felt confident that we had a great case. We felt confident that we were correct and we had done everything that could possibly be done to present it in the best possible way. And that's really all that you can do at the Supreme Court or really any other court. When you stand before that podium in front of the justices, that's the time to tell them what the Constitution requires and what the rules should be. And if they agree with you, then wonderful. And if they don't, that's obviously not such a good outcome. But nonetheless, that's the system we have. At the end of the day, somebody has to make these decisions and the Supreme Court is at the top of the decision-making process in our system. And so to get that far, to do a good job, submit the case as best as can be submitted, that was our task and we felt pretty good about that. At a general level, when you're arguing in front of the Supreme Court, how much do the actual arguments you make to the justices matter compared to, say, the briefs that you filed ahead of time that other people have filed and just the opinions of the justices that they already hold on these issues? I mean, are these cases won or lost in the oral arguments? Not really. I mean, it's easier to lose a case at oral argument than to win a case at oral argument, although both have been done. But the bottom line is, look, the Supreme Court and other courts as well, it's not just the Supreme Court. Courts read the papers. Most of the argument is done after a very long process of considered research and writing and drafting and submitting views that can be researched, that can be read, that can be the subject of memos going back and forth amongst the justices. It's not as though the court goes into the argument never having thought about anything and listening to 30 minutes of stuff from the lawyers is going to go ahead and make a decision now. I know in our culture, we sort of venerate the legal process. Everything ends in a trial on TV. It's resolved in 44 minutes plus commercials. None of these lawyer shows or movies ever show judges reading briefs or lawyers drafting discovery. I mean, the law is not usually as exciting as the dynamic courtroom scene where Tom Cruise is yelling at Jack Nichols. I mean, that's not reality. It's not the way the Supreme Court works. I know that many people are disappointed with Supreme Court arguments because they expect somebody to get up and give some stemwinder, some passionate Patrick Henry speech, and that's just not the way it works. You're supposed to answer the justices' questions. They obviously have concerns based upon what they've read in the briefs. They are interested in elucidating the written material. But it's really the written material that forms the basis of your being there. And it's the written material that almost always is going to determine the outcome in the case. So argument is exciting. It is interesting. It's the first chance that we get to perhaps see how the justices might be approaching the case, what types of issues they're interested in, what did they see in the case that they think is worthy of questioning. And so it's exciting for us. It's often seen as a preview of what the decision might be. But it's not as though the things that are set in that courtroom are often going to be the determinative factor as to the basic outcome, especially in a case like this where there's a very heavy-duty constitutional issue. Well, that being said, counsel, Justice Burr says a question for you. You come here to say that the Second Amendment conveys an individual right. And I read the Second Amendment and it says, a well-regulated militia being necessary to the security of a free state. The right of the people, not a person, to keep in their arms shall not be infringed. It could say it much clearer what's with all the extra wordage there that seems to tie it to a militia. The Constitution could always be much clearer. I mean, I'm not so sure what commerce among the states means when the Congress has the power to regulate that activity. Does that mean the ability of Virginia to sell a mule to New York, commerce among the states? I don't know. But certainly the Second Amendment has some linguistic ambiguities as far as some people are concerned. And let's take a look at that. The first part of the Second Amendment tells you an opinion. It's the framers' opinion that a well-regulated militia is necessary to the security of a free state. Now, that opinion could be wrong. It could be that the only thing you need for the security of a free state is good diplomacy. Maybe Secretary Kerry does such a wonderful job or maybe you need a nuclear defensive umbrella or a large standing army. Who knows? But that's their opinion. And so they're telling you that because we hold this opinion about the militia, we are going to preserve the right to keep in their arms. Notice the article, the right of the people. So they're referencing something that exists. It's a concept that exists. And in fact, it does exist at law prior to 1791. There was a right to bear arms in the Anglo-American legal tradition going back a very long ways prior to the Revolutionary War. It was understood it had a certain scope and the Supreme Court elucidated that. So it's the right which is preserved. And it's preserved because we value the militia. Now, what's the connection between the two? Well, the militia, as it functioned in 1791, was dependent entirely upon. It was composed of ordinary civilians who were expected to show up for militia duty when the need arose, caring, bearing their own privately maintained weapons. If people didn't have the right to keep their arms, they could not function as militia, as this militia which is so necessary to the security of a free state. It was believed that a malevolent government that wanted to prevent people's ability from acting as militia would disarm the people and thereby take that option away from them. So what the framers are telling us is, look, we really value the militia. That's a reason why we are codifying the right because if you can't exercise the right, you can't be militia. But that doesn't mean that that's the only reason we're doing it and it sure doesn't mean that the right has no other application because the right obviously has other applications. Couldn't someone argue on that very point that if the framers began this with an opinion, like we think that in order to have a free state, we need a militia, therefore the right to bear arms that someone could turn around and say, look, we know from a couple hundred years of experience that you don't actually need a militia to maintain a free state. And so therefore the right to keep and bear arms is a non-starter and the framers would have agreed. No, because the fact is they have ratified this concept and we have to obey by that decision. They've ratified, even if they ratified it for a reason that now we no longer think is very good, we can erase the entire constitution on that thinking because the constitution has a preamble. The constitution tells us we the people of the United States, why are we establishing the constitution? Well, to ensure domestic tranquility and all these other things. What if we determine that parts of this constitution don't actually serve those purposes? Can we then discard the constitution to say, well, we don't really have domestic tranquility. We haven't established justice. Let's get rid of the president. I mean, you can't do that. There's another preamble in the constitution. In article one, the Congress has the power to create intellectual property laws to promote the progress of science and the useful arts. What if we determine that a system of corporate and patents doesn't promote the progress of science and the useful arts? Does that mean we can – the Congress's laws in this area are all invalid because we've made a policy choice that it's no longer a good idea to have these laws? Of course not. And likewise, if you publish a book that advances sort of a radical back-to-nature anti-science mentality and your anti-progress and anti-useful arts, that book would still have corporate protection available to it when it's created. So, again, we don't have purposes – preamble purposes control the continuing existence of the operative text. But at the very least, doesn't it seem that if we are going to use this militia term, which doesn't really exist anymore, and we're talking about something written in 1791, so at the very least, are they only talking about muskets and single loading musket balls you load from the muzzle? Does this actually apply to automatic weapons and flamethrowers and tanks and grenade launchers and rocket launchers? They weren't even thinking about that, so it doesn't even make sense to read it in context of history rather than the present? Well, first of all, the Constitution is not frozen in amber in terms of technology, right? I mean, the Air Force is not unconstitutional just because there were no airplanes, right? Congress had the power to raise an army. They didn't have any airplanes, but that doesn't mean the Air Force is unconstitutional. Maybe it is not. I'll entertain the thought. And then the First Amendment guarantees you the freedom to worship the religion of your choice or no religion, but that doesn't mean that you can only worship those religions that were in existence in 1791, right? You can be a Mormon or a Rastafarian or other things that weren't here in the United States back in the day. Likewise, they're right against search and seizure. You have certain spheres of autonomy in your person and your possession in your home that cell phones. There were no cell phones and the Supreme Court has held in various contexts that your Fourth Amendment rights still apply. For example, wiretaps, cell phones. Can the government bring a heat-seeking device to see if you have growing lamps inside your house so that it won't? No, it can't. And so likewise, the Second Amendment is not going to be limited to those articles that existed literally at the time of 1791. However, it doesn't mean that every single thing that goes boom is going to be constitutionally protected. There are going to be some limiting principles that are inherent in the right and in its scope as that was understood. And so in Heller, we had a law dealing with a handgun ban, right? So we had to ask whether or not handguns were arms, and if so, which they are, are they protected arms? Because not every arm is going to be protected. We see this in the speech area. Speech is protected, but not perjury, not terroristic threats, right? And likewise, there might be some arms that are not protected. And so what's going to be the limiting principle? And the Supreme Court gave us what's going to be known as the common use test, right? Handguns, we were told by the city and all of its allies, are unaccountably dangerous. They are used very frequently in crime. They're involved in accidents. There's all kinds of mayhem and social costs associated with handguns. And probably more so than with any other type of arm. Definitely more so than so-called assault rifles, for example, right? Yeah, there's about 6,200 handgun deaths per year and about 340, about 100 assault rifles. Any rifle. Any rifle. 340 for any rifle. But the court said it's not important. It doesn't matter that handguns are misused by criminals. What matters is handguns have a common traditional application by law-abiding responsible people for traditional acceptable purposes, including primarily self-defense, which is the interest at the core of the traditional right to keep and bear arms. And so whatever else happens with handguns, people expect to have an expectation of having handguns available to them for the purpose of self-defense. And so the government cannot ban them completely. However else it might want to regulate them, you cannot ban handguns. And that's the test that should be used by courts going forward in examining challenges to other weapons laws, where there's a categorical ban on a weapon or on some part of a weapon, like an ammunition magazine, for example. Yeah, like a 30-round magazine or something like that. The correct approach is to ask, what does this do and is this how people would expect to use it? So if you have a rifle, even if it's a very scary looking rifle, it looks like a military weapon, it holds however many rounds. If this is something that people would have the expectation of having available to them in common use for a traditional lawful purpose, then that item cannot be prohibited by the government. And that's a very useful test. It doesn't protect everything out there. I'm sure there are people out there that want all kinds of stuff that's probably not going to qualify, but it's as expansive a test as we can get to protect our rights. Now, lower courts don't always honor this test. There are courts that are having trouble following it. They will say, well, okay, the rifle is protected. It's the subject of the Second Amendment because it's in common use, but we can still ban it because there's some other reason. That but part is not acceptable in Heller. And I hope and expect that we would see a future case coming to the Supreme Court that would deal with that. So this test, this common use test that the Supreme Court gave us, looks like it's backwards looking. So it looks to do people already have an expectation of being able to use this thing in these legitimate ways. And if yes, then you can't ban it. But how would that apply to – I mean, we talked about – it's Trevor brought up one of the issues that people raised with the Second Amendment is that the framers when they wrote it had these single-shot muskets and other very low-tech weapons. And then things have changed. And people say they never had assault rifles or automatic weapons in mind. Presumably technology will keep improving. Does this test – this test would seem to preclude the right to own new things because by definition these new things can't have a culture of acceptance because they haven't been around. I don't believe that that's the case. For example, there has been at least one court so far that I'm aware of which has extended Second Amendment protection to stun guns, Taser-type weapons. The way to look at it is to see that it's – what your expectation might be given the weapons function. So for example, if something new were to be invented, I don't know, some type of ray gun, I suppose, okay. But it functioned much as a traditional farm does and it had that same application in size. Then we would look to that and to determine whether or not it's protected. In this way, it's actually analogous to the Fourth Amendment. The Fourth Amendment, of course, guarantees you certain spheres of privacy. The question is whether you have an objectively reasonable expectation of privacy in some location or thing or behavior. In the 1920s, the Supreme Court held that the Fourth Amendment did not cover wiretaps. In the 1960s, it changed its mind. The answer in the 1960s in the CATS case was not, well, the defendant should have gone to law school and he would have studied our prior cases. He would have known there was no expectation of privacy and therefore he's out of luck. Rather, the court looked to traditional American expectations as to how this right would function or should function, where people should have respected a sphere of privacy and it was able to overturn its precedent. The Second Amendment should function the same way. But the other question on the other side of this, not just future weapons, but maybe one of the reasons that automatic weapons are not in common use begins with the National Firearms Act of 1934, the subsequent bans in 1968 or in 1986. So now they're very uncommon, but by way of the government. So does that mean that we should maybe challenge the automatic weapons ban? I would not challenge the automatic weapons ban for various reasons, but I don't believe that the literal number of these firearms out there is necessarily going to supply the answer. Obviously, the plaintiffs in such a case would say exactly what you've just said. Well, the government taxed it very heavily at its infancy. There's been a limit since 1986 on the number of machine guns, for example, that can go on to the registry. And so we've had these artificial constraints placed upon their numbers and that's why they're not common. The government would respond by saying no. Those things may have limited their acceptance in society, obviously the tax and the subsequent limitation, but the real reason why they're not in common use or they would not be in common use is the better question. Would they be in common use is because there is no machine gun season for deer, because you would not use a machine gun to defend yourself against a rapist or a mugger in a parking garage that the government would say that these are not arms that have a proper lawful traditional application given their function. And I believe that the government would probably prevail on those views. I personally think that we're at a point now where it's hard to get courts. There's a lot of resistance to the Second Amendment. It is tough to win these cases. There are cases where we have enough trouble gaining protection for ordinary semi-automatic rifles and handguns for magazines that contain 11 rounds, which is not a big deal. And given how high the hurdle is in practice, even if it's not something the Supreme Court would have imposed on us, but there are serious practical difficulties in containing protection for these items to go in there with machine guns and things that are at the very edge is simply not smart litigation. I don't believe that those cases have a chance and I don't think it's wise to bring them. Since this decision came down, have residents of the District of Columbia now been able to reasonably freely get handguns and own handguns? More or less. D.C. laws have improved. What we've seen, of course, is the city reacted with a very restrictive registration process, which over the years here and there, they've relaxed in certain ways. It is still too difficult to acquire handguns in Washington, D.C., but it's very far from impossible and there are many people who have handguns in D.C. And maybe it's just the nature of a place like Washington, D.C. where everything is going to be hyper-regulated. I mean, this is not going to be the Wild West in terms of anything, let alone guns. So perhaps people should adjust their expectations accordingly regardless of the fact that it's guns that are at issue. Nonetheless, we do have many people in Washington, D.C. now who have handguns, who have functional firearms in the home, and we get more every day and we're doing what we can to try to improve people's access and to keep fighting for greater freedom with those firearms. And have we seen the predicted awful results that many envisioned when suddenly more people have handguns? We're going to have a lot more deaths, a lot more crime, a lot more kids accidentally getting shot. No. And in fact, not only have we generally not seen an explosion of a crime or gun crime, I don't believe that we've seen a whole lot of crime committed with those handguns that are owned by the law-abiding responsible people who, in fact, have gone ahead and complied with all of D.C.'s laws and registered those firearms and had those licensed. Now, we have not seen any meaningful crime if at all from those guns. Now, outside of D.C., though, to the day that the Heller decision came down, I think it was the same day you filed another lawsuit and you didn't write it that morning, you were planning on this. I assume you had the complaint ready. What was that lawsuit? What was the strategy behind that? Sure. Well, as I mentioned earlier, the Second Amendment only applies directly to the federal government. It does not bind the states directly. For that, we had to fight the Civil War and we had to have the 14th Amendment ratified. The 14th Amendment provides that no state shall make or enforce a law which shall bridge the privileges or immunities of citizens of the United States. By that, everybody understood, meant that your Bill of Rights rights as well as some others are not to be violated by state officials and we know why that was enacted in the period of Reconstruction. Nonetheless, it's not automatic. The way that the law has developed over the years, the Supreme Court has, rather than incorporated wholesale the Bill of Rights or the 14th Amendment, has gone sort of a la carte piece by piece saying- Clause by clause. Clause by clause. This one we like, this one is okay now, this one we don't. Most of them, some of them have not been incorporated, but most of them had been incorporated by the time the Heller decision had come out. But the last word on the Second Amendment from the 1870s was that it was not incorporated against the states through the 14th Amendment. Now, that decision also said the First Amendment did not apply to the states and that part of it had long since been, of course, overruled. But there was nothing fresh on the books about the Second Amendment and we knew that it's great to get rid of crazy laws in D.C. and it's nice to restrict the powers of the federal government but most people, they interact with state authorities and most gun laws exist at the state and local level and so for the Second Amendment to have any sort of meaningful application for modern life in America, it really does need to apply to states and local officials just like every other right. And so we filed a lawsuit called McDonald vs. City of Chicago Challenging Chicago's Law, which was virtually identical to D.C.'s in terms of the handgun ban. And both cities were so safe and peaceful. Oh, absolutely, yes. Yeah, islands of tranquility in a storm of mayhem. But nonetheless, we did sue Chicago immediately and the objective there obviously was to bring Second Amendment freedoms to people as against their immediate local officials. And you find yourself back at the Supreme Court with that case within two years. Correct, that's right. We're at that case moved very quickly. And then you watch back into the courtroom and this time the argument was not ostensibly about guns because that was supposedly decided. We decided five to four that you had an individual right to keep and bear arms. This was just about whether or not it applied to the states. And this time the question was about how are we going to apply it to the states more or less? How did that argument sort of shake out and how did the case shake out in general? Well, it was a fascinating case in many ways because it really brought together strange alliances and really discombobulated a great many people on issues that had nothing to do with firearms. As you mentioned, it really was not a gun case so much as a civil rights case, a general case about how people relate to their state and local officials generally with respect to individual rights. When the 14th Amendment was ratified, everyone understood that the first part of it, section one of the 14th Amendment, the one that says that no state shall make or enforce any law which shall bridge the privileged disarmuities of citizens of the United States, meant your basic rights, including the bill of rights. And that was controversial. It was very controversial. The South sure didn't like it. It was extremely difficult to get through but they obviously ratified it. And almost immediately, the first case in the Supreme Court to deal with the meaning of the 14th Amendment, a case called the Slaughterhouse cases arising out of a monopoly in Louisiana on the slaughtering business in New Orleans, eviscerated the clause. Five to four a majority held that the rights, the privileges or immunities that are protected by the 14th Amendment are only those that flow out of the existence of the government itself. Now what does that mean? It means you have the right to a passport. It means you have the right to the protection of the Navy on the high seas. It means you have the right to visit the Treasury and take a tour of, I guess, the Bureau of Engraving and Printing. It's real bread and butter stuff. All the stuff we fought the Civil War over, right? I mean, as one law professor once said, Arkansas was not sinking people on the high seas. That's not why we fought the Civil War. Everybody knew what the Civil War was about. But we had a Supreme Court that was absolutely not interested in continuing with reconstruction. By that time, it was the American people, some of them at least, were tired of the matter. And so this very creative, very narrow view took hold that the only rights that you had available to you under the 14th Amendment were these basically worthless, bizarre rights that no one had thought of, but the pre-existing rights that you had, your right to speak, to worship, to have guns, all those things which were essentially natural rights, as it were, that are protected by the Constitution. They're not created by the Constitution. They're simply secured, right? Remember, it says, the right of the people shall not be infringed. It doesn't say we are now creating a right. No, it says there's a pre-existing right and you shouldn't infringe it. Those pre-existing rights, not protected. And so we embarked upon a very sad period of history in the United States where states were free of having to trouble themselves about whether they were violating the Bill of Rights, not just the Second Amendment, but all of it. Now, over time, the Supreme Court came to reconsider and so they developed a doctrine which was called selective incorporation. They looked at the due process clause, the clause that says that no state shall deprive people of life, liberty, or property without due process of law and determined that that has a substantive element to it such that if the state is violating some right, it's depriving you of the due process of law. The law itself cannot be truly law because it's violating some basic principle. But not every right gets incorporated through this process. Only those rights that the court thinks are really important or worthy of consideration if they are what the court said implicit in the concept of ordered liberty. That was the ultimate formulation. So we made both arguments in McDonald. And there's a reason why we... Both being the due process clause and the privileges of our immediate clause. That's right. The due process clause argument was the argument that was very well established. Every judge has strong feelings about it one way or the other. It remains controversial but it is part of the mainstream of American law. You obviously have to argue that and we did because that's the primary tool for incorporating. But we also knew something else. A couple of other things. First of all, the Slaughterhouse cases were wrongly decided. It was one of the most outrageous decisions to ever come out of the Supreme Court of the United States. And it's one that we had independent interest in challenging. And also a vast majority of scholars of the 14th Amendment agree now that the Slaughterhouse cases were wrongly decided. It is absolutely understood by everybody that that... There used to be a strain of thought that tried to defend Slaughterhouse. That's been largely debunked. The scholarship on that is very well established and it's simply not a controversial position anymore that Slaughterhouse was wrongly decided. It's considered to be a disaster. We knew that also there are some justices on the Supreme Court who are open to the Slaughterhouse cases being revisited. Justice Thomas had written that very explicitly. There had always been justices here and there over the years who volunteered their opposition to Slaughterhouse. We've never had five of them at one time on the Supreme Court, but we've had many of them. So we knew that people who are called justice and show up at the Supreme Court for work might believe in this. So it's important to preserve it. We all seem to do process theory. It's very controversial among particularly the more conservative right-wing justices as it were. Justice Scalia, for example, has been just completely opposed to this idea that you can have something like substantive due process. He's used very interesting language to decry it. We had no way of knowing that we would have five votes on either theory, but we felt that by preserving both arguments, we could add up to five. And so it was necessary to preserve both claims, not just because it's the right thing to do, but also because we'd like to count to five, because that's what you need to do to win the Supreme Court. We also wanted to get the support from the more left-wing progressive people who don't much care for guns, but who nonetheless want to get rid of the Slaughterhouse cases for their purposes. They are very interested in establishing that the incorporation of civil rights through the 14th Amendment is not just something that a bunch of hippies made up in the 60s. It actually does have real roots in text and tradition and in the original history of the 14th Amendment. And so for all those reasons, we preserved both claims. And in the end, we were vindicated because the court fractured. It was a 4-1-4 decision. There were five votes against due process incorporation, the four so-called progressive justices, plus Justice Thomas, who absolutely refused to go along with it. And there were four votes for only due process incorporation, but some conservatives are squeamish about revisiting the Privileges Immunities Clause. And so they only went with due process, and Justice Thomas only went with privileges or immunities. And so that did provide, in fact, the winning vote. And had we not done that, we would have lost, which is what happens to you at the Supreme Court if you don't preserve your arguments. And that's happened before. The most obvious recent case, of course, the partial birth abortion case where five to four of the Supreme Court ruled against the challengers to the partial birth abortion ban, but there was a concurrence by Justices Scalia and Thomas who said, hey, we don't much care for abortion rights. We don't believe this such a thing. But nobody had argued to us that Congress lacks the power under the Commerce Clause to regulate abortion. It's a healthcare decision. We're not so sure Congress can regulate healthcare. Perhaps that argument had been made. You know, maybe it would have been a different result. That case could have been 6-3 the other way instead of 5-4 against the challengers. And we didn't want to be in that situation. So we preserved both claims. It was the right thing to do. And, of course, it proved to be what saved the case. So now that the Second Amendment has been incorporated against the states, what issues are left for the Second Amendment? Are you working on any cases right now? Yes. Many, many cases are winding their way through the courts. I'm working on many of them. There are many issues to be determined. Who can have guns? Under what circumstances? Can you carry a gun? Where? Under what circumstances? What type of guns are OK under the Second Amendment? I mean, there's so many regulations dealing with firearms and so many Second Amendment challenges to those regulations. It has, indeed, become a vast new area of litigation. Yeah, we're really looking at a nascent right here. Absolutely. We took a century to define the First Amendment plus. We're not done with the First Amendment. Whether I can guarantee you, I don't know what the cases are going to be, but I know that five years from now, there's going to be a First Amendment case at the Supreme Court. There might be a Fourth Amendment case. Well, of course. Of course. You know, these things, you know, as the American society develops over time, the government always thinks of strange new ways to infringe on people's rights and people go to the courts or different questions arise. And likewise with the Second Amendment, I mean, there are so many questions that have not yet been answered just based on the things that have already been around for some time. So who knows what the future might hold. But no, there is a lot of litigation going on. And it's a very exciting field. Do you think that the next case, one of the issues is concealed carry, for example, just to give a flavor of the kind of issues, May issue and Shell issue states. There's a controversy there. So what are those types of concealed carry regimes and what's wrong with the Shell issue? Sure. The Supreme Court has not been eager to take too many Second Amendment cases since McDonald's, in fact. It's not taking any. But the case that came closest, and that is it was considered at three different conferences before cert was denied was a case I had called Drake versus Dredging, which brought about that very question. What do you do about permitting systems that provide the only special people who are approved by the government get to exercise this particular right? There is an emerging circuit split on that question. It's one that I believe the court is going to jump into. And there are several cases now popping up as of right now, two in California are before the Ninth Circuit considering whether to hear them on bonk, Richards versus Yolo, which is my case, and also Proudha versus San Diego, or both. As of this today as we sit here, pending an on bonk vote, there are a number of cases coming out of Washington, D.C. Tom Palmer's case is there. So I think those cases could bring that back to the Supreme Court. Generally speaking, people cannot be required to prove that they deserve to exercise their constitutional right. Give me an example of what kind of thing these shell issue states require of you. What do they say? The May issue states. Yeah, the May issue states. Sorry. Well, in New Jersey, the state says you need a justifiable need to exercise. Determined by? By the police. The police determines whether Officer Bob decides if I get a justifiable need. Well, the foreman is some official in the state police makes that determination. In Maryland, it's a good and substantial reason. I mean, could you imagine if we had a law that said, well, you need a good and substantial reason to speak or to worship, or hey, how about to have an abortion? I mean, Arizona tried this. You needed a medical necessity to have an abortion at a certain stage. And the Ninth Circuit made quick work of that just a couple years ago in Isaacson v. Horn. No, it's not the right of the doctor to decide. It's the right of the woman, in that case, to decide whether to have the procedure which is established as a right under Supreme Court precedent. And so the idea that, well, you have a right to do something, but we think it's such a bad idea that you don't actually get to do it unless you have a rare, really compelling reason to do so. It's just completely formed to the very concept of rights. It just doesn't make any sense at all. If you have the right to do something, then you have the right to do it. Now, it doesn't mean that it can't be regulated. There are going to be time, place, and manner restrictions. The court has already said that. There are going to be dangerous people who can be disarmed. Obviously, if somebody wants to carry a gun, but they're a serial killer, or some super heavy drug dealer, the government can take away their guns. That's not really a controversial point. But that doesn't mean that law-abiding responsible people don't enjoy this ability to exercise a right. We'll see that determined very soon. Looking forward over the next couple of few decades, are you optimistic about the direction we're going with Second Amendment rights? I'm optimistic in a limited sense. There is a great deal of resistance by the courts. There are judges who don't seem to care much for the Second Amendment, and there are those who may not care one way or another, but they treat it like a serious, meaningful right. Of course, we're not going to win every case. I understand that. Nobody is perfectly happy with all First Amendment law. Nobody is perfectly happy with all Fourth Amendment law. Nobody is going to be perfectly happy with all Second Amendment law. However, we should be a little bit concerned about the future in terms of who is going to be making these decisions. Judicial nominations do matter. We have large segments of American society where nobody has a gun, nobody would admit to having a gun, where guns are seen as foreign and scary and strange, and people who come out of perhaps that type of background who don't see much utility in firearms, to that mindset, every regulation looks appropriate, right? If you place no value on the activity because you can't relate to it, then everything looks reasonable in terms of what a restriction might be. I think this is the larger cultural problem that we have in the gun debate is that we have almost two segments of the country and one of them understands firearms, appreciates them, sees some value in them, and is therefore able to consider them as an object of constitutional protection. And just a part of society that simply has a hard time comprehending that there's value in it. And when judges flow out of both of those groups onto the bench, you see the differences of opinions that manifest themselves, and I'm not sure what the solution to that is, but it's something that's always going to keep the debate lively. Thanks for listening. If you have any questions or comments about today's episode, you can find us on Twitter at Free Thoughts Pod. That's Free Thoughts P-O-D. Free Thoughts is a project of Libertarianism.org and the Kato Institute, and it's produced by Evan Banks. To learn more, you can find us on the web at www.libertarianism.org.