 I first got involved in the issue of gun violence on July 1st, 1993. On that day, I was working at a law firm in the 101 California Street building in San Francisco. My former office was on the 23rd floor, and it was a day like any other. Then at about three o'clock, an announcement came over the loudspeaker saying, there's an emergency in the building, everybody lock your doors. I didn't know there was a loudspeaker, I'd never heard any announcements. We also didn't have any locks on our doors, so it was kind of a shocking thing to hear. We didn't hear anything else from the building that day about what was happening, but my firm had a moot courtroom, which had a TV in it. So those of us at the firm gathered in the moot courtroom and turned on the TV. And we learned that there was a gunman who was loose in the building. Subsequently, I learned that a former disgruntled client of the law firm of Pettit Martin, which was located on the 35th floor, had come into the building with a couple of assault weapons and a handgun and began shooting. And when he was done, he had shot 14 people, eight, fatally. I was lucky that day, I didn't know anybody who was shot. I didn't lose a loved one or a colleague, but the event really shook me up both personally and professionally. I learned within a few days that lawyers at Pettit Martin had immediately moved to form a new organization to use the unique skills of lawyers to do something about our nation's epidemic of gun violence. I reached out to them and started volunteering, and then a few years later, I was able to come on staff. So just to tell you a little bit about what the Law Center to Prevent Gun Violence does. We provide free legal and technical assistance to legislators who are either seeking to enact or to defend laws to reduce gun violence. We draft model laws, we testify at hearings and through our network of pro bono attorneys around the country, we file amicus briefs in second amendment cases. We track all second amendment cases nationwide. And we also secure pro bono defense counsel for cities that are being sued. We also track all state gun bills nationwide. So before the 101 California Street shooting, I really didn't know much about gun violence or about our nation's gun laws. I tend to have progressive views about things, so I thought, yeah, gun control, that seems to make sense. But I really had no idea about the toll that gun violence takes on our nation. The last panel did an excellent job of describing that. And essentially, we all read in the papers about these horrific events that take place, the Newtown shooting, the Aurora Colorado shooting. These things that are, Sandy Hook, but they aren't representative of what's happening in our country each and every day. And 80 people are dying each and every day in communities all around the country, like Philadelphia. I was also shocked to learn once I got into this issue how weak our nation's gun laws are. When I went to law school and learned about the law generally, I would say that most of the laws seem to make sense. They were rational. But when it comes to our federal gun laws, they are completely irrational, and they don't make sense, and they are filled with loopholes. In fact, the US has the weakest gun laws of all industrialized nations in the world. And we also have the highest rates of gun death. The biggest loophole in federal law and the one that's been in the news is the private sale loophole. So essentially, under federal law, private, I mean, federally licensed gun dealers, and Jan mentioned the concept of somebody having to have a federal license, they have to conduct background checks on prospective gun buyers. But you don't have to be a federally licensed gun dealer to sell a gun. In fact, about 40% of all gun sales are made by unlicensed sellers, so they are completely outside the system. There's no background check, there's no private sale, there's nothing. So in the requirement that dealers conduct background checks was imposed as part of the 1993 Brady Act. But prior to 1993, even though the 1968 Gun Control Act sets forth various categories of people who aren't allowed to buy guns, there was no enforcement mechanism whatsoever. So before 1993, a gun dealer would ask a person, they'd fill out a form, are you a convicted felon? Have you been dishonorably discharged from the military, these type of things? And if the person said no, that's like, okay, well, that's good enough for me, here's your gun. So at least there's been improvement, but we still have this massive loophole. We also have no licensing of gun owners and no registration requirement for guns. Personally, I think that guns should be regulated the way that cars are regulated. If you're going to drive a car, you need to get a license to show that you know what the laws are and that you're capable of driving. You need to register your car so that if something happens to it, the authorities know who the vehicle belongs to. Well, we don't have anything like that at the federal level, even though actually most people think that we do, but we don't. In fact, under federal law, federal gun purchaser records are destroyed within 24 hours. And there's a provision in federal law that prevents the creation of a federal registry. So not only do we not have it, but federal law specifically says that we cannot have it. We also don't ban assault weapons or large capacity ammunition magazines. And those are the type of magazines that are used in all of the mass shootings that we hear about. In 1994, one of the first things that my organization did was to work for the passage of the federal assault weapons ban. So that bill did pass in 1994, but it had a sunset provision and it expired in 2004. So we did have a ban on those things at one point, but no longer. We also have no waiting period. As part of the Brady Act initially, there was a five day waiting period. In California, we have a 10 day waiting period, and that allows law enforcement time to conduct a thorough background check. But it also gives people time to cool off, so that if they are thinking about suicide or some sort of other rash behavior that there's some time for them to stop. But under federal law, the five day waiting period expired, so we have what's an instant check now. Also, if a background check is not completed within three days, the dealer can go ahead and transfer the gun even if he or she has not heard from the Bureau of Alcohol and Tobacco and Firearms whether the person is prohibited or not. So these so-called default transfers happen and thousands of guns are put on our streets. And law enforcement, if they later find that the person was prohibited, they then have to go out and try to retrieve those guns. One of the things that I found particularly shocking when I learned about this area was that guns are exempt from the Consumer Safety Act. So that's the federal agency that is supposed to ensure that the products that we all use are safe. But guns are the only product now that aren't governed by that act or governed by any other regulatory agency. So you have the bizarre situation now where a toy gun, if it's found to be defective and hurting a child, that can be recalled by the federal government, but a real gun cannot. Also, we have a federal immunity law, which bestows upon the gun industry, manufacturers and sellers almost complete immunity for their negligence. And I know John Lowey will get into that a little bit later. And no other industry receives such preferential treatment under federal law. So under our federal system, states are free to adopt stronger laws than we have at the federal level. But historically, most have not. In fact, what we've seen over the last 30 years is a gradual weakening of state gun laws. Some of the laws that states have been adopting in the past few years have been pretty crazy. Some of them have gotten into the news. For example, there have been a lot of laws passed to allow guns in churches and in bars and in courthouses. A bill in Georgia just passed the house recently and is expected to pass the Senate there. Hopefully, the governor will veto that bill, but that's an example of one of these guns anywhere bills. There's also a bill that was passed in Florida which prohibits doctors from asking their patients about gun ownership. They're advising them about gun safety. That law was challenged and was struck down by a lower court as being in violation of the First Amendment. And it's on appeal now to the 11th Circuit. Another crazy law, or I call it crazy laws, these laws that purport to exempt states from federal gun laws. So Montana was the first state to adopt this kind of law. And then it basically says, if a gun is manufactured in Montana and it stays within our borders, the feds need to stay out. We don't have to follow any federal laws, including the laws on background checks or anything else. So that law was also challenged and was struck down by the Ninth Circuit. But despite the fact that these laws are being struck down, they in some states are very politically attractive and so they keep getting passed. Some of the laws though that have been passed over the last 30 years are more insidious and more dangerous than the laws I just mentioned. A big trend has been a weakening of our state's concealed carry laws. So in most states, you have to get a permit to carry a concealed weapon. It used to be that law enforcement had discretion in all states to decide whether or not it was appropriate for an individual to have a gun. But the NRA promoted the repeal of those laws, so now we've gone from having a majority of what are called May issue states, where law enforcement is vested with discretion about the issuance of policies to having shall issue states. Where unless a person is a convicted felon or otherwise prohibited, that person can get a gun and carry a gun in public. The lax concealed carry laws are particularly dangerous when combined with other laws such as the standard ground or what we call shoot first laws that have been adopted in most states. And Susan mentioned those laws earlier. In Florida alone we've repeatedly seen how dangerous these laws can be. You have the Trayvon Martin shooting when George Zimmerman who was a concealed weapons holder, Michael Dunn who shot Jordan Davis in the gas station over a dispute about music in a car. He was lawfully carrying a concealed weapon. And then there was the case in the Florida movie theater where the man shot the person sitting in front of him who was texting while the previews were going on. And he's asserting a standard ground law because he alleges that the guy threw some popcorn at him. So these laws are really outrageous but again with the standard ground or shoot first laws, it isn't so much the concept that people don't have a duty to retreat in public. Which is kind of how they started. It's the fact that not only do they not have a duty to retreat but they are then emboldened to act aggressively and to take the law into their own hands when concealed weapons permits are basically given out like candy. Another area where there has been a weakening of laws is around the concept of preemption. So under, as I said, there are federal schemes states can adopt stronger laws than the federal government can and typically local governments can adopt stronger laws than the state government can. Unless that authority has been taken away by the state legislature. And it used to be that local gun laws were very common in this country. But again, the gun lobby started promoting laws to prohibit local governments from regulating guns. And so now there are only about a handful of states that can regulate guns at the local level. Fortunately, where I live in California, local governments have a lot of authority. In fact, over the last 20 years, cities and counties have adopted over 300 strong gun laws and many of those have trickled up to the state level. So they've served as the models for state legislation. So even though I've said all these negative things about the state of our nation's gun laws, when you look at the big picture, things are finally starting to change and things are getting better. The Newtown tragedy last December really triggered a cultural shift in our nation. And people have, you know, for me, I was kind of surprised or I wasn't surprised. I just didn't know how people are going to react to Newtown because we have seen so many mass shootings in this country. And after each one, I would think, well, okay, now this is, you know, Columbine, all these kids. This is finally going to do it. Or when people were shot at a movie theater. Or actually when Gabby Giffords was shot, I thought, okay, well now Congress is going to do something because one of their own has been taken down. So when that didn't happen, you know, even though it was just horrific when all these little innocent little kids were shot last year, I just didn't know what was going to happen. So, you know, I was pleasantly surprised to see that it seemed to be the straw that broke the camel's back and that people finally said enough is enough. So we have seen that change. And public opinion polls show that Americans are sick of the bloodshed and they want something to happen. And when you look at the policies, universal background checks requiring background check for all gun sales. Polling shows that 90% of all Americans support that. And think how many other types of policies can you think 90% of the public supports that we don't have. So we have 90% of the public supporting that, 80% of gun owners, and 70% of NRA members. So the NRA came out in opposition to the federal bill that was proposed last year. They oppose universal background checks, which just shows that they don't represent their members, and they certainly don't represent the American public in general. So we were disappointed, of course, to see the background check bill fail last year, even though it was not a particularly strong bill. Just showed that Congress would not do anything on this. So we were disappointed, given overwhelming public support, but not terribly surprised. And we just hope that if Congress continues to ignore the will of the people, that those members who have done that will get kicked out of office. In the meantime, the good news is that more and more states are stepping up. They are not waiting for Congress to act in this area. So as I mentioned earlier, we track all gun bills. And in the past, say over the past five years, typically the ratio of good bills to bad bills has been two to one in favor of bills to weaken existing state law. So last year, we saw that flipped. And so for the first time, there were twice as many good bills than bad bills. We received requests for assistance from 30 states last year wanting to adopt commonsense gun laws and 21 states passed gun laws. And eight of those laws were very significant involving background checks, mental health reporting, domestic violence issues, bans on assault weapons, bans on large capacity ammunition magazines. This year, we're tracking over 1,300 state gun bills. And although the pace has slowed a bit and now it seems that it's about even as far as the ratio of good bills to bad bills, there's a lot more momentum than there used to be and people are a lot more organized at the state and local levels. So there's really been historic progress when you look at the shift in state gun laws over the last even five years, it's been historic progress. So the final point I want to make is that strong gun laws work. The Brady bill alone, even though it has a loophole, it has stopped over 2 million prohibited people from buying guns. So the law has worked. There's also a strong correlation between the strength of the state's gun laws and its rate of gun deaths. We did a joint publication with the Brady campaign where we rank all state gun laws and we found that out of the ten states with the strongest gun laws, seven of those states also had the lowest rates of gun deaths. So there's a clear correlation between the strength of the state's gun laws and its rate of gun deaths. So California is a great example of how this can work. Since the 101 California Street shooting, California has adopted 30 strong laws to reduce gun violence. We've closed the most glaring loopholes in federal law and also adopted several other types of cutting edge laws. And the laws have had a huge impact. In the last 20 years, our rate of gun deaths has dropped 56%, which is nearly twice as high as the rate of gun deaths has dropped nationwide. So of course what we really need are strong uniform federal laws because it's easy for guns to go from state to state. They typically flow from states with weak gun laws into states with strong gun laws. In fact, the shooter in the 101 California Street shooting bought his assault weapon in Nevada because assault weapons were already illegal in California. But until Congress acts and until we get those laws, it's crucial that the states continue to step up. So in closing, I just want to say that although I know it will take time, I'm convinced that eventually we will get the type of laws that we need in this country to address the nightmare of gun violence. As Jan mentioned earlier, there is hope. So even though the statistics are very bleak, we don't have to live this way. We can change our nation's laws. And there are things that you who are here today can do if you're interested in helping that, making that happen. If you're new to this issue, stay involved. Make your voice heard. Contact your elected officials at the federal, state and local level and let them know that this issue matters to you. And ask your friends and family to do the same thing. Speak out. Also, stay informed about pending legislation and speak out so that the NRA isn't the only one that our legislators hear from. Most people support stronger gun laws, but there's this passion gap. Those who are opposed to these laws are extremely passionate. And so they are motivated to speak out, to write letters, to make the phone calls. And so those of us who are on the other side who are in the silent majority need to do the same thing. I would also say support organizations that are dedicated to reducing gun violence like ceasefire of Pennsylvania and the other groups that you're going to hear from today. Change won't happen overnight, but if we all work together, it will happen. Thank you very much. In 1791, the Second Amendment was ratified. Until 2008, the Supreme Court always had said that the Second Amendment is about a right to have firearms solely for the purpose of malicious service. For example, in 1939, in United States v. Miller, the Supreme Court appell the federal law prohibiting shot-off shotguns. The Supreme Court said, just in passing, that of course what the Second Amendment was about was a right to have guns for purpose of malicious service. It didn't have anything to do with right to have guns for one's own personal safety. When I began teaching constitutional law 34 years ago in 1980, I spent very little time on the Second Amendment. There was no dispute to the meaning of the Second Amendment. It was just what it said, a right to have guns for the purpose of malicious service. After all, the Second Amendment says, a well-regulated militia being necessary to a free state through the people to keep in their arms shall not be infringed. There was, though, a very organized campaign involving gun rights activists and academics to convince courts to change the meaning of the Second Amendment. And that occurred in June of 2008 in District of Columbia v. Heller. What I was asked to talk about this afternoon is the meaning and myths concerning the Second Amendment in light of where the law is today. I want to address two questions. First, what has the Supreme Court said about the meaning of the Second Amendment? Second, what are the unresolved issues with regard to the meaning of that amendment? As to the former, there are really two relevant Supreme Court cases at this point in time. District of Columbia v. Heller that I already alluded to from 2008 and McDonald v. City of Chicago from 2010. I want to talk about each of them. District of Columbia v. Heller involved a 35-year-old D.C. ordinance that prohibited private ownership or possession of handguns and imposed significant restrictions on long guns. A challenge was brought by an individual, his private security guard, who wanted to continue to have and possess his firearm. The Supreme Court fived a four-world in his favor and declared the D.C. ordinance unconstitutional. I don't know when in American history views about guns came to be so ideologically defined, with guns rights activists tending to be more conservative, gun control activists tending to be more liberal, but that's exactly how the Supreme Court divided on that June day. Justice Antonin Scalia wrote the opinion for the majority. It was joined by Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito. Justice Stevens and Breyer wrote dissenting opinions, joined by Justice Souter and Ginsburg. Justice Scalia began by saying that there's a prefatory part and an operative part to the Second Amendment. He said, the language that speaks of a well-regulated militia being necessary to a free state is just prefatory language. He said that the operative language of the Second Amendment is where the people that keep and bear arms shall not be infringed. Justice Scalia said prefatory language cannot undermine the meaning of operative language. He did his textual analysis of the words the right to keep in bear arms, as well as what militia meant in 1791, and concluded that it was a right of individuals to have firearms for the purpose of personal safety. He looked at contemporary understandings of the Second Amendment. He looked at writings about the Second Amendment. He looked at historical interpretations of the Second Amendment, and included that the Second Amendment protects right of individuals to have firearms, at least in their homes, for the sake of security. But very importantly, and often overlooked, the Supreme Court emphasized that the Second Amendment is not an absolute right. Justice Scalia said the government can regulate who has guns, such as keeping those with a felony conviction or a history of mental illness from having firearms. He said the government can regulate where guns are located, such as preventing guns in airports or in schools. He said the government can regulate the types of weapons people possess. There'd be no Second Amendment right to have an assault rifle, a bazooka, or other kinds of high-capacity, high-damage weapons. The court ended simply by emphasizing that what it had found was a right to have handguns in the home for the sake of personal security. So he mentioned Justice Stevens wrote a lengthy dissent. He took Justice Scalia on with regard to the historical evidence. Justice Stevens, writing for the four dissenters, rejected the notion that there's a prefatory part and an operative part of the Second Amendment. He said all of the language in the Second Amendment is operative, and the Second Amendment is unique among constitutional rights and that it states its purpose. The Second Amendment says that the purpose is to make sure that there'll be a well-regulated militia. The Second Amendment was meant to keep Congress from regulating guns in a way that would keep states from protecting themselves, but it was not about a right to have personal ownership of guns. Justice Stevens, too, looked at the text of the Second Amendment with the phrase, keeping bare arms meant in 1791. He looked at what militia meant in 1791, and he stressed the importance of precedent. After all, from 1791 until June of 2008, without exception, the Supreme Court had said that the Second Amendment is just about a right to have guns for purpose and militia service. Justice Breyer wrote the other dissenting opinion. He said that the government should be able to regulate guns so long as it is acting reasonably. Justice Breyer said, if we're going to look at historical practice, all of the states, the state constitutional provisions with regard to the right to have guns, allow reasonable regulation. So should reasonable regulation be permitted when it comes to federal laws. Justice Breyer reviewed the epidemiological studies, the kind of evidence you've heard this afternoon, that gun regulations do decrease crime and do decrease gun violence. He said based on this, the D.C. ordinance should be upheld as a reasonable regulation. The law that was involved in District of Columbia for Seller was a federal law. The District of Columbia obviously is a part of the federal government. The Supreme Court had no occasion therefore to consider whether the Second Amendment would also apply to state and local governments. The day after the Supreme Court handed down its decision in District of Columbia versus Seller, the National Rifle Association filed lawsuits in federal court in Chicago and San Francisco challenging those city's gun ordinances. The National Rifle Association and highly publicized press conferences said it wanted to bring to the Supreme Court as soon as it could the issue of whether or not the Second Amendment limits state and local governments as well. For all, never in American history from 1791 through 2008 had the Supreme Court ever found that the Second Amendment limits what state and local governments can do. But in the second case that I mentioned, McDonald versus City of Chicago, in June 2010, the Supreme Court held that the Second Amendment does apply to state and local governments. Here Justice Alito wrote for plurality of four. His opinion was joined by Chief Justice Roberts, Justice Scalia and Justice Kennedy, Justice Thomas concurred in the judgment. Now all five of these justices believe that the Second Amendment applies to state and local governments. They just have a different way of getting there. The four and the plurality would say that the Second Amendment applies to state and local governments through the due process clause of the 14th Amendment. That's the way the other provisions of the Bill of Rights have been applied to state and local governments. Justice Thomas would use the so-called Privileged Immunities Clause of the 14th Amendment, the provision that says no state, canine citizen, the privileged immunities of United States citizenship. There were again four dissenting justices. Justice Stevens, Ginsburg, Breyer, and now Sotomayor all argued that the Second Amendment should not apply to state and local governments. Justice Stevens, knowing that he'd be leaving the court very soon after this decision, wrote a lengthy dissent defending his view that it's a living constitution, not surprisingly, that produced a response from Justice Scalia who defended his view of, I guess what could be called, a dead constitution. But the result of these two cases is that the Supreme Court held that the Second Amendment can be used to challenge federal, state, and local laws that it does protect a right of individuals to have guns in the home for the sake of security. Justice Alito's plurality opinion of McDonald reiterated what the court had said in Heller, that all the court had found was a Second Amendment right of guns in the home for the sake of security and that the government could regulate who had guns, where the guns were located, and what type of weapons people possess. So when you hear people talk about the law of the Second Amendment, I have now described it to you. I've tried to describe it to you as neutrally and as fairly as I can, but that's all the Supreme Court has said to this point. Anything else about what this means, in terms of regulations, what's allowed and what's not, is a matter of argument, a matter of interpretation, a matter of lower court decisions, but not a matter of Supreme Court rulings. So this brings me to the second question that has been asked, what are the unresolved issues? There are literally now, I was going to say dozens and dozens, but hundreds would be more accurate, of lower court opinions ruling on various questions concerning the meaning of the Second Amendment. What is striking is that the Supreme Court has had many occasions in the last four years to review these decisions, and without exception, has denied review in all of these cases. Most recently, just a few weeks ago, the Supreme Court denied review in a Second Amendment case. Sooner or later, the Supreme Court is going to have to resolve all of these unsettled issues with regard to the meaning of the Second Amendment, but it's clear that the Supreme Court is in no hurry to do so. We can speculate as to why not, perhaps the strategic choices on the part of the justices, being uncertain of where the court will come out, perhaps a desire to allow the issues to percolate more in the lower courts. But time and again over the last four years, as cases have come to the Supreme Court, regard to the meaning of the Second Amendment, the justices have denied review. Well I want to focus on three somewhat interrelated unresolved issues with regard to the meaning of the Second Amendment. What level of scrutiny is used in evaluating government regulation of firearms? Does the Second Amendment protect a right to have firearms outside the home? And what types of government regulations are allowed? Let me start with the first of these questions. What level of scrutiny is used in evaluating government regulations of firearms? If you're not a lawyer, this phrase level of scrutiny may not have meaning your context, but it's really the most important question in terms of deciding what kind of laws will be allowed with regard to government regulation of firearms. To understand this, you need to know that not all claims of rights, not all types of discrimination are treated the same under the Constitution. There are times when the court is very deferential to the government, and times when the court is very suspicious of the government. Let me start with equal protection to illustrate this. I have a 15 year old daughter. There is nothing in the world she wants more than her driver's license. Imagine she were to bring a lawsuit saying that the California statute that says you have to be 16 to have a driver's license denies her equal protection of laws. She says she's discriminated against. I assure you, if she could, she would bring that lawsuit in an instant. She would lose. Now the reason is, the Supreme Court would say, when it comes to age discrimination like this, the government should be upheld so long as it's acting reasonably. In fact, the technical language here is that a rational basis test is used. So long as the government action is rationally related to some legitimate government purpose, the government action will be upheld. Now at the opposite end of the continuum, if a state would adopt an abhorrent law saying no African Americans can have driver's licenses, the court would be highly suspicious, undoubtedly declare that unconstitutional, and use what is called strict scrutiny. That is, the government action will be upheld only if it is necessary to achieve a compelling government purpose. Notice that the government's goal, something more than just legitimate for the government to do, it has to be truly vital, compelling. The means have to be necessary. The government has to show there's no less restrictive alternative to achieve its goal. Now in between what I've called the rational basis test and strict scrutiny, the Supreme Court has crafted what is called intermediate scrutiny. So for example, the Supreme Court has said that gender discrimination has to meet intermediate scrutiny. And the test of intermediate scrutiny is that the government action has to be substantially related to an important government purpose. Well the same framework is used with regard to claims of rights. If somebody for example were to claim a right to welfare under a state law or a federal law, since no such right exists, the court would say the distinctions that the government draws is to get welfare and who can't are upheld so long as they're reasonable. If one of my students wants to challenge the restrictions that are imposed and who get a license to practice law, the court will say there's no right to be a lawyer. Restrictions are upheld so long as they're reasonable. But if somebody invokes a fundamental right, like say the right to vote, the right to interstate travel, then strict scrutiny has to be met. The government act to be necessary to achieve a compelling purpose. I go through all of this because it's an unresolved question as to what level of scrutiny will be used in evaluating government regulations of firearms. The more deferential the level of scrutiny, the closer to rational basis review, the more regulations that will be upheld, the more exacting the level of scrutiny, the closer to strict scrutiny, the fewer of the government regulations will be upheld. And the Supreme Court in Heller and McDonald simply does not say the level of scrutiny. There is a footnote in Justice Scalia's majority opinion in Heller, which indicates that more than rational basis review will be used. But that still leaves a great deal of territory. How much deference? How exacting will the review be? The lower courts are split on this. To my knowledge, there's only one court, a federal district court in Utah, that has explicitly said that strict scrutiny should be used for all government regulation of guns. There are a number of federal courts of appeals, the Third Circuit, the Fourth Circuit, the DC Circuit, that have said that intermediate scrutiny should be used for government regulation of guns. Some courts have tried to avoid this by saying some kind of sliding scale or balancing test will be used. The Second Circuit, the Ninth Circuit has said this. Now, where is the levels of scrutiny tend to be used both for equal protection claims and claims of rights? One exception to that is in the area of abortion rights. In 1992, in Planned Parenthood v. Casey, the Supreme Court said that the government can regulate abortions before viability, so long as not placed an undue burden on the right. Some commentators said, well, perhaps that's the test that should be used with regard to guns. Others have argued for some form of reasonableness test, so I think that would be the hardest to reconcile with the footnote in Justice Scalia's opinion. So when I raised the issue of what's the level of scrutiny, I know I'm talking about a relatively seemingly technical question, but it is the issue that will make an enormous difference to how courts evaluate gun control laws and gun regulations of all sort. My own sense of where the court's likely to go is both to reject rational basis review and to reject strict scrutiny. I already mentioned Justice Scalia as a footnote in Heller rejecting rational basis review. I think the language in Heller and McDonald's talking about the ability to regulate who has guns, where they have them, and the type of weapons also would be incompatible with strict scrutiny. So I think something either akin to or exactly like intermediate scrutiny is likely to be what emerges, which ultimately be a balancing test between the government's justification for having regulation and the intrusion on the right of individuals to have guns. Well, that leads to the second unresolved question. Is there a right to have guns outside the home? In presenting Heller and McDonald's to you, I emphasized that the Supreme Court held only that there's a right to have guns in the home for the sake of security. The issue is unresolved by the Supreme Court is whether there's any right of individuals to have guns outside the home. The lower courts are split on this as well. I count at least nine lower court decisions, primarily at the federal district court level, that have held that the second amendment is only a right to have guns in the home for the sake of personal security. But there are a number of courts, including at the federal court of appeals level, that have said that there is a second amendment right to have guns outside the home. I think there are strong arguments on both sides of this dispute. I think with regard to the former, the home is treated differently under the Constitution. The Fourth Amendment, for example, provides special protection of privacy in the home. Also, to the extent that the court is concerned about safety and security, the home is a special place. If the court is going to be originalist, there's an argument that the drafters of the Second Amendment, to the extent they were concerned about security, were focused on the home. On the other hand, the courts that reject this and find a second right to have guns outside the home argue that what the Supreme Court is focused on is a right to have guns for the sake of security. Security interests exist even when people are outside of their home, and thus it should be extended to a right outside the house. Now, in talking about the meaning and myths of the Second Amendment, the meaning at this point is that the Second Amendment is just about a right to have guns in the home. If I was to offer a prediction, though, I think it's likely the court will, at least in some limited fashion, say there's a right to have guns outside the home, though that can be regulated. Well, this then leads me to the third and final question that I want to address. What types of government regulations are allowed? Now, I put this last because obviously the answer to this question is going to turn on the prior, too. What regulations will be allowed will depend on the level of scrutiny. What regulations will be allowed will depend on whether it's right only in the home or outside of the home. There are dozens and dozens of different kinds of gun regulations that exist in the United States. It shouldn't surprise you that there have been lawsuits challenging all of them. And so, as I said, there are hundreds of lower court decisions. What is most striking to me is that the vast, vast majority of the decisions have upheld the regulations. I can probably count on less than the fingers of one hand the number of cases that have struck down government regulations of guns. Again, when we talk about the meaning and myths of the Second Amendment, the myth would be that most gun regulations are unconstitutional. The meaning has been that most gun regulations have been upheld. Let me give you six examples of types of gun regulations and what the lower courts have said about them. I'll cover them relatively briefly because time is short. One type of gun regulation is laws that limit carrying of concealed weapons. The California law is typical in this regard. California has a statute that prohibits the carrying of concealed weapons but allows counties to grant permits to individuals to have concealed weapons where they live or where they work. A county can grant such a permit if three requirements are met. First, the person has to be shown to be good moral character. Second, the person has to have firearms training. And third, there has to be good cause for concealed weapons permit. As I said, such laws are common throughout the United States. Many circuits have upheld exactly this kind of a law. The Second Circuit, for example, has upheld this kind of a statute. However, just a couple of weeks ago, the Ninth Circuit in Peruta vs. County of San Diego declared unconstitutional this California law and specifically the requirement that a person has to have good cause to get a concealed weapons permit. It is quite important understanding this case to know that the two judges in the majority of the two-one decision were quite conservative. Judge Derrimato Scanlon, who wrote the opinion, is one of those conservative judges on the Ninth Circuit in any federal court of appeals and also one of the judges who has been most consistently pro-gun rights. He was joined by Judge Consuelo Callahan, the dissent was by Judge Sidney Thomas. Judge O'Scanlon's majority opinion for the Ninth Circuit said that the Second Amendment does create a right of individuals to have guns outside of the home. He said that California prohibits the open carrying of weapons, therefore to also restrict the carrying of concealed weapons to those with good cause violates the Second Amendment. Judge Thomas wrote a very strong dissenting opinion. He pointed out that in 1897, the Supreme Court had upheld laws that prohibit the carrying of concealed weapons. Also, in Justice Scalia's majority opinion in Heller, he specifically gave laws that restrict carrying of concealed weapons as an example of the type of regulations that would be allowed. Concealed weapons pose particular dangers. Back when the Supreme Court in Terry v. Ohio in 1968 upheld stop and frisk under the Fourth Amendment, Justice Harlan, a concurring decision, gave us a reason, the need to check for concealed weapons because of their greater danger. I am always reluctant to make predictions about what the courts will do. I long ago learned that he who lives by the crystal ball has to learn to eat ground glass, but I will make a prediction here and that is that the Ninth Circuit will grant an en banc review of this decision. That is review by, in the Ninth Circuit it's not the whole court, it's eleven judges of the Ninth Circuit and I believe that in all likelihood the Ninth Circuit will overrule the panel decision, though obviously it will depend on who the eleven judges are. The matter will then, whether through this case or another, go to the Supreme Court. Harder to predict what the Supreme Court will do. My instinct is that the Supreme Court will allow the government to ban carrying of concealed weapons. I can't see the Supreme Court finding a second in my right to have concealed weapons and also the language and justice Scalia's opinion in Heller, remember, said that laws prohibiting concealed weapons are an example of the type of statutes that are permitted. Second, there are regulations of who can have guns. These laws, almost without exception, have been consistently upheld in the lower courts. So as was already mentioned, there's a federal law that prohibits those who have been convicted of domestic violence crimes, including misdemeanor crimes from having guns. These have been consistently upheld in the lower courts. There are laws that prohibit those who have felony convictions from having guns. These have been consistently upheld in the lower courts. There are laws that prevent those who have been involuntarily committed to a mental institution of guns. These have been consistently upheld in the lower courts. I think so long as the regulation of who has guns is reasonable, the lower courts are likely to uphold them. The third type of regulation are background checks and registration. I've already been talked about how there are laws requiring background checks, those significant loopholes in them for private sale of guns and gun shows, and there are also possibility of registration laws. Again, every lower court, to my knowledge, to consider the constitutionality of background checks and registrations have upheld those forms of gun regulation. It's easy to see why they're constitutional under Heller and McDonald. Once the Supreme Court says the government can regulate who has guns, keeping those with a felony conviction or those with a history of melanism and guns, it then makes sense that the government also can do the background checks to make sure that it's not giving a gun permit to those who aren't allowed to have the firearms. A fourth kind of regulation that's been tried, safety regulations. These have already been mentioned. These are laws, like the Florida Statute has mentioned, that require the safekeeping of guns to limit the ability of children to have access to it. These are laws that require that individuals have training in order to have a gun, but they have to go to a firing range to be able to get this kind of training. Overwhelmingly, these laws too have been upheld, the only exception being a Seventh Circuit case, a Zell versus City of Chicago. Chicago had an ordinance that said that a person could have a gun permit only if they had completed firing range training, but Chicago prohibited all firing ranges in the City of Chicago. And under those circumstances, the Seventh Circuit said this was unconstitutional. But here too, I think, so long as it is a reasonable safety regulation, it is likely to be upheld. A fifth type of regulation concerns the types of weapons. There are laws that restrict certain kind of martial arts weapons. There are laws that regulate the high-capacity magazine clips. There are laws, of course, that prohibit assault rifles or semi-assault rifles. Without exception, each and every one of these laws has been upheld by the lower courts, even after Heller and McDonald. And sixth and finally, there are the laws that regulate the location of weapons, prohibiting weapons in particular places. There's a federal law that prohibits having firearms in national parks. The Fourth Circuit is upheld that. There's regulations, federal law that prohibits having weapons on postal service property. Laws have upheld that. And of course, laws prohibit guns in places like airports and schools. Heller makes clear such laws are permissible. So as you leave here today in terms of your understanding of the meaning of the Second Amendment, it's key that you remember that almost all of the regulations that federal, state, local governments have tried have been allowed and are likely to be allowed in the future. So then to conclude by addressing what I was asked to talk about, what's the meaning, what are the myths of the Second Amendment? The meaning of the Second Amendment at this point is that individuals have a right to have guns in their home for the sake of security. The myths regard to the Second Amendment are when people tell you that the government can't regulate who has guns, or the government can't regulate what type of weapons they have, or the government can't regulate where those guns are located. All of those are things that can be regulated even under Heller and McDonald and are likely to be regulated into the future. A young boy finds a gun literally on the streets, picks it up thinking it is a toy and pulls the trigger, killing his friend. Now let me tell you how these tragedies happened. In every one of these incidents, the shooter was prohibited from buying a gun. He could not get a gun legally. He needed an illegal source. And irresponsible gun companies were happy to supply that source, either directly or indirectly, and profit off it. The father in Kansas, for example, was a convicted felon. And when he went to the store to buy the gun to kill a son, he told the gun dealer that he was a felon. So the gun dealer simply turned to the woman he was with, who was his grandmother, sold the gun to her, and he walked out with the murder weapon, an obvious straw purchase. The gang member who shot a high school basketball player in Buffalo got his gun from a gun trafficker. A gun dealer in Ohio supplied that trafficker with over 180 Saturday Night Special handguns, all sold in cash, all sold in bulk sales. In fact, the gun used to shoot the high school student was sold in an 87 handgun purchase. The stalker that killed the woman in Chicago found his illegal gun on the Internet at armslist.com, a virtual gun show online. How can this happen? For one, as Julie explained, our laws allow it to happen. There are no limits on how many guns you can sell. There are no background checks required for private, unlicensed sales, websites and gun shows, exploit this loophole. An ATF, which is charged with regulating gun dealers, is underfunded and reigned in by gun lobby pushed restrictions. And irresponsible gun companies take advantage to make a dollar. Let me read you some testimony from a lawsuit that we brought. You can hear straight from the gun dealer's mouth about how this happens. And this is from a man who worked in a gun store in Texas. He's asked, did you ever have occasion for customers to volunteer information of prior convictions? Answer, yes, sir. Question, what would they be doing this in connection with? Answer, well, the Brady form you fill out is a background check. And even on the yellow form, I've had customers volunteer, quote, well, I had this conviction, or I've been asked, quote, can this stop me from buying a gun? If the answer is yes, we were directed on several occasions, find out if they've got somebody with them, or can get somebody to come do the legal work to buy the gun. Question, and on those occasions when somebody volunteered they had a prior conviction, what was your experience as to what happened then? Answer, if management knew it, that is the gun dealer management, the question was put out, quote, do you have someone that can do it for you? And the high number salesman, it was a practice, like I'll hold this gun, you bring somebody. I specifically was talked to one time, because I did turn down, send a guy out the door, and it was a high dollar semi-automatic pistol, and I said it just, it's not going to happen with me, and I know I was told that, quote, well, you know we're dealing numbers and profit. That's sworn testimony from a clerk at one of the largest gun stores in Texas. Now let me tell you what we in the legal community can do about some of these tragedies to help prevent them. You see, these stories are just some of the lawsuits that we at the Brady Center's legal action project have brought over the past 25 years, and we continue to bring them across the country. We hold gun dealers' manufacturers accountable for their contribution to gun violence, we defend strong, sensible gun laws, and we challenge and defeat over-broad or unconstitutional laws. Some of the laws that Julie referred to as crazy laws, which I agree with her analysis, and in fact we brought suit against some of the ones that she mentioned. We've won precedence in courts across the country holding that negligent gun companies can be accountable for their contribution to gun violence. Now to be clear, most gun dealers are responsible business people, and in fact this is an ATF chart. You will see that over 85% of gun dealers sell zero, zero guns traced or covered in crime in a given year. But as Jan Wernick pointed out, about 1% of gun dealers sell over 57% of the crime guns. These are the bad apple gun dealers. And someone asked, what can we do about it? Well, in our lawsuits against some of these bad apple gun dealers where ATF, to be frank, has not done what it should do to get them out of business. We've brought lawsuits and we have gotten some out of business. In fact, in a lawsuit here in Philadelphia against what was then one of the top suppliers of crime guns, loose loans, after we brought a lawsuit against loose, ATF finally took action and got their license revoked and put them out of business. We also fight to get gun companies to put in safety devices to prevent unintentional shootings. And there was some discussion about how these devices can save lives. And as Julie pointed out, because guns are exempt from the Consumer Product Safety Act, the federal government cannot force gun manufacturers to put in safety devices. But lawsuits can provide powerful financial incentives for them to do what they should be doing all along. Unfortunately, gun companies, manufacturers do not on their own do the right thing and make their guns safer. And again, I'd like you to hear from the industry itself. This is testimony by an expert of Beretta in a lawsuit actually on behalf of the California teenager who you saw earlier who was shot and killed unintentionally by one of his best friends. The expert was asked in this case how he weighed the risks and benefits of safety devices and firearms. And he's asked, and I'll cut to the chase in a lengthy question, quote, how in this weighing process do you consider the loss of life? And this is what he told the jury on behalf of the gun manufacturer, quote, the fact that someone may be killed based on a decision I've made. As a matter of fact, I could say it in a different way that even sounds worse. I know that some people will be killed because of decisions that I have made. For instance, the one we talked about with the magazine Disconnector Safety. Some people in accident cases that I've dealt with have been killed and they wouldn't have been killed if that magazine safety had been in place. But I have to try to think about all the ways that this item is going to be used. Now the magazine Disconnector Safety that he's talking about is a device that prevents a gun from firing when the ammunition magazine is removed from it. And there are many times where people think that the gun is unloaded because the magazine has been removed, but in fact there's a round in the chamber. So the expert goes on to explain what are the great benefits that outweigh the loss of the lives of children. And he says, quote, if you are backpacking off into the wilderness and you're going to maybe rely on that to shoot at some snakes or shoot rabbits to eat or whatever the heck and you lose your magazine or damage it so it doesn't work. If it's got a device in there that prevents you from shooting it with a magazine out you can't use the gun anymore. But you could still, if it was, if it didn't have that device you could still load it one at a time and still shoot it, close, quote. So in the position of Beretta, the gun manufacturer was that the benefit of being able to shoot snakes and rabbits if you needed that to survive outweighed what he admitted was the certain deaths of children that could have been prevented by these safety devices. Again, that's a judgment that's made by many gun manufacturers in America where litigation on behalf of victims can provide financial incentives for them to do the right thing. Additionally, we challenge laws that hinder gun violence prevention and infringing on other rights. As I mentioned, and Julie mentioned what's called the Docks v. Glocks case, that's not the official caption, but that's what we call it, a law which would authorize the revocation of doctors' medical licenses if they simply talk to their patients about the risks of guns, which, by the way, is the recommended protocol from the American Academy of Pediatrics. So if a pediatrician was doing her job, she could get her license revoked. We brought a lawsuit against that law in First Amendment grounds, got an injunction, and as Julie mentioned, it was argued in the 11th Circuit this past summer when we were awaiting a decision. Nelson, Georgia passed an ordinance which required heads of households to have a functional firearm in the home. We brought a lawsuit against that claiming, among other things, it was a violation of the Second Amendment, because we argued that part of the Second Amendment right to protect yourself from the home included the right to keep guns out of the home, and in fact, most Americans choose to protect their families by keeping guns out rather than bringing them in. And we got a settlement in which Nelson agreed to never enforce the ordinance and recognized our position. We also helped defend jurisdictions whose laws have been challenged, usually on Second Amendment grounds. This is some of the pertinent language, but I think Dean Chemerinsky summarized it much better than I could. And I would note that when we are involved in these litigations, and if I assume any of you are lawyers in the crowd here, we don't just file amicus briefs like many organizations. We actually go into court, in some cases represent jurisdictions. We represented, in fact, the city of Pittsburgh when the NRA sued it to try to strike down their laws and stolen gun ordinance. We assisted Philadelphia in defense of their gun ordinances, and we continued to do that around the country. And so if you're interested, and I hope you are in working in this area, I would invite you to go to our website and join LawyersForSafeAmerica.org, which is a national alliance of lawyers and law firms that is growing, which invites lawyers to work with us and work with victims of gun violence, work with cities, counties, states whose laws are challenged, and make a difference. This is extraordinarily exciting, fulfilling work. It has the opportunity to really create new constitutional law in the Second Amendment area, but also in the First Amendment area, and certainly in the tort liability area. And most importantly, it has the opportunity to save lives, such as Nafis Jefferson, this young man. So thank you very much. Under the Heller case, what parts of the legislation considered by Congress after Newtown would have been unconstitutional, if any? I think it all would have been clearly constitutional. I don't think there was anything that was proposed there that would have been unconstitutional. I mean, the core part was, of course, universal background checks, as Governor Randall was just saying, and there's no doubt that background checks are constitutional. I don't know of any court that's invalidated them. I think that's a strong message that lawyers have a responsibility to get out. What is constitutional here and what is not, there was so much bad information put out by the gun lobby about the constitutionality of the legislation considered after Newtown. Lawyers have a responsibility to address that. Excuse me while I read these for the first time. Okay, John, this one's for you. You mentioned defending lost and stolen laws. How many times have these laws been used? Times that they've been used? That's the phrasing of the question. Not certain what it means, but I don't think I have an answer for it. Let me just explain briefly about lost and stolen guns. Basically, what these laws require is simply if you're a gun owner and your gun, you find out that your gun is lost or stolen. You don't know where it is. In a timely fashion, usually something like 48 hours, you have to report that to law enforcement. The reason is, one, if you're telling the truth, there is a gun out there in criminal hands. Criminal because it was a thief who took it. But also because a lot of times you're not telling the truth. What we've seen is that many gun traffickers buy guns in order to supply them to somebody else. Then when the gun is finally recovered and traced on the streets by law enforcement, they come back to you who bought the gun and say, where is it? And you say, must be lost or stolen. If you had a lost and stolen reporting requirement, then you couldn't get away with that sort of alibi. Good. Last question, and I'm sorry that we won't be able to read all of these. This is for anyone on the panel. Do any other countries in the world have a second amendment kind of equivalent law, constitutional provision? No, they do not. I just briefly, England did have the Bill of Rights, which is similar. In fact, the Heller Court recognized that the second amendment came from the British rights, and yet in England, construing that same predecessor of the second amendment, they have allowed for extensive gun regulations, including pretty much banning for all practical purposes. Handguns, so I think that's worth noting and construing what the second amendment is. Great. Please join me again in thanking our panelists.