 From 1791, when 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 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 the 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 free state, there are 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 more liberal, but that's exactly how the Supreme Court divided on that June day. Justice Antonin Scalia wrote the opinion for the majority. He 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 to keep in their 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 bare 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. As I 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, keep and bear 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 versus Heller 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 Heller, the National Rifle Association filed lawsuits in federal court in Chicago and San Francisco challenging those cities' 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. After 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 in 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 Privilege of Immunities Clause of the 14th Amendment, the provision that says no state, canine citizen, the Privilege of 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 to have 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 I was going to ask. 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, guard 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 the 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, specifically 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 call 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, would acclaim 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 can 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 has 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. 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 an immediate 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 Parenthesis Casey, the Supreme Court said that the government can regulate abortions before viability, so long as not place 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 talk 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 the 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 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 just going to turn on the prior two. 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... excuse me. 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 versus 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's quite important understanding this case to know that the two judges in the majority of the two-one decision were quite conservative. Judge Derrimado Scanlon, who wrote the opinion, is one of the most conservative judges on the Ninth Circuit in any federal court of appeals and also one of the judges has been most consistently pro-gun rights. He was joined by Judge Consulate Kellahan. The dissent was by Judge Sidney Thomas. Judge of Scanlon's majority opinion for the Ninth Circuit said 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 at Appell Laws rejected 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 to learn 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 the 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 11 judges are. The matter will then, whether it's 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. Dr. Leah'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 of held in the lower courts. So as was already mentioned, there's a federal law that prohibits those have been convicted of domestic violence crimes, including misdemeanor crimes from having guns. This has been consistently of held in the lower courts. There are laws that prohibit those who have felony convictions from having guns. These have been consistently of held 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 held 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. A third type of regulation is 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 is easy to see why they're constitutional under William 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 that was mentioned that require the safe keeping 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. 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, the 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 Helen McDonald and are likely to be regulated into the future. Thank you.