chrisderosebooks.com. a discussion and debate on the history of the second amendment the right to keep and bear arms was president of the brennan center for justice at new york university school of law and a tourney allen. it's about an hour. [applause] >> thank you so much ladies and gentlemen. welcome to the national constitution center. it's such a pleasure to see you here. i'm jeffrey rosen the president have thiand thepresident have tl institution. the national constitution center as those of you that have been here before now is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. and that means that we bring together the best thinkers and scholars and commentators from all sides of the constitutional deviate to let you, the people,

make up your own mind and we are doing this on a range of media platforms and want you to please check out our superb we the people podcast which is getting up to 100,000 downloads and bring together top liberal and conservative scholars to debate the issues of the week and i want you to come back over the next few weeks to the constitution center and follow the programs online as we have an extraordinary range of debates and programs. coming up on june 26, we have a new program cosponsored with our friends in the intelligence about the constitutionality of the campaign-finance reform. on june 20 the prominent lawyers will come to discuss their new book about marriage equality and lorenz will be here to discuss his new book and on june 16 we have a program about the meaning of the fourth amendment in the digital age that will feature those that argued before the

supreme court to case the court is about to decide and you will hear from both of them before the court decides its case. ladies and gentlemen it's hard to think of a constitutional issue more hotly contest and important in american life than questions involving the historical meaning and the contemporary significance of the second amendment and i cannot imagine two people better qualified in america to give you the best arguments on all sides of this important debate so that you can make up your own mind and after we tal talked for a bi will ask you to write down any questions you have integrated team and you will be able to interact with our guests. i'm delighted to introduce the founder and partner. allen argued the case before the supreme court, the leading supreme court case involving recognizing the second amendment as an individual right and he successfully persuaded the court

to recognize that interpretation of the amendment so we are so fortunate to have him here today. he's been named by the journal online america's most influential lawyers. he's worked as a deput a deputyy general for the state of california and the senate judiciary committee anjudiciaryw teaching at georgetown law school and we are thrilled to have him. thank you so much for joining. [applause] i was looking left and should have looked right. the second amendment creates unusual bedfellows. to my left is the author of a superb new book. the second amendment a biography. michael is the president of the brennan center for justice at nyu law school and nonpartisan heart of the institute focuses on preventive systems of democracy in the constitution and he directed speechwriting for president bill clinton and is the author of my fellow americans and three other books

publishers weekly has called this book the best narrative of its subject, and i think without violating my duties to be in a moderate and a new journal moderator, i can say that this is a superb book what michael has done so compellingly as to give the narrative account of the amendment with the various drafts banned from the revolutionary state constitutions through the ratification process and the bill of rights in the reconstruction era and he also gives us a sense of the genesis and the meaning of the recent supreme court decisions recognizing as an individual right and the current effects and the surprising lesson to lower courts have interpreted these decisions to allow many of the gun control regulations. but he has a particular view and is going to disagree with of the many aspects of it and we are going to plunge right in.

you make a strong claim which is the supreme court holding that the second amendment is primarily an individual right that has to do with the right of individuals to defend themselves rather than a collective right which is designed to protect the state militias from being taken over by the standing armies. you see the supreme court is wrong as a historical matter into the justice is a bad originalist in his account of the original understanding of the second amendment is not persuasive. tell us please in detail wh plet is that you believe that the justice was wrong. >> first of all, thank you for having us and for all that you do here at the constitution center. i think there are many things that can be said to argue for or to undergird decision but i do think that when justice scalia said after writing it that it was his indication of his vision of original as i'm that the idea that the only legitimate way to look at the constitutional provision is to ask what it

meant the time of the framing i think that is an error. and i took that challenge and went back and looked at what went on around the time of the drafting of the second amendment and it was really striking. the founders coming as the data out of the revolutionary period in the turmoil with deeply, deeply be concerned about these militias as they are in that amendment described well regulated militias and they passionately care about them and they were bulwarks of liberty against the potentially tranquil kingdom or tyrannical central government. they were worried in both of those cases that there might be what is called a standing army which is like professional soldiers like the army that sailed away a few years before. it's important to understand and my real point is that there is a limit to how much we can decide

here and now about what to do with the issue of gun safety and gun rights by just going back and looking at the founding era. those militias are not like anything that we have now. they are not the same as the national guard. any adult man was from 16 to 60 eventually every adult white man was a member of the militia and they were required to own a gun. they were required to own a weapon and bring it from home. and i'm asked was there an individual right or was it the militia was the second amendment about and i say those and neither. it was an individual right to fulfill the civic duty to serve and in a way our questions would make no sense just like in some way their answers make no sense to us. now it's important to note there are plenty. people had guns for self

protection and they believed they had a right for self protection of the english common law but when you look at the text you look at the notes james madison took down the block of the constitutional convention and you look we have some scattered exceptions of the records of the ratification convention. when you look at the debate in the floor of the house of representatives gave marked up the second amendment. what they were focused on is how to protect these states urging militias. it's a different world from what we know now. >> michael has many strong claim and i jumped the gun beginning this conversation without reading the text of the second amendment is going to read it and ask why don't you believe that he's wrong about this founding era history and what supports your view that the founders don't view the second amendment? the well regulated militia being

necessary to the security of the free state and the right of the people to keep and bear arms shall not be infringed. what are the parameters when they choose those words? >> what they meant to do is to secure the people to keep and bear arms into the first deals with the necessity of having the militia if you want to have a free state and give us the reason why they secure the right to keep and bear arms. but even if the framers were entirely wrong, but effectiveness of the militia even if the only thing we need to have a free state is a strong standing army and nuclear weapons, effective diplomacy, what have you. but we do have a state these days here in this country and we don't have the militia until 1791. all the same. the framers opinion about the militia and the reason for codifying the right to keep and bear arms doesn't change the substance of those that

possessed it. we know that the 1689 english declaration of rights secured the right to arms. james madison referenced that in introducing the bill of rights and introducing the second amendment on the floor of the congress. it was well understood by the english courts wil courts well e american revolution that people did in fact enjoy the right to have guns for the defense of themselves and their families. many state constitutions either just before the ratification bill of rights were just after memorial lies to our right to keep and bear arms and not be tied down to any militia duty. and they would have been perfectly understood by the framers that the righ right didt depend upon the surface in the e militia. after all the words right of the people is found in the first amendment and in the fourth amendment. people understood to have the rights in the ninth amendment and the people are not in the tenth amendment if shows that those are different concepts.

so, why is it that in referencing the rights of the people to keep and bear arms we have a discussion of the militia? as michael eluted to come at the fact of the matter is the militia of service in the system depended upon the private individuals who kept their own arms being able to come to the duty with those arms and we have some knowledge as to how they were used. the fear at the time that the framers had is the future government would abolish the people's ability to act out in the militia by targeting the position of the arms and therefore the position was secure with the purpose, partially purpose of picking shoe people could act as militia. but there is no way to read of clause and think that this would be the right that is shown here.

>> i want to acknowledge there is a debate among the liberal and conservative scholars whether or not they intended to protect an individual right or not. and adam was supposed to be here with us today that was not able to. he argues in his book they did have the second amendment to be an individual right of what is accepted gun control control sot to dig in on this because there are others that agree that amendment was supposed to be in the individual rights and you know to states that seem to recognize the right and pennsylvania of all people and its revolutionary charter said that the people have the right to bear arms for the defense of themselves and that was the only constitution that didn't refer to the militia but the virginia amendment proposed by the ratifying convention that madison relied on heavily does also begin with a quote that doesn't refer to the militia that says the people have a right to keep and bear arms in

the well regulated militia. and then to clinch the case there is an english common law right people have against self defense that didn't recognize the militia so those seem to be the strongest or the individual rights interpretation of the second amendment. >> those are good questions come and again to go back to what the sportscaster would say it helps to go to the videotape. for starters if you look at what they said in the settings where they were officially and publicly or not so publicly discussing this they were focused on the militia and how to preserve the militia and make sure that this would not be diminished were crushed. i haven't had the chance to acknowledge that he played a significant role as an advocate in this constitutional campaign that changed the way that we see

the second amendment and the way the court sees it and if nothing else has a place in history for that of course. james madison had notes that reference the bill of rights but the reference to what he said did not refer to the english bill of rights. we actually don't know what he meant. the fact is they had a sense they have the right to protect their homes. they had no need for guns on the frontier but there were also gun laws. they said you couldn't have a loaded gun in the home. it's outside of the context of the militia issue there were guns into there were gun rights and governed by the common law is what the defenders think and they were putting in the constitution why did they put it in the constitution or the

evidence suggests because i came into this not knowing that i thought i would find all of the evidence leans heavily on the idea they were looking for a check on the power pennsylvania was the one state i didn't have a militia. a pennsylvanithe pennsylvania ts split between philadelphia with its cosmopolitan elite and the rest of the states and they thought a lot about whether they were allowed to have a militia or not and part of the answer is the state constitutions that you can have weapons if you want them for your software to protect the state, but it wasn't part of a militia and i noted in the book that barack obama was not the first urban politician to complain about rural pennsylvania coming to guns. it's remarkable how some of the same cultural divides go back that far.

the framers were aware of that provision, and they chose not to include it. what they chose to include his starting talking about the well regulated militia and james madison's original proposal actually had a comprehensive objective provision saying that if yo you have religious scrupls about bearing arms, you didn't have to do your military service in person. person. if the 12 members of the house of representativehouseof represn the debate about the second amendment all 12 discussed the militia into the conscientious objective provision whether that would weaken the militia. so it is striking when you look at whatever the general sentiment there was and what they thought they were putting in at the time. >> although the debate is being well joined, michael makes the point of the preeminent concern of medicine and the majority of the state versus the second amendment was preserving militia against the standing army.

things change around the reconstruction. reconstruction. after the civil war as the scholar differen the friend of e constitution center writes they argue that some supporters of the amendment now incorporate against the state intended to ensure they have the right to protect themselves with guns held important is that reconstruction history to your argument? >> it confirms the fact that the framers indeed solve the second amendment as the individual rights. i agree with the view of the 14th amendment and what it was intended to do and what it accomplished with respect to the rights of arms but this is the sort of change in the amendment with all due respect the bill of rights when it was first proposed and ratified was meant to be the anti-federalists to people that have thrown the visitor to government was going to trample upon all of their

basic rights. the federal response was always that we don't need a bill of rights because the federal parallax the structure and the power to deprive people of their individual freedoms, but as the ratification of the constitution proceeded with some difficulty and there was a great demand by people for some reassurance from a james madison and the federalists agreed to ratify in the bill of rights those things that were not controversial and demanded in the convention and things would address some of the abuse of crown revolutions. the variou various levels of sts positions about the jury trials and things of that nature and yes the very noncontroversial rights to keep and bear arms for the one thing that madison was not going to do and the one thing the federalists prevailed and got the constitution

ratified and controlled in the first congress they were not going to alter the balance of the power between the federal government and the states. they were not going to unravel this new government that had just been created and madison is very explicit about that. and so, when people did come forth for these concerns and he's absolutely righ right thate were concerns by people. there were attempts to yield back some of the federal control over the militia back to the states those were all beaten back. those that proposed in the senate to act for the common defense to the second amendment that was voted down. there was a constitutional amendment proposed by specifically would have had the militia power altering scheme that was rejected as well. and at the end of the day the constitution survived the bill of rights without having anything in its assignment of powers back and forth between the states and the federal government repealed.

and so, we didn't just see a change in the power of the militia. we also didn't see any reveal the constitution still has today which would be a mistake from keeping the troops about the consent of the congress and of course it did meet with the second amendment has to be read as a sort of check on the powerr by the state our understanding of the civil war needs to change, but the civil war itself also prove to people there was a major flaw and the government in that until that point we had believed the right was necessary to control the federal government but no state would violate the right. the government of the state was closest to the people, therefore there was some kind of a right violation in the state level people could just take care of that democratically. in the wake of the civil war and in what we saw in the reconstruction, but proves to be at best naïve and oftentimes tragic and so there is a great demand to ratify something in

the constitution which of course became the 14th amendment. that would wind the states to follow the national standards and perhaps nothing that was more urgently inspired and was speaking about over and over again in the ratification debates and the 14th amendment than the idea that we absolutely have to secure the rights of americans including the newly minted americans that now become citizens. the outrageous claims and the although the history there so that was absolutely a continuation of the understanding of the second amendment. and it was simply a plight now in the new form. >> one more bead on the history because it's important the audience understands before the 14th amendment was passed the bill of rights only restricted the federal government. the 14th amendment now requires

the states as well as the federal government to respect most of the bill of rights including the second amendment and alan is arguing along with some scholars that in light of the civil war experience the second amendment because more of an individual right and more of a desire to allow african-americans to protect themselves from those that are attacking their rights and not getting protection of the federal government. broadly how have things evil over time? it's important to put in the context. after they ratify the second amendment with their great belief in the militia we are putting two months later george washington signed a law requiring that all of the white man by a gun. you may remember that this was cited in the affordable care act

for the supreme court is the other time they can think of when the government ordered people to buy something. [laughter] and george washington signed it under different provisions of the constitution but still. and then what happened is nothing much happened. the militia starts to fade away because the country began to change. change. peoplesoft showing up. people didn't buy their guns. it's got thomas jefferson very upset and they tried to get the registry going of who had once done. they wouldn't serve in the militia and they proved inadequate in the war of 181 18i was a james madison believed that the militia would be strong enough to defend the country until the british invaded and march right past the militia and burn down his house and then after that we didn't think the militia would be an effective military force quite so much anymore. we grew more violent and individualistic.

and there were a lot of guns and so you start to have the laws passed in various states dealing with the concealed carrying of guns and other things like that. and so we started to have a debate about whether the right to bear arms involved an individual right. and eventually what you had growing during this time is the majority view among the courts is that the constitutional protections were again not so much for the individuals as it was for the militia. but you had growing up over the century and a half of the gun rights and ownership obviously. and alongside of them the strong gun laws and they were not seen in the conflict. conflict. along comes the civil war and its right. it's one of the things i hope to be writing this book is i think that there are surprises for liberals and conservatives into surprises for people who see themselves as gun rights people who are much more skeptical of that. after the civil war, there were hundreds of thousands of the

former slaves that return home to the south and many of them served in the union army. into the southern states passed to the laws taking away the guns just from african-americans. this was in fact one of the reasons they passed the 14th amendment. it is much more jumbled than suggested with a rationale was for including this in the amendment. there was some focus on the militia but it is the case that making sure that those former slaves could get guns was one of the purposes. it wasn't one of the purposes that was sold to the public when they put it up for the ratification. ratification. it's also the case that when the military took over the south, as reconstruction moved along there were strong gun laws in place at the same time as the 14th amendment. unfortunately, one of the things that did happen is they moved

quickly the bill of rights did not actually apply to the states. and both in the florida house case and the second amendment specifically. it's one of the egregious parts of american history as you know that those rights were strong pretty quickly. and so they are related and turned -- and i'm familiar with the writing he be pleased that it is located in the part of the 14th amendment in the immunity clause that hasn't been enforced barely at all. subsequently he argued that that is the basis for the gun rights and from the supreme court they chose not to take that view. but it wound up being part of this evolution where you had more of an individual sense of gun rights and gun laws and then hand in history which is the way that it was for about a century and a half. and the supreme court for times before the heller case considered the amendment and

didn't find that it recognized an individual right to gun ownership outside of the militia. most recently in 1939 when it upheld the first federal gun law. it turns out that what people's views of this have a lot more to do with their view of the central government and their view of the individual rights than most of anything else. and some in the 30s there was no hesitation in the polling. >> we heard the arguments on both sides and now we are moving from the dispute of th disputede original understanding both in the framing and during the reconstruction to the spin court interpretations of it and to the actual gun control laws that were passed. michael just said that immediately the congress began to regulate the use of the guns as president jefferson ordered to return to the military guns and the states began in the era to pass modern gun control laws focusing on easily concealed pistols or knives and even talks about the signs in the wild west

that says no guns allowed here pack up your pistols at the door then he says from the beginning of the courts generally oppose these by embracing a collective militia-based view and they overturned the law for the weapons of 1820. the state and federal law passed for most of history before you got involved in the generally uphold those laws. >> this is one of the problems in the boo book that is well wrn is that it has many senses of omission and one of the things i don't see its discussion of the book is the first court case that address with the second amendment might mean in the context of the gun law and that was of course the supreme court and 4 46 coldest eight versus ne struck down the georgia law that barred the carrying of handguns for self-defense.

it's true that there were courts that had upheld restrictions on the concealed carrying of handguns but the courts have always said coming into the case goes through some of these decisions you can go ahead and read them for yourselves the courts viewed concealed carrier restrictions of more regulations upon the manner in which one carried guns had the case from 1940 in alabama there wer1940 an louisiana in the 1850s among others all confirmed that there is in fact an individual right to keep and carry guns for self defense but the law but regulated the man of the people exercise of those rights did not actually violate that right and so the idea that there was a prevailing rights view is simply contrary to the text of the law that has been discussed many times and quite thoroughly by the supreme court in the case. it shouldn't be surprising that

even in the immediate aftermath of the civil war when the radical republicans who have chosen to be of course for the defeated south were presented with a measure to disarm these militias that were still hanging around we can disband them but we can't disarm them because of course nonetheless they have the right to keep and bear arms and that was respected for the defeated confederates and a soda right of course was respected for the losers of th the civil r that extended by the 14th amendment to the people generally including specifically those people that were most in need of relief during that timeframe so of course there are some people in america who make these wild claims about there being no ability to ask any sort of law whatsoever that has anything to do with firearms, and i don't hold that view and i

don't really know of too many who are practicing in the field who do. there is room for some regulation but that doesn't mean there is no right at stake that people have never accepted that right before. so the right absolutely is one that has always been understood. there's never been a break in the understanding. there has been a vision that has popped up that actually didn't pop up in the spin court. people claim that it's from 1938 confirmed but that is not the case. >> talk about the regulations and you said something very important which is that you believe that the individual rights are consistent with some regulations but before doing that i want to give you a chance to respond to the claims that the jurisprudence is more competitive than you suggest and plenty of courts raised that view earlier.

>> some courts did before the civil war more followed what was called the arkansas doctrine and pretty sure that it was in the footnotes of the book which are endless. but generally speaking the majority of the scholars i came to agree with the leave the majority doctrine was called the arkansas doctrine which they said it was a writer dealing with the militia. but you know, it is really kind of an unusual thing for somebody that has managed to make a major change in the constitutional law. so much energy denying there was any change of all i think is maybe one of the ways that one persuade the supreme court to do something. and it is also noteworthy that those that want to play to history kind of tend to stop announcing 1900. i think there was a century or more since then when the country changed a heck of a lot and we moved into cities. there was more density in the ae

danger from guns in all kinds of other things in these densely populated cities then and now thethan there was in the rural country in the early 18 hundreds and the bus cities and states passed a variety of walls and were not struck down by the courts and the reality is that before there was a very effective 30 year campaign by those who beat even what they've recall gun rights to change the way we see the second amendment. before that, the doctrine was just a different and it was given a voice by the former chief justice of the united states supreme court who as you know was a conservative appointed by richard nixon who said in 1991 that the idea that the second amendment recognizes and unrelated individual rights to the gun ownership was a fraud on the public. that was warren burger who said

that and so i give credit to these massive changes in the doctrine that has been leaked since then and i think it is something of a classic campaign and we ought to hear about it. at the constitution center i think ruth vader ginsburg was called the thurgood marshall of the movement and i hear the thurgood marshall second amendment -- >> tell us how you decided to bring the case and what your strategy was and what it feels like to give the second amendment. >> we have these powers to bamboozle but the sad reality is that i latched those towers and i argue the law that has been understood by centuries by a great many people that has been researched quite extensively by countless others.

it's not a surprise that in the early part of the 20th century the courts were not running around striking down the gun laws. they were not striking down any kind of law. it wasn't until the 1920s they struck down dealing in the first amendment and it wasn't until 1965 the congress was invalidated under the first amendment and the fact of the matter is that it wasn't even understood that the bill of rights could piece by piece apply to the states at all it took a lo little time to litigae those issues and the federal government wasn't understood to have the power to regulate anything else and we didn't really see i any whole lot of te federal gun laws.

we see us take hold until a little bit before later on to the history, but that is not to say that they were not there and it was somehow dormant during that time. in 2001 the fifth circuit u.s. court of appeals in the case called u.s. versus emerson had for the first time really taken a serious look at the second amendment and studied its history, looked to these original sources and concluded in a very bad opinion it does secure an individual right and this caused a circuit conflict in the other courts bu courts te beerecords that havebeen examinr degree whatsoever without much analysis and they were working at the institute for justice in

washington, d.c. and realized that given the circuit split and by a large amount of scholarships on the amendment virtually admitted that sooner or later there would be a supreme court case dealing with it and wouldn't it be better if there were supreme court cases that were struck into responsible manner and not one of these accidental cases that arrived in the context of drug dealers and bank robbers and other people who may not be in the best position to represent this very important right. and so they started putting together a case with robert of the cato institute and then i was called into active as the council on that case. he gave me a call that night and i sort of went through what they were thinking of doing.

this was definitely not something that we invented and it wasn't something that the nra invented. again, the book i think that's a very good job of spelling out the collective rights point of view but this misses some of the sources. i was surprised not to see any reference to the book for example to st. george tucker who in 1803 has treaties on reviewing and spelled out the second amendment as it is going back to the construction of the right of the self-preservation. william, another very influential scholar writing in the 1820s into the treatise also on the constitution dow fod the second amendment to be an individual right and he was very well-positioned on that matter as a member of the pennsylvania

assembly he actually ratified the second amendment and the other divisions in the bill of rights not mentioned in the book and adopting the individual rights model and even the american bar association, not exactly a right-wing militia organization to the fellow that wrote an essay of the model of the second amendment. so we see that this goes well beyond modern-day attorneys and other people that may have interests in preserving the right to arms. >> we could debate that history generally, but the core of your objection is justice scalia

didn't engage in history. you said he didn't seek to explain the intent. this is an opinion focused on the text and you say that he takes us on a claustrophobic and unpersuasive reading of the text that he scrolls through with the historical background and generally he tortures language to take it out of the context and that he is not a convincing originalist. they deal with the militia and the other 60 to take the words and i would suggest out of the context. sometimes the text as context doesn't work. he consulted a dictionary like a scrabble player. he proved he got the triple score and he looks as we just

heard somebody got the prize for the essay in 1955 articulated the constitutional argument about what the consensus was for 200 years before but i will try that one sometime. i think that justice leah relies on the history he leaves out. they moved out a serious consideration of the fact that it was a term used almost inevitably in the founding generation to refer to that military militia service. he articulates the doctrine and once you take away the originals he says there's an individual right but like all of the individual rights is limited he says the core of the second amendment and the protection was a commonly used weapon.

it leads to further consideration what the extent of that is or what those limits a are. there are arguments for that approach. it's sort of untethered from the history that he goes through and the only thing i can say is we don't want to leave on the table the footnotes because there's a lot of selective use of some of those stray and somewhat obscure sources but again i just we are here the constitution center and the way the constitution center has always been made is by the people arguing about the constitution and what happened in the nra, the national rifle association on this issue is in 1977 previously the nra had been

started after the civil war and it was started by the former union officers concerned about the poor marksmanship ended up with this use of the military preparedness and of course eventually kind of spoke for hunters or the sportsman in 1977 that what is called the revolt of cincinnati at the meeting of the group there was kind of a rebellion among the members and the old group leadership was pushed out in a much more ideological group was installed with leadership and if action resulted in the constitutional persuade to change the way the supreme court in the country solved the second amendment. they worked hard to change the public opinion and to change the positions of the government and the justice department changed its position on the second amendment so by the time over the past decade it was time to go to the court in a sense it

was the apple fell like the right apple from the tree. it wasn't that surprising and it was not that controversial when the courts ruled as it did. a lot of the liberal scholars said what do you expect? a lot of the conservative judges and scholars were upset because they said this was the same kind of constitutionalism that they felt they would be fighting. they compared it to ruby way that that was the highest of insults and so i think again what we saw was over three decades of the classic campaign to change what was seen as something very said bill. >> michael noted wilkinson criticized the decision for being historically unrooted, but i want to focus now o on really the most significant question which is the possibility of

regulation. great questions and one of them puts the question starkly the supreme court indicated there might be some limitations. they said that you agree with that statement and michael notes that doesn't are challenging the gun laws that were brought in the first two years it was upheld in all but two and with what sort of restrictions are consistent in the second amendment. >> first of all those numbers might be misleading because a lot of the cases are criminal cases where some of the charges with having a gun in the course of robbing the post office the lawyer shows the second amendment claim and there's the one to rub the post office of a handgun. probably not surprising. sometimes courts get it wrong

and sometimes courts get it right but that is true to everybody. they said that in the second amendment is going to disappoint both sides just as the first amendment often disappoints both sides of the speech where there is a legitimate issue. we understand wha what the right protects into some activities are simply outside of the scope of that right. and so, at the minimum it wouldn't be in the people's rights to keep the arms historically are those that might fall outside of the scope and therefore not be protected at all and other times when history runs out and you actually have to see how that concept into the constitution applies to the modern scenario than there is room for some construction and we try to weigh out the fundamental interests in having arms for the traditional purposes against whatever the regulatory interest might be. in terms of what type of guns

you can have or other arms, these cases come up frequently and here we look at who involved with a handgun ban and so we brought enough simply to declare that amendment in the individual rights and the question then became okay what do we do about handguns and are they protected by the second amendment and the speech but not all speech is protected by the first amendment. the perjury, speech on terrorist threats or speech not protected. scum of the court then looks back to the case in the 1930s and have found the test that is quite useful and it basically holds as follows. if the arms are of the kind that would be in common use for the traditional law school buses, people can effect to have them for those lawful purposes. if they are not, then it would not be protected. and so, we do not have the grenade season for deer.

things like that are obviously going to be outside. there might be some closer questions and even to the extent that some might be appropriate in some contexts but not others within those regulations might be appropriate or not as well. for example, there is nothing unusual about taking a rifle to go hunting with. there's nothing unusual using them for self-defense or at the gun range but the same rifle walking around central park people might have a few questions about what is going on and so of course there are some restrictions that are protected. so again, we need to see how the cases shake outfit that is the way the constitution works. disputes arising to people with the data them an then and we lea case-by-case basis as adoption develops what rights we enjoy and what we don't. >> out what you answered that

liberal constitutional scholars agree the second amendment protects the individual right and lawrence will be here soon. but more broadly, i want to ask why should liberals be that upset regardless of whether it is called an individual right use it in practice most of the regulations challenged have been upheld so why? >> i don't think the sky is falling. i think understood rightly comment since individual gun rights and common sense on laws and regulations go hand-in-hand and that is what we have seen since the cases. it's been a very striking pattern across the states and in federal court where judges have said yes. but the society has a right to protect itself and we are going to examine these to see if there is a reasonable purpose for them and if there is a strong governmental interest and

upholding them with some exceptions which may come back for more litigation at the supreme court. and in some of the gun rights supporters have decried dispassionately and they've called it a flight attendant to the resistance which is the refusal to follow brown v. board of education. i think that these courts have gotten it right generally speaking we have seen that you can both have reasonable gun rights and gun safety. the question that you asked about the scholars and their voices were quite important and honestly they were very respected because of the liberals callers to speak up in this way was reported at the time in the newspapers and "the new york times" and elsewhere they have different views about what the individual right comes from. they talk about it being the right of the rebellion and not coming from the second amendment

but from the 14th amendment and the privileges so they sort of gone in different directions and i don't think they kind of constitute a unified school but i will say that they do believe into things like the assault weapons ban that is proposed before the congress is constitutional. today is in fact what is interesting so if you remember last cheer after the legislation that was moving through the congress was to strengthen the background checks and extended them especially to gun shows that was supported by upwards of 90% of the public in the polls. that's a bipartisan bill had a majority of support in the senate bill that was killed by a filibuster. people ask me does this mean the second amendment killed that restriction? and i think the answer is no because i think it is pretty

plain that would have been constitutional in the second amendment it was more of a filibuster in the senate that had to deal with that than the second amendment. i think issues such as assault weapons and other things are better than open question. but even there they gave interviews to the "washington post" and said certainly that he thought it was constitutional, so as it was described last year i don't think that the sky is falling. >> what is constitutional. do they have a bunch of specifics they want to know about and they ask for background checks and assault weapons constitutional and bans on assault weapons can we restrict automatic weapons and require just ration of gun owners and background checks? what are your thoughts about the law in states like texas and are you really saying military style weapons on the streets can't be kept from the mentally ill?

>> how do you get all of these cases in the time remaining? >> i will take some of the easier ones. i would like to get to other questions if there's time. i do not leave these people should access the military reference or any sort of weapons at all. background checks will be upheld by the federal court. at least if the background checks are performed in a way that is not too intrusive or doesn't take the amount of time those that would be a fellow of the background check is more like an fbi background check and takes years to complete that if you check where the computer systems are checked and where people have due process rights to challenge it .-full-stop but if that comes back, those are going to be upheld. i don't believe that we can prohibit firearms of the kind into common use for the traditional purposes just because we label them as old weapons or because it looks

scary. the effect of the matter is that all of these assault weapons ban is typically reach very plain-vanilla arms are often times much less powerful than guns that do not look as menacing but that's almost if you look at the functionality of these arms and often times in these type of walls. this is very badly misundersto misunderstood. ..

>> him banning ( kerry of guns for self-defense will be allowed as well. it is the state's choice i know at a winkler have is written very provocative plea that don't worry about it. then you don't violate the constitution it is the extreme thought and he may have been onto something. >> which judicial decisions are you concerned about? you talk about bringing down the illinois law that prohibits the carrying of a loaded weapon outside the home as a piece of passive

aggression those were criticized but now you go to some pewter regulation that could be challenged in court as market in addition. >>. >> the popular opinion so interesting because he is vociferous to continue those in the opinion to rehash them then say cannot do anything about that and i suggested -- and they could give further that i could go now they have written the law if there is the much more liberal allies law to carry guns and illinois and if you walk into a place the business there is a decal that says if guns are prohibited or not. i not know what kinds of laws will be a risk my concern looking at this not

so much with the expertise of gun-control but concerns about trying to make constitutional doctrine based on a misreading of the role in the american constitution. the original intent is obviously important by one of the factors we have decided how to read the constitution and governors also those -- as always been the way in the way we read these provisions that might concerned with that heller regime is to use the degree it says if something is traditionally an awful lot must be lawful now but what if it was brand new? they had muskets then they don't have them now and i want to make sure that's pushing this off to court to to apply the constitutional test does not choke off that