instant analysis. and we simply are at a point in time now where we have not yet had very many decisions, very many meaningful decisions, certainly not at the - at the court of appeals level and in the federal system coming out of carefully crafted, strategic civil litigation. we have had a great deal of decisions in the lower courts. coming out of the sort of cases that would one expect if the immediate aftermath of a decision like heller or mcdonald, namely, criminal cases, which are always on a faster track, that involve so much more far-fetched claims by people who are desperate to raise constitutional defenses and in whose counsel acquired zealously to act on their behalf. seek out any grounds that they may have to avoid criminal liability. the brady center used to have this page on their website where they had a long list of cases that explained why the second amendment secured only a

collective right. well, most of those cases were of course criminal cases of that ilk and it took some time for well-crafted civil litigation to address that topic. so to those people who would look quickie, quick litigation in the lower court to say ah-ha. i would say, stay tuned. we have many, many cases that are currently winding their way up to the appellate courts. and we will, then, see exactly how far and why the second amendment actually does apply. en weet tis ofhose answers, i will caution advocates of gun rights that we're not going to in every case p it's not realistic to expect that the court will get every single second amendment case correctly. we don't have that situation prevailing currently. in any other area of constitutional law there's nobody out there that believes that every first amendment case decided by the supreme court was correctly decided, or every

single fourth amendment case was correctly decided by the supreme court. so the secd amendmentmaot suenly becoma fonf perfection. nonetheless, i believe that heller and mcdonald and somehe delopmenwe ithe ler sendatth we'se a bust and vorous ghth s lot of actual application to people. the first thing to consider in looking at thefrework of co amendmentnalysis is at notvery csehould b or will be decided as a matter of means' end scrutiny, sort of a standard of review. the strategy of the other side is to look at every single second amendment case is one that necessarily calls upon the courts to engage in any balancing of interests, and then to apply what ey cll reonleegatn ic is otr de eenal f tial basi rview to that, and then of course because the courts will always defer to the

intinations of the glare th'soteayhe fmerk nasuemcot s ftsin heller in mcdonald. heller did not announce literally a standard of review, because it was not required by the case. it's a wonderful object lesson in the facts that you don't always need a standard of review. what did heller involved? heller involved a handgun ban, which is a question about, what classes of arms are protected or are not protected by the second amendment. and devises to attest to that and the so-called functional firearms ban. well that law clearly contradicted a core aspect the second amendment and so there was no need to review any sort of balancing test. it simply was in contradiction to a core aspect of the right. so those a t approheth we're into seen ftu case cas that challenge

regulations, that bans certain weapons, or that mandate that arms have certain features in them are going to be adjudicated not upon a balancing a standard of review test but upon heller's common use test for what's a protected arm. some cases will fall by the wayside, if you simply ban an exercise of the right to arms or some aspect of it. for example, i'm currently litigating a case in which the -- the city of chicago has banned people from using guns at a firing range. they've banned gun training. they've banned going to the range and practicing. where we believe that a core aspect of the second amendment, he e gh a e t oiongth wod whhat g i keo ean d practice. and so that doesn't really require a standard of review necessarily to resolve. that case is on appeal. we look ford that. some jurisdictions ban entirely the carrying of arms in public. now that activity can be regulated but they cannot be

banned entirely. again, that's -- that's a matter that doesn't -- that isn't going to require a balancing test. and to the extent that some of these jurisdictions impose licensing requirements that are applied in arbitrary capricious action. again that's not a balancing interest. that simply calls into play the supreme court's longstanding teachings about prior strength doctrines and since we've had a number of fderal courts already adopt esstiallyfit amdment frameworks for the second mamt. we've seen the third and the fourth circuit do that explicitly. that prior restraint doctrine into the world of the second amendment. so again, standards of review are not going to solve everything. to the extent that some cases will have to be adjudicated on the basis of a means and standard review, the standard of review is not rational basis. however made that clear. we've already the fourth circuit find that it's either

intermediate or upon strict scrutiny. and i expect that other courts will take mcdonald's instructions seriously that this is a fundamental right that fundamental rights are not afforded fundamental basis. they're taken seriously. and the government will have to carry some burden of showing that the laws serve narrowly a substantial or compelling governmental interest. so the future is bright. we have not yet had too many decisions. we're looking forward to the outcomes in a number of these cases. and we'll see how it goes. i would like to briefly mention, if i have time, roger, in my initial comments. two challenges we do face that are quite serious in this ie. th rschlee, w doad ve a number of people out there who have taken upon themselves to litigate these cases in a pro se basis. we have a lot of armchair constitutionalists, people who are bringing cases, perhaps that are not the best conceived or

well considered. and they're meeting with the sort of results that one would expect. this is an area of law upon which many people are deeply impassioned. and when people read on the internet some theory of the second amendment, and they feel excited about this and go plunk down their $300 at the federal courthouse and file a wsuit, sometimes the results are not going to be great fortouched up. when i go into a courthouse, and i'm representing someone who's claiming the right to carry a gun, oftentimes the judge may not be necessarily familiar with gun owners or with firearms. the clerks and the court may not be familiar with this world. and for us to try to show that this is a normal right, that normal people exercise and can be done in a safe and

responsible manner that mission is not helped with -- it's not helped by a lot of the more extreme rhetoric that's out there sometimes that we see some people espouse on the internet and other places. we live in a world where the camera will gravitate towards the most insane and extreme rhetoric that someone might speak. and when some fringe people become the face of gun ownership, and the use of firearms, that is sort of a challenge for the rest of us to try to overcome. so that is something that, of course, weighs on our minds. of course, in america, you have the right to be anti-social and do crazy things. no one would challenge that. but it is one of the head winds that we face as we do tryo taisansurig whhoaleoe fe jo thks [ plse

>>ha yaln. now fosothg mpte y reun nes o ol fo its legal action project. he's the author of "lethal logic, exploding the myths that paralyze american gun policy." for over 20 years, he's been a leading advocate for stronger gun laws, appearg dozens of times on national television and radio, including "60 minutes," the "today" show, "nightline," and so forth. he's also had written and spoken extensively on liability and constitutional issues relating to gun laws, and gun violence. including testifying before several congressional committees. he's a regular contributor to the "huffington post." under his direction, the brady center lawyers have recovered millions of dollars in damages for gun violence victims, as well as winning precedence-setting decisions on

the liability of gun sellers. in 2004, he was named one of the top ten lawyers of the year, by lawyers weekly magazine. his work as a public interest lawyer has been in the new yorker. his law degreeas from '77 from the virginia school of law. prior to joining the brady center in 1989, he was a partner inhe la firm of foley and lardner. plseelme dnn hig apau ] tnkouror. and thank you all for being here. i noticed a generational difference between alan and myself. when he came up he brought a little laptop computer with him. i bring a notebook. what can i say. certainly the tragic shooting in tucson has made this program even more timely. but i think it also demands that we put our constitutional

discussion in a broader context. because our conflict today really can't be confined to constitutional theory. the scope of the second amendment has profound real world consequences. it has life-and-death cons fences. and as i see it, much of the debate aut the second amendment is really a debate about two visions of america. one vision is literally guns in every corner of american society. more guns in more american homes, more guns on the streets, more guns in restaurants, in coffee houses, in front of grocery stores, in educational institutions. maybe even in the cato institute. and i think a lot of the litigation we see out here is an effort to achieve through the courts that vision of america. there is, however, a competing vision, and that is the vision which allows responsible citizens to have guns in the home for self-defense, but allows government to impose

reasonable restrictions to try to prevent those guns from being accessed by dangerous individuals. and the real world consequences of those competing visions were made starkly clear by the tragedy in tucson. the state of arizona has largely inated all law enforcement discretion over who gets a concealed to carry permit. it recently became the third state in the country to require no concealed carry permit. arizona's gun laws were so weak, that if the shooter's community college officials had reported to the tucson police his dangerous behavior, the police under arizona law would have had no power to prevent him from carrying a concealed weapon. and the sidewalk in front of that safeway was not a gun-free zone. indeed, the shooter himself was

a law-abiding citizen. he had passed a background check. he was a legal carrier of a concealed weapon, up until the time he pulled the trigger. on the other hand, if the alternative vision of reasonable restrictions had been in place, there would have at least been a law on the books limiting the capacity of the ammunition magazine that the shooter used. and he would not have been able to fire 32 rounds in 15 seconds without having to pause to reload. only when he had to pause to reload was he subdued. there is no question that the absence of such a law led to greater death and serious injury in that shooting. now, i believe that the supreme court rulings in heller and mcdonald are far more consistent with the reasonable restriction vision of america than with the guns everywhere vision.

first of all, the right announced in heller is quite narrow in scope. it is, according to justice scalia, the right of law-abiding, responsible citizens to have arms in defense of ar a ho. making it irresponsible for citizens to get guns should not run afoul of the second amendment and not have a gun outside the home. and as a matter of fact, federal and state courts so far, in seven states and the district of columbia, have rejected the proposition that heller implies a right to have a gun outside the home. and i think this is an implicit recognition that clearly the government's interest in regulating guns is even greater when they are carried outside the home. there are substantial risks associated with guns in the home, when the gun owner takes those risks out into the community governments' interests

are even stronger. in addition to narrowly defining e right, scalia's opinion went out of its way to make clear that the right is not absolute, and includes extraordinary language, actually discussing gun laws not even at issue in the heller case. justice scalia wrote that nothing in our opinion should be taken to cast doubt on several broad categories of gun laws, including laws placing conditions on the sale of guns, laws completely banning concealed weapons, not just licensing them, banning them, laws regulating the storage of guns in the home to prevent accidents, and several other categories were mentioned and he said those categories were not exclusive. now, in the wake of tucson, we have actually seen support for one reasonable and constitutional restriction come from a very unlikely source. bob levy, the chair of the cato

institute, and kind of the godfather of the heller case, has said that he doesn't think a restriction on high-capacity magazines would violate the second amendment. so when i can agree with bob levy on anything having to do with guns, maybe it's a new day. we estimate that there have been so far about 300 second amendment chleesil sce ll. ansoarelr a mond ve proved to be much more pop guns than assault weapons as weapons against gun laws. a wide variety of laws have been upheld. bans on possession of guns by felons, bans on possessi b dostic vlencemiemno, pso ueresaing orders, bans on machine guns, bans on semiautomatic assault weapons, restrictions on guns on college campuses, the list goes on and on. and in fact, probably the most

far-reaching decision is the decision by a federal judge in the district of columbia to uphold the laws in this community that were enacted after heller, laws that allow law-abiding citizens to have guns so generally speaking, courts have taken those assurances and justice scalia's opinion about the legality of gun laws very, very seriously. and the vast majority of courts have been highlyef rngo giate cion-making o ns eyaveither found that the scalia created categories are basically safe harbors, so that if a law falls within the category, or is analogous to it is upheld, or they have held that those -- that section of the heller opinion is inconsistent with the idea of strict scrutiny and have used a

much more deferential scrutiny test. i think alan's going to talk about standard of review more. the one comment i would make about the standard of review issue is this. it is that there is a tendency to kind of mp rs enen alo he. d thkthlde rested. i think the first amendment has some things to teach us about the second amendment. but i don't think we should be locked into the first amendment categories, simply because, frankly, the second amendment is a very different kind of right. the right to have a gun in the home for self-defense increases the risk of physical injury in a way that no other provision of our bill of rights does. a gun in the home increases the risk of homicide in the home by three-fold. the risk of suicide in the home by five-fold. in addition, it's been shown that communities that have a higher incidence of -- the

highest incidence of gun ownership have far higher homicide rates in communities than states with the lowest rates of gun ownership. so there is a connection here. the more people who exercise this right, the greater the hazard to the individual, the family and the community. and that simply has to be recognized. you simply cannot say that about the first amendment. and what i think that means is, that the second amendment should be regarded as, to some extent, generous. it is like no other right. it is, in my view, the most dangerous right. and i think that it demands its own unique constitutional jurisprudence, that is highly deferential the verery diffict jge th the elted offials hveo make as they sk to form you late policies that will prevent future tucsons and that will reduce the tragic toll of gun violence in this country that now takes 80 of our fellow

citizens' lives every day. thank you very much. [ applause ] >> thank you, dennis. and i want to thank our first two speakers for coming in exactly on time. i say that in light of the fact that we now turn to academics. >> i have 50 minutes, don't i? >> we're going to hear next from professor nelson lund, who is the patrick henry professor of constitutional law in the second amendment. at george mason university law school. he's written widely in the field of constitutional law, including articles on constitutional interpretation, separation of powers, the second amendment, the commerce clause, thepeech or debate clause, equal protection clause, uniformity clause. in addition, he's published articles in the fields of employment discrimination and civil rights, the legal regulation of medical ethics, the application of economic

analysis, to legal institutions and legal ethics. professor lund left the faculty of the university of chicago to attend its law school, where he served as executive director of -- executive editor of the university of chicago law review. and charter chairman -- chapter chairman of the federalist society on public policy. after law school he held positions in the united states department of justice, in the office of solicitor general, office of legal counsel. he also served as a law clerk to the honorable patrick higenbotham, the court of appeals for the fifth circuit and sandra day o'connor. following his clerkship with justice o'connor, he served in the white house as associate counsel to the president from 1989 to 1992. please welcome professor nelson lund. [ applause ] >> thank you very much, roger. it's an honor to be here. my talk is going to be a little

after the heller decision was announced, there was a lot of celebrating by gun rights advocates, and by proponents of the interpre tiff theory of reism. th was understanble. heller was the fit snificant victorfor gun ritsnhe history the supreme court. and the majority opinion is filled to the brim with the rhetoric of originalism and detail to historical senses. i just wish it were all true. but i'm afraid this reminds me of a little bit of the celebrations of the court's commerce clause decisions in lopez and morrison.rpretive theory. there was no supreme court precedence, certainly none that could be considered dispositive. this was also a good test case for originalism, because the send amendment poses some genuine puzzles.

its text uniquely explains a command. what it says is a well regulated militia, necessary to the security of a ee state, the bear as shall n be keep and infringed. what is the importance of a well regulated militia have to do with the right of the people to keep and bear arms. one usually thinks of constitutional rights as obacles to regulation. not spurs to regulations. and it's not immediately evident, at least the typical 21st century readers, how this right of the people would contribute to the establishment or preservation of a well-regulated militia. a different kind of puzzle arises from changes in the world since 1791. the militia organizations ex tolled by the founding generation have withered away and advances in the technology of weaponry have produced arms that are far more dangerous than anything that was available in the founding era.

and how do these developments affect thepplicability of the nd amendment to modern society. heller was a good test case for originalism for yet another reason. the opinion was assigned to the court's most prominent expont he rirunce, jti al. an taar body of scholarly literature written over the past 30 years, scalia successfully made a powerful case for two important propositions. first, the right to keep and bear arms is an individual private right, not a right of the state's organized militias. second, the purpose of the right is to enable individuals to exercise their inherent or natural right of self-defense, including the right to defend themselves against criminal violence. but that's not enough to resolve the initial about the relationship between the pref a tory language of the second amendment and its operative clause.

scalia tries to do this, as any originalist must, but his analysis is full of fallacies and absurdities. he provides no tenable explanation of the meaning of the reference of a well regulated militia in the constitutional text or provides any evidence of any kind about the proper scope of the right of people to keep and bear arms. the most difficult text question which scalia never even addresses is how codifying the right to arms could have been expected to preserve, promote or prevent the elimination of a well regulated militia. i believe there's a perfectly good answer to that question. but no answer of any kind will be found in scalia's opinion. and that is a very, very serious shortcoming, in a judicial opinion that purports to rely as heavily as scalia's does on tex actual analysis and originalist interpretive principles. scalia's failure to identify any

textual of the second amendment right has spectacular effects when he addresses the heller case itself. namely, whether the d.c. handgun ban was unconstitutional. the court concluded that it was unconstitution al, but the only reason scalia offers are that handgunsre popular weans for lfefseamg aerican da and thathehinkhe are od reasons handguns are popular. that is not a historical or originalist argument. if it's any kind of argument at all, it's probably a disguise in incomplete form of the qua si legislative living constitution interest balancing approach that scalia disdainfully dismisses elsewhere in his opinion. it's very striking that scalia abandons any realism when he addresses the question actually presented in the case. what's even more striking is that he also includes a series of astounding and unnecessary

comments endorsing various forms of gun control that were not at issue in the case. scalia does not provide a shred of legitimate historical evidence to support any of these conclusions, to the extent that he gives any reasons at all, they're based on blatant mischaracterizations of the historical evidence on plainly inapplicable decisions of state courts and in one case on interpreting a prior supreme court decision to mean the opposite of what it says. in a narrow sense, the constitutionalist is vindicated in heller because the court reached an easily defensible originalist result. but the court's reasoning is a critical point so defective and transparently nonoriginalist in some respects, that i think hell now, heller applies the federal laws like the one in the district of columbia. in mcdonald the court's decision

held the same principles applied to state and local governments. mcdonald presented the court with a more difficult question than it faced in heller. it could follow its due process in corporation precedence, which have absolutely no basis in the text or history of the constitution, or it could go back to first principles and amine its very dubious decisions under the privileges or immunities clause. but that's a slightly larger framework. the 14th amendment, which if anything applies to the second amendment to the state that has to be the 14th amendment. it includes two different clauses. and applying other provisions of the bill of rights, to the state that the court has relied on the due process clause, which there's no basis anywhere in the text or history of the 14th amendment and has ignored the privileges or immunities clause in that context. at the oral argument it was pretty clear where the justices were headed. the challengers of the chicago law was represented by alan gura.

and he started out by arguing that chicago's law violates the original meaning of the privileges or immunities clause. and who do you think interrupted him to ridicule him for making this argument. none oerhan mr.riginal meetg msf, aho scia. here's what he said. why are you asking us to overrule 150, 140 years of prior law when you can reach your result under substantive due procs? i kn unless y'r bucking fo someacin a lawchoo cuy. th nastiest ing yocasay to a lawyer. as if that weren't enough, scalia soon followed up with this mocking comment. well, i mean, what you argue is the darling of the prove esor yat for sure. but it's contrary to 140 years of our jurisprudence. why do you want to undertake that burden instead of just arguing substantive due process, which as much as i think it's wrong, even i have acquiesced in it.

so justice scalia's position seems to be something like this. ignoring the original meaning of the constitution is an outrage, except when i've acquiesced in it. and when i've acquiesced in it, it's time for everybody to stop wasting our time in talking about originalism. great. in the end, four justices applied the court's due process precedence and in a perfectly straightforward and respectable way. oddly, however, the opinion for the four justices also makes a series of arguments designed to show that the court's decision thosarmes e lgus, aninome ces just shkinglyog. justice conlis tried to apply the immunities clause and he got .s opinion is it's

entirely gratuitous reaffirmation of heller's irresponsible endorsement of various forms of gun control th were not at issue in either case. sohat can we expect in the future. my own guess is that we'll see a great many poorly reasoned, lower court decisions, largely upholding various kinds of gun control regulations. and we'll see an occasional intelligent effort to apply a sound legal analysis imposed by heller and mcdonald. there will probably be some victories for second amendment rights in the lower courts, and maybe we'll see some eventually in the supreme court as well. what i do not expect, however, are any victories for the originalist approach to constitutional interpretation. at least in the supreme court. if the jurisprudence of the second amendment goes in the direction that i hope it will go, it will have to be because at least five justices recognize

the social value of the free citizen's right to keep and bear arms. if they get to liking this right, as much as they like the right of free speech, the second amendment will be in pretty good shape. but i don't think there are an awful lot of encouraging signs in the heller and mcdonald opinions. thank you. [ applause ] >> thank you, alan. i think. nelson, i mean. we're now going to hear from alan mrinto wap tingsup inurfirstround. alan i t arr family associe deanor public interest and public service law and professorial lecturer in law at the george washington university law school. he received his undergraduate degree from yale college and law degree from harvard law school. he served as a commissioned officer in the u.s. navy, his

early legal career includes working as an attorney, and as an assistant u.s. attorney in the southern district of new york. in 2004, alan retired from public citizen to work at stanford law school as a senior lecturer on administrative and public interest law. he's taught at several law schools including harvard, american university, new york university, tu lane university, and china's fudan university. alan teamed up with ralph nader in 1972 to found and direct the public citizen litigation group, the litigation arm of the consumer advocacy group public citizen. over the span of his career, he has argued 20 cases before the united states supreme court. please welcome alan morrison. [ applause ] >> thank you. a couple of preliminary matters. first, i first came to a program at the cato institute in

somewhat less august surroundings than this. as i recall, the institute was in the basement of a small townhouse on 2nd street southeast. and i was there because i, like the people at the cato institute, believed that many of the restrictions then and still today as to the unauthorized practice of law harmed consumers by creating artificial barriers to the delivery of low-cost services to people who could not afford to have lawyers. i was proud to be there then, and i'm pleased and proud to be here today. the second point that needs to be made is, you wondered why am i here. besides the fact that i was invited. i'm here because, for a brief period of time after i left stanford, i worked at the toeyenal oicfo th stctf cuma,nd i s heduleto arguehe heeras i in fact had been significantly involved in writing the brief in the heller case,

opinion as to the respective roles of the mayors, counsels and attorney general, and she sensibly resigned and i got fired as a result of it. the day the brief was about to be filed. so i didn't get to argue the case at all. i know who my friends are. they say to me, alan, if you had only argued that case you would have won. and i said, dream on. there was no chance. justice scalia it made up his mind. all right. now, one thing i did when i was drafting the brief, and this brief was largely the work of others who came before me on the case and who worked with me in drafting the brief. the one word i would not allow, and i've won this battle, to appear anyplace in our brief was the word clear. as in the second amendment history clearly says this, the text clearly says that. i said, it would be a de riggs of all of the trees that had fallen as a result of second amendment scholarship for anybody to think that the answer

was clear. and yet, justice scalia thought the answer was clear. but then again so did justice stevens. and they both said it was clear. if there's one thing that's clear about it, is it's not clear. all right. now, there is one argument that we made that on the basic second amendment doesn't apply to the militia, as opposed to does it apply to individual right to bear arms. and i don't intend to rehearse, or relitigate that issue here today. but there was an argument we made which i don't think we made as fully as i would have wanted to have made it. and that is, people would say, well, it's in the bill of rights. eror ustbei l e stfhear of th bi orits d erisn sw to that. why was it in the bill of rights, and the answer is, because, and i think this is pretty clear, that madison, who was in charge of the bill of rights, said one thing, we are not going to touch the body of

the constitution. we are not going to do it because that would reopen all of the compromises that have come before it. and so while i am agreed to allow additions to the constitution, nobody's going to go back and touch it. and that's the reason that the second amendment was not put back into article 1, sections 15 and 16, which do talk about militias. and so there is a good solid explanation for that. as to why it's not treated like the bill of rights. now, am i talking about that just to make an argument here today, that the decision was wrong? no. because i think that fact has continuing validity as we go forward. and as the argument that is made, well, this is like the first amendment. and it's not like the first amendment, because for the historic reason i gave you, and second, to repeat a phrase that my mother told me many times when i was a boy growing up,

sticks and stones can break your bones, but names will never hurt you. ala, first amendment is not equal to the second amendment. guns can hurt people. first amendment wordsay annoy you, antagonize you, but they cannot hurt you in the same way that guns can hurt you. all right. i disagree with justice scalia's determination, but it is certainly not an unreasonable determination that the second amendment ali t great toomhingelsether tn e militi myigstbctnto h opiois wha flod tear iheenas or hdealt with the issue before the court. now, would it such that alan gura said earlier today, that the only decision that was made there was that you had a right to an operative gun in your home. one of the problems with the district of columbia's law, and this really didn't get played out until we got to the supreme court, was that not simply did it forbid you from having a

handgun in your home, which would have been one thing, but they had this strange terloc no-loa aw, a body, mean nody, in the strict, i the police, had ever focused on what it was supposed to mean and how it was supposed to operate cas,th d n stogu, bit aso apieto al fms ar. ang atoucodn he a ad rlein yr om ll, we cncedhat rifles were protected, that that was an alternative to handguns. and therefore, it was appropriate means of defense as opposed to handguns which were not in our view an appropriate means of self-defense. it had all the negative things that rifles and shotguns did not have. by the way, this view about rifles and shotguns being adequate was not my idea or that of anybody in the district. we found this idea in a debate in a magazine that i normally do not read called "guns and ammo"

in which the fight was about whether a shotgun or a rifle was the better means of defending yourself at home. we thought any evely, it appears, that just because the gun people thought that was the apprriba,ha fiti, havin aanunas ok, a was certainly within the realm of legislative reasonableness. we were obviously wrong about that. t the--so i narwl dene that i if a court wanted to reach the nar ohhest possible grounds for deciding this indication, it could have said the right to an operative weapon in the home, including a handgun, is all -- is what's protected by the first amendment. they could have done that. there would have been no dicta. there would have been none of these examples in there. now, why didn't the court do that. why didn't the court follow what it always says as we decide the case before us. we can ask all the lawyers all the nasty hypotheticals in oral

arguments. we decide this case, and this case only. and we can think about the next case but we don't have to decide it. well, what did justice scalia do. he put in a series of examples of laws that are presumptively constitutional. why do you suppose he did that. does he violate his premise that we do not normally put lots of dicta in there? i don't think so. thk d ior oer g as th's hhe gi votes. because some of the members of the court would have been decidedly uneasy with not yi anytnglsbout i t as ticrs i t seth i do congratulate the victors in the case, were able to say, well, see, we haven't wreaked complete havoc on the universe yet. all these laws are protected. all right. so this dicta is terribly serious as a problem for the reason i'm about to come to, which is, how does he decide that these laws are okay.

he doesn't tell us. he just simply announces his conclusion. and so usually what we do is we can tell whether a law is okay because we have a standard of review. how strictly are we going to construe the constitutional right in this particular case. indeed, this standard of review which sounds like some lawyer's language is one of the rules that the federal courts of appeal require in every brief. you have to state the standard of review applicable to the decision below that you are seeking review of before the court can decide the merits of the case. what does justice scalia say about it? he said it doesn't matter. well, it may not matter with respect to the right actually at issue with this case. but it surely matters if you're going to define the rest of the rights. so for example, suppose we have strict scrutiny applied. many people, probably here in this room, some on the podium,

would support strict scrutiny. well, if we have strict scrutiny, just take the laws about felons. unable to have firearms. martha stewart is a convicted felo so is scooter libby. so is, of course, al capone. all of them were convicted of white-collar crimes, nothing involving violence. if strict scrutiny is applied, why is that law not overbroad. i don't have an answer. mi sebisn't include the dicta. nvteofesc vle by teanithon with a firearm, and they plead to a misdemeanor, why should the label misdemeanor as opposed to the label felon automatically take it from one side of the equation to the other. and i suggest to you that unless we get the standard of review right, or even get a standard of review, we cannot responsibly answer the questions that are going to come up in the laws

that are being litigated now. just two final words, and then i will sit down. one is, i sympathize with the problem that alan is facing, trying to control all these out-of-control people who are armchair constitutionalists. it was a wonderful thing, perhaps not such a wonderful thing when brown versus board of educatiowaecedth t s nobo oeraa o ertrngoo f cases to litigate. so you didn't have to worry about all these spurious legal theories because there were no lawyers willing to take on these cases let alone any funding fo them at all, and the pro ses of course were not around at that time. inhe way that they are now. and the second is, he has lost control over the litigation for another reason, and that is, as he pointed out, defense counsel in criminal cases have a legal obligation to raise the second amendment every time it possibly comes up. and of course, proponents of the second amendment, that is

exactly the wrong context in which they want the second amendment issue litigated. so as a legal strategist, he and i are in the same category for that, i applaud his decision to go after the restriction on testing of firearms, and i don't know anything else about the law. if you have a firearm, you ought to be able to learn to use it safely. but he's going to lose the strategic battles along the wa but it have been interesting to see what happens. and once, andif we get the standard of review straightened out, we'll have a better idea of which laws will stand and which laws will fall. thank you very much. [ applause ] >>ha y, aln. ay now wee in avur co rnd bef second round. i would ask each of our panelists to keep his remarks very brief indeed. let's start in the order, go in the order in which we spoke. alan, would you like -- from the -- right from your seat

there. >> sure. well, very briefly, to respond to some of the things dennis had said. we do see a lot hiyof arme fm deni gup a otrshathdesion in heller must be limited to its facts. well, that's not exactly how our system works. the court's decision in marbury versus madison was not limited to the delivery of judicial commissions. it had a broader principle behind it. in the heller case and mcdonald there was an announcement by the court that the second amendment secures a fundamental right and this right is to be defined with reference to the way in which it was understood by the people who framed it. there is absolutely no argument that i have seen or heard from yohmics 17or 18 ueroothsend enentoxtd fther an the home. i haven't even seen the alleged evidence for this proposition. it's true that heller and mcdonald didn't have those applications. but it's fairly clear that

heller and mcdonald decided that they'd like to keep and bear arms, was actually a right to keep and carry arms, as the heller case repeatedly says. this is something that was foisted upon the supreme court in heller. the district of columbia insisted that bear arms had this exclusive military meaning, meaning to soldier to go ahead and participate in some kind of state-sanctioned military activity. the supreme court rejected that. and it gave a very different definition for that same word. they said, no, bear, simply meant to carry. and certain other courts, lower courts have found that language usef, and in some cases. so i don't see the right is going to be cabined to the home y re than the fact tha he hellernd mcdonald said shotguns are not protected. so again, we don't read these decisions as being limited to their facts.

we read them as standing for broader constitutional principles. and we're going to see a meaningful right evolve from that. >> thank you, alan. deis >>wl,ue my point on the question of guns outside the home is that there really is nothing in heller to suggest that the right extends beyond the home. and the formulation of the right in heller clearly is confined to the home. it is the right to keep and carry guns within the home. and for those who may argue that, to say bear means carry, therefore, decides the issue of whether there is a right outside the home, i would just remind them that when the heller court granted relief to mr. heller, towards the end of scalia's opinion, it said the district of columbia must allow mr. heller

to register his gun, and then issue him a license to carry it within his home. so the heller decision itself contemplates the possibility that the right to keep and bear arms is a right to have and carry a gun within the home. i think it is, in terms of original intent, i think it is very telling that actually the onlyategory psumptily lel lawhich the urt heller actually commented was established by the historical record, was the ban on concealed carry. that was the one that the court said went all the way back to the founders. and to me, that strongly suggests that there is a basis to confine the heller right to the home. thank you. >> thank you, dennis. nelson? >> okay. i just want to make a couple of short points. one, in response to dennis'

remark a moment ago about scalia having said that bans on concealed carry go all the way back to the founders. it's true he tried to suggest that. he didn't quite say it. he included a long string site in his opinion to add to that impression that he was saying that, if you go actually read the case, it doesn't establish any such thing. the other short point i want to make is in response to alan morrison's comments about the standard of review. for those of you who aren't lawyers and aren't familiar with this, the standard of review is basically a formula that courts use to express how much deference is given to legislatures when reviewing the constitutionality of various challenged laws. and they've developed a whole kind of hierarchy of standards of review.

the lowest one -- the highest one is strict scrutiny. the lowest one, the one that gives the most deference to legislation is rational basis. then they have rational basis with bite, and one with two and a half bites. that's a joke. and intermediate scrutiny and all of this stuff. members of the supreme court on both sides of the ideological divide have said for a long time that the formulas don't really tell you how cases are decided. they're used to justify decisions made on other grounds. there's a lot of evidence to support that. my favorite is the groeder decision involving affirmative action at the university of michigan law school, where they purported to apply strict scrutiny, the one that gives least deference to the legislature. when you read the analysis, it is indistinguishable from the least deference to legislature.

the fact that the supreme court didn't articulate a standarof review or choose among the plethora of possibilities in their jurisprudence doesn't seem to me particularly significant. because if they had, it probably wouldn't have told us all that much anyway. >> thank you. alan? >> two quick points. one, alan may be sure that shotguns will be upheld, but he's got to explain to me why sawed-off shotguns are not upheld in terms of originalism. because that's what the court in 1937. the second, the question on standard review sounds lawyerly. and it is. but what's underlying at stake here is the question of how much deference should be given to legislatures when they are trying to make predictive judgments whether society as a whole would be better off with one law or another, or one variation rather than another.

and in general, well giatesto mehein cic, ene tin at the legislative process is likely to work reasonably well, that the affected interests are likely to be heard, and that for better or worse, the decision is one that's within the realm of reasonableness for most people. and it doesn't mean that the legislative choice has to be the same in arizona, or texas, as it is in the district of columbia or new york city. it seems to me that guns, and the regulation of them, are quintessentially legislative matters. as roger said at the beginning, t remain there has been part of within some very wide range of reasonableness for legislatures to do what they think is best. and that the court should grant deference, because there's no reason to think that gun

enthusiasts and others who are supporting broad gun rights are not adequately represented and do not have adequate access to the legislators who are making the decisions in this case. there is no chance of a breakdown in democracy, in other words, and for that reason, no need for the court to aggressively step in, and protect those who lose in the legislative arena. >> now we're going to open up the discussion to those of you in the audience. please raise your hand. identify yourself and any affiliation that you m hae. and alsoidti tpeer whomou questns reed. let's start with this gentleman right here in front, who has his hand up. >> i'm a police lieutenant om new jersey. i have a very keen -- >> your name? >> steven rogers. i'm curious about something. the -- both sides of the argument, very good. however, mr. gura, you talked about the fringes seem to be

getting all the publicity, and there's a problem with that. but mr. henigan, you said something that i think resonates with the american people. and it's something important that i think has to bexpound upon byhe wayi aecond enenbeliev. ay? i lie in t rht to bear arms. but mr. henigan, you used a word that i think needs to be used quite often, and that is responsible gun ownership. so i have a question for you, and then a question for you, mr. gura. am i to leave here today believing that yourd f rentts andppos, e forf e co amendment, however, as long as it is a responsible second amendment, as long as we have responsibility gun ownership, and then mr. gura, if that is the case, then why isn't our side, all right, in fact i came in here saying should i identify them as the right and the left, but then why can't we jump onboard and say, look, it's okay. we're fighting for second

amendment rights. however, they're saying the same thing we're saying, but the word responsible needs to be injected in the argument. so what do i leave here today really concluding? thanks. >> that's an excellent, excellent question. and it's a question that i actually do address at length in my book "lethal logic." because i've been at this for over 20 years. and a key strategy of the gun lobby is to make the debate about banning guns. that is the way they make the debate most polarizing. it's the way they raise a lot of money. and part of that strategy is to argue that those of us, like the brady organization, who do not advocate the handgun ban, but do advocate reasonable controls, are really being disingenuous. this debate, the nra will tell

you, isn't about waiting periods, and it's not about limiti ammitn mazine cacity. espeopleeay nto ban yo ns. they reay w t come after your guns. now, that's not to say that there are not americans who believe that guns should be banned, or handguns should be banned. there are. the polls show that. it's a distinct minority view. but it is not our view. and the slippery slope argument gets us into trouble. because every time someone comes forward and says, well, can't we at least require background checks for all gun sales. we've got them for sales by licensed dealers. they're working. they could work better. but the brady bill has stopped about 1.9 million prohibited gun buyers. most of them felons, from buying guns over the counter. let's take that success story and extend it to all private transactions at gun shows, and even elsewhere. it seems like a reasonable proposal. but the response is, oh, that's

just a step down the slippery slope. well, it was my hope, frankly, that after heller, and as a constitutional matter, i think heller was wrongly decided. but nevertheless, i said heller is a paradox. because even though it was wrongly decided from a legal standpoint, i was hopeful that it would, by taking gun banning sort of off the policy table, which is -- that was scalia's term, certain measures are off the table now, banning guns is off the table, we would somehow diminish the power of the slippery slope argument to adversely affect the nature of the debate. most americans, and most gun owners, are in favor of these reasonable controls. recent polls show over 80% of gun owners want background checks for all gun sales. so do we. we ought to be able to come together on this kind of thing. >> alan? >> well, nobody goes out and supports the idea that we should

have unreasonable laws, and that people should be allowed to be irresponsible. obviously the debate is about what is unreasonable and what is irresponsible. and our side of the debate believes that you do in fact have a meaningful constitutional right to have and use firearms. which means that the burden is on the government to show, or on your own, we can't protect public safety even to the degree that we normally do, even though, of course, they're not required to do so. that is the time when people should most have access to the means of self-defense. they think it's okay to disarm people when society breaks down. so, of course, we disagree on those things. but speaking personally for myself, i would not take a second amendment case that tries to vindicate something that i believe is constitutionally within the government's power, or otherwise irresponsible. so i'm not going to take cases that claim that it's perfectly fine for mentally disturbed

violent felons to have guns. you're not going to see me for a right to have the vending machines at junior high schools selling ammunition. we don't do that kind of thing. but at the same time, i would posit that our view of what is reasonable is much more consistent with the traditional american understanding of the responsible use of firearms than the prohibitionist, minimalist view that dennis would espouse. >> next question? yes? >> i don't know what reasonable and responsible laws are. my view is that that's why we have legislatures, and they ought to decide those rather than have courts decide what's reasonable and responsible. at least in most cases. >> so in other words -- >> substantial legislative -- >> you left the door open. >> yes, of course. we have a right. there's no question about that. and if the district of columbia passed a law, the purpose was to

send something through the back door that was prohibited through the front door, they shouldn't be allowed to do that. but i'm perfectly willing to give the legislature the opportunity here, dennis and alan, argue what the particulars of a particular law, and decide theway we didedt, by havinghe leglars votn it andavgth mayor or governor decide whether to sign it. >> david ritgers in the back, standing up. >> dave ritgers, cato institute. my question is for mr. henigan and mr. gura. first, to clarify a couple of points, mr. henigan, your characterization is a little off. in fact, the phoenix shooter was not law-abiding until he pulled the trigger. he lied to purchase the gun. i'm not sure why you place such focus on having a gun-free zone sign the i he would disregard

the laws against murder. moving on to discretionary permitting, which you recommend, it essentially means either that all permits are denied, the situation we've seen in the willlard case in maryland is litigating, or the discretion that are objectionable. in los angeles county, or new york, these are essentially sold for campaign contributions. or used in a discretionary manner, such as the one that martin luther king mng applied for. after a bombing of his house in 1956, he applied for a permit and it was designed for, i think, what are pretty plain reasons given the atmosphere in alabama, under their discretionary permitting system. so if it's from having no right, or is it a right that can be refused in an arbitrary manner, how is that constitutional or defensible? >> i guess my answer is supposed to be briefer than the question. but that's a little bit of a challenge. the point i was trying to make

about loughner is that the nra's program is to eliminate law enforcement discretion over who gets a permit. so th if you pass a background check, and he did, when you say he lied on the form, it's not at all clear to me that he fell into one of the prohibited categories. the point is, the nra says if he passes a background check, and he's a legal gun owner, they don't even want to impose an additional permitting requirement. that means he was a legal carrier under arizona law until he pulled the trigger. and that is the nra's vision of what's supposed to happen across the country. if you can pass a background check, then you can rr a coea anitsolywhhs foy. and this horrendous event shows the folly of it. the folly of it has been shown before.

this just dramatizes the folly of it. and certainly, the question of an arbitrary and capricious use of government power to deny a concealed weapons permit, there may be a remedy of law for that. i'm not arguing that government should be free of civil remedies when it acts arbitrarily and capriciously. i am arguing, however, that it is folly to take all the discretion away from law enforcement, if a law enforcement has discretion, if they look into somebody's background, you know, and they interview people whonoth plan a th mhtav teiewed e mmit lle op a learned all these facts about this guy, they would have been in a position to make him not a legal concealed carry holder. and that would have been -- that's just a much better legal system to treat this issue. >> dennis, may i ask you very quickly, has the brady center taken a position on

presumptions? in other words, is the presumption that you have a right, and then the burden is upon the government to show why you should not in this case exercise it? or is it the other way around that you don't have a right, and the burden is upon the applicant to show why he should get the permit? >> i don't know that we've taken a position on that. i mean, that is something that we would leave, i think, to state law. but the requirement that government act without being arbitrary or capricious is a fundamental principle of law that would apply to concealed carry permits. i would add on the issue of presumptions, scalia's use of the trum presumptively legal when discussing broad categories of gun laws raises an interesting question about burden of proof. normally, you know, it's -- you know, the presumption is with the individual and against the government.

but here, that use of that language raises interesting questions about whether the supreme court views it differently when it comes to the right to keep and bear arms. >> alan, did you want to say something? >> first of all, as far as scalia's presumptive language, the reference is to carrying of arms in sensitive places. we don't know what sensitive places are. i suppose we all may have views about how the court can explore that. the suggestion that you can be banned from carrying arms in sensitive places is the exception that proves the rule that you must be allowed to carry them in non-sensitive places. the supreme court has also approved the right to keep and bear arms outside the home activities as hunting, practicing at a range, i don't know too many people who go hunting with firearms inside their homes. against smaller creatures. and of course, in dennis' favorite case, u.s. versus miller, it concerned the

application of a sawedoff shotgun, because mr. miller was driving it on the highways in arkansas, it was not inside his home. the reason the supreme court told the district of columbia that they had to issue heller a license to carry his gun in the home is because that's the only kind of license for which he applied. d.c. law had essentially two different licensing requirements there was a license to carry publicly, and if you carried publicly, without the benefit of a license, that was a felony conviction. if you carried inside your own home without the benefit of a license, that was a misdemeanor. we challenged that law, and because we challenged the carrying in the home law, that's the way the language of that came out. and of course, washington immediately repealed the carrying in the he licensing requirement. now, as far as the question raised by the questioner, the supreme court has a long tradition of requiring that in

prior restraint cases, the licensing of the exercise of a fundamental right not be left to the unfettered discretion of a licensing official. we need clear standards, objective standards that are narrowly defed, that tell censinofficials wn they shl and sal tse rms. do ve aproblewi subjti t rhto carry firearms to an appropriate licensing standard. and in most states, in fact, do have perfectly constitutional laws about that. however, when it's simply a matter of whether the officials believe you have good cause, to exercise your constitutional g,t bauhat's clearly tu y government doesn't think you have a good enough reason to exercise your constitutional right. that is a classic f chapter and verse, case upon

case upon case where the supreme court has thrown out any kinds of licensing standards that rest upon these vague notions of what's in the public benefit, or when you actually need to exercise your right and all that kind of inappropriate language. >> this gentleman right here. just wait until the microphone is he >>icrdse,riteize omilr ri. what hasn't been discussed at all, and it's sort of indicated byhas gng oexo now, tt ybe it's the gun industry that needs some guti. d e rsamdmt-- i me,the sonmeme est al cen there. we just say you can't make aka-47s except under very limited circumstances, and you can't develop -- i don't even know what they're called -- the

bullets without letting your finger off the trigger. and that that's the answer to it, then it has nothing to do with the secd amendment. you just regulate the industry. >> well, since we're here to discuss the second amendment, does anybody have a brief comment on that? >> yes, i think that's a very important topic that the questioner has brought up. there is a great deal tat needs to be done to regulate the gun industry. and, you know, so many of the policy ideas that need to be discussed really do not have anything to do with the second amendment. you know, there's no second amendmenri sel gunto stwbursrucartels. s no second amendment right to a very weak bureau of alcohol, tobacco and firearms. we need to give the agencies greater power to crack down on corrupt dealers.

we need to limit the number of handguns that can be sold at any one time to reduced gun traffic. we need to ban assault weapons, and high-capacity magazines. there are so many of these kinds of sensible policies that would save countless lives. and there simply is no argument that they violate the second amendment or set us on a slippery slope toward gun confiscation. >> the gentleman with his hand up in the front row, of the back. >> thank you. my name is george lawrence. i'm a semi-retiredpchogist. i'anvi hte and se-pteionist. one quick comment and one i think pretty quick question. it seems to me that it's absurd to talk about bearing arms within the home. as if you're going to walk around, marching around carrying a home. for better or worse, i think

it's pretty obvious that's what it means, to carry a gun arnold. the question i have is having notid and appalled at it, spokes people for n ornizatis seing the necessitforhe ive ownershiofsult rles with high-capacity magazis, justified by omas jefferson's regrettable comment as a way to prevent encoaching government, makes me wonder whether there's any substantial body of legal opinion that supports a constitutional right to prepare for armed insurrection. >> nelson, you may be an expert on that issue. >> well, i don't know about informed legal opinion, but in justice scalia's opinion in heller, he acknowledges that part of the purpose of the second amendment is to enle the citizenry sist,ror impoany dete tempts at tierney.

and i think he's right about that. and in fact, the -- it's important to distinguish between this caricature of the kind of argument that he was alluding to, namely that we have a second amendment right of insurrection, or something like that, which is not true, but there's a long tradition, articulated by james madison, for example, according to which tyranny is less likely to be imposed on an armed citizenry. why is that? because it's more costly to do it. and the fact that through technological and social changes, there's certainly no doubt that the 101st airborne could defeat any group of american citizens with their hunting rifles. that's certainly true. that doesn't change the fact that in less extreme situations, government oppression, government violence can be deterred by the fact that there

are armed citizens. because they raise the prospective cost, or raise the risk of engaging in tyranny. and there are exales of that. for exale durng the '60s in the civil rights movement, where the government and quasi government organizations like the ku klux klan were deterred by visibly and organized grou of blacks and civilrights workers arming themselves to make it more costly to oppress them. although this kindf operates at the margin nowadays, not in the kind of ultimate extreme sense that people like to think of it, it does not mean that an armed citizenry is no deterrent at all against illegal government oppression. >> can i comment on that? >> the gentleman right behind the gentleman who spoke?

>> right. i'm brian bishop from the ocean state policy research institute in rhode island. although anything i have to say certainly isn't considered a policy that our think tank has established. but i'm struck by the contrast that is attempted to be drawn between the first amendment and the second amendment, only because certainly the rhetorical resort in recent -- in the recent contemporary news cycle has been to suggest that indeed the first amendment was what was at fault in the shooting in tucson. and so i think it's somewhat of a kinard to suggest there's a seiny broader difference athe fir amendment n hu yound th sond ds. at least when not acknowledging that one's own camp, or many in it, are suggesting differently. i'm wondering if you've

considered that conundrum. >> anyby wish t cment o th? y. mea u oit may very well be useful to have a public discussion at this juncture about the civility of our discourse, et cetera. captions copyright national cable satellite corp. 2008