do have to tell you that the economy right now is pretty tough, even for lawyers. >> well, thank you very much, hans. great having you. [applause] >> at the weekend booktv brings you 48 hours of nonfiction authors and books on c-span2. keep watching for more television for serious readers. >> all week watchable tv in prime time. monday at 8:30 p.m. eastern and tuesday through friday at eight, booktv features a wide range of topics including foreign policy, law and legal issues, iran, coverage of the fairs and festivals from across the country and the bestsellers from this year. and let us know what you think about the program you're watching.

join the c-span conversation, like us on facebook, follow us on twitter. >> next, a discussion and debate on the history of the second amendment, the right to keep and bear arms with michael waldman, president of the brennan center for justice and duke university school of law, and attorney alan gura. it's about one hour. >> thank you so much ladies and gentlemen. welcome to the national constitution center. it's such a pleasure to see you here. i am jeffrey rosen, the president of this wonderful institution, the national constitution center. as those of you been here before no 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 would bring

together the best thinkers and scholars and commentators from all sides of the constitutional debate that transfixed the nation and let you that people make up your own mind. we're doing this on a range of media platforms, and want you to please checkout our superb podcast, our we the people podcasts which are getting up to 100,000 downloads and bringing together top liberal and conservative scholars to debate the issues of the week. i want you to come back over the next few weeks to the national constitution center and to follow programs online. we have an extraordinary a range of debates and programs. coming up on june 26, we have a new program and debate cosponsor with a friends in the intelligence square about the constitutionality of campaign finance reform. on june 20 a prominent lawyers will calm to discuss their new book about marriage equality. laurence tribe will be here to discuss his new book, and on

june 16 we have a phenomenal program about the meaning of the fourth amendment in the digital age but it will feature the two lawyers who argued before the supreme court and you will hear from both of them for the court decides its case. ladies and gentlemen, it is hard to think of the constitutional issue more hotly contested, and important in american life than questions involving vestal communing and they can temper significance of the second amendment. 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 that we talk for a bit, i'll ask you to write down any questions that you have had a great town hall team will collect them and be will to interact with our gas. i'm delighted to introduce alan gura, the founder and partner of his law firm. he argued the heller case before

the supreme court, the leading supreme court case involving recognizing the second amendment as an individual right come and he successfully persuaded the court to recognize that interpretation of the second amendment. we are so fortunate to have him here today. he's been in by the "national law journal" among america's most influential lawyers. he's worked as a deputy attorney general for the state of california, and is now teaching at georgetown law school and we are thrilled to have them. thank you so much for joining. [applause] >> i was looking left and should have looked right. although the second and great unusual bedfellows. to my left is the author of a superb new book, the second a minute, a biography. michael waldman as the president of the brennan center for justice at nyu law school, a nonpartisan institute that focuses on improving the systems

of democracy and the constitution. he directed speechwriter for president bill clinton, the author of my fellow americans, three other books. publishers weekly is called of this book the best narrative of its subject and i think without violating my duties to be a moderate, a neutral moderator, i can say this is a superb book, what michael has done so compellingly is to give a narratively accessible account of the history of the second amendment, what the various drafts of the men from the revolutionary state constitutions through the ratification process and the bill of rights, and he also gives us a sense of the genesis and meaning of the recent supreme court decisions recognizing the second amendment as an individual right, and the current effects and the surprising lessons the lower courts have interpreted these decisions to allow macon control regulations rather than strike again. but he has a particular view of the second amendment.

our i think with this great many aspect of it and we're going to plunge right in. michael, you make a strong claim which is that the supreme court's 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 state arab militias are being taken over by standing armies. he said the supreme court is flatly wrong as a historical matter. justice scalia was a bad original list in his account of the original understanding of the second amendment is not persuasive. hell as please in detail why it is you believe that justice scalia was wrong. >> first of all thank you for having us, and for all you do here. at the national constitution center. i think there are many things that can be said to argue for or to undergird palletization. but i do think that when justice scalia said after writing it was

vindication of his vision of rituals but the idea of the only legitimate way to let a constitutional provision is to ask what it meant at the time of the framing. i think that that is an error. and i took that challenge, 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 they did out of the revolutionary period at a time of huge drum on were deeply, deeply concerned about these militias, as they are in that amendment described well regulated militias. that ashley judd about them, believe there will works of liberty against the potentially tyrannical king or potentially tyrannical central government. they were worried in both those cases that there might be what would be called a standing army which is like her facial soldiers like the army that it just sailed away a few years

before. it's important to understand and my real point is that there's a real limit to how much we can decide here and know what to do about the issue of gun safety and gun rights by just going back and looking at the founding era. those militias are not like anything we have now. they are not the same as the national guard. every adult man was from 16 to 60 eventually every adult white men was a member of the militia. they were required to own a gun. they were required to own a military weapon and bring it from home. i'm asked was this a right, an individual right or was it a militia? what was the second amendment about, individual right or the militia? i sort of see both and neither. it was an individual right to fulfill their civic duty to serve. and in a way our question would make no sense just like in some

ways their answer makes no sense to us. now, it's important to note there were plenty of guns. people had guns for self protection. they believed they had a right to self protection under the english common law, but when you look at the text, you look at the notes that james madison took down the block at the constitutional convention. you look with some scattered exceptions of the record of the ratification convention. when you look at the debate in the floor of the house of representatives, a mark of the second amendment. what they were focused on was how to protect these states militias which were again made up of citizen soldiers bring their guns from. so very different world from what we know now. it is striking when you see what they were up to. >> michael has made a strong claim. i jumped the gun but beginning this conversation with a reading the text of the second amendment i'm going to read and ask alan, why do you believe he is wrong

about the founding era history and what support your view that the founders don't give us a commitment as an individual right? a well regulated militia, being necessary to security of a free state, and the right of the people to keep and bear arms, shall not be infringed. what did the framers meant speed with what you meant to do was secure the rights of people to keep and bear arms. the first clause deals with the necessity of having a militia if you want to have a free state, gives us the reason as to why they secured the rights to keep and bear arms. but even if the framers were entirely wrong, effectiveness of the militia, even if the only thing we need in order to have a free state is a strong standing army, nuclear weapons, effective diplomacy, what have you, we do have a state these days here in this country and we don't have the militia system of 1791. all the same, the framers opinion about militias and their

reason for codifying the right to keep and bear arms doesn't change the substance of those who possessed. we know that the 1689 militia declaration of rights secured the right to arms. james madison referenced that in introduciintroduci ng the bill of rights and edited the bill of rights and introducing the segment on the floor of the congress. it was well understood by english courts well before the american revolution that people did, in fact, enjoy a right to have guns for the defense of themselves and their families. many state constitutions either just before the ratification bill of rights or just after memorializing the right to keep and bear arms and not be tied down to any militia duty. they would've been perfectly understood by the framers that the right didn't depend upon service and the militia. after all, it's done in the first minute and in the fourth

amendment. people understood to have rights in the ninth amendment, the people are not states. the tenth amendment shows those are different concepts. so why is it that in referencing the rights of the people to keep in their arms do we have this discussion of the militia? as michael alluded to it, the fact of the matter is that militia service depended upon private individuals who kept their own arms been able to come to the militia duty with those arms and have some knowledge as to how they were used. the fear at the time that the framers had was that the future to radical government would abolish the people's ability to act out in militia by targeting the possession of arms and, therefore, possession of arms was secured with a purpose, partially the purpose of making sure that people could act as militia. but there's no way to read that clause and think that this must

be limiting the operatives right that is shown here. >> i want to acknowledge your that there is a series of debate among liberal and conservative scholars about whether or not the founders intended to protect an individual right or not. adam winkler who was supposed to be with us today but it is not able to argues in his book that the framers did attempt the second amendment to be an individual right, although they would've accepted in control. i want to dig in on this, michael, because there are other scholars who agree that the heller court a minute was supposed an individual right. you know two states that seem to recognize an individual right, pennsylvania of all people in this revolution a charter said that the people have a right to bear arms for the defense of themselves and the state that there is no reference to militia. but the virginia amendment proposed by the virginia

ratified convention that madison relied on heavily does also begin with a quote that doesn't refer to militia. it says that the people have a right to keep and bear arms, ma and then a well regulated militia and so forth. been the case as alan says there was this english common law right of the people didn't recognize the militia. so those individual strong as arguments for the individual rights interpretation of the second amendment. what is your response be? those are good questions. i again, to go back to what the sportscast with a, it helps to go to the videotape for starters. if you look at what the framers said in all the settings where they were officially and publicly are not so publicly discussing this, they were focused on the militia. and how to preserve the militia and how to make sure that this against tyranny would not be diminished or crushed. alan, i should start, i've not had the chance to acknowledge

that he is but a very significant role as an advocate in this in a very significant constitutional campaign that changed the way we see the second amendment and change the way the court sees it. if nothing else, has a place in history for that, and then of this book of course. james madison had notes which reference the english bill of rights but the reference of what he said and the house of representatives did not refer to the english bill of rights. we don't know what he meant in those notes, but there's no basis for thinking he said it. but the fact is they had a sense of they had a right to protect their homes, to shoot vermin, certainly a lot of need for guns on the frontier but there were also gun laws. the city of boston said you could have a loaded gun in a home. there were laws governing the storage of gunpowder. so outside the context of this militia issued every guns and their gun rights and they are

governed by common law. but what did the framers to think that they're putting in the constitution and why did they put in the constitution? all the evidence suggests, surprising so to me, because i came into this not knowing what i thought i would find, all the evidence leans very heavily on the idea that they were looking for a check on federal power. pennsylvania is an interesting sample. pennsylvania was the one state that did not have the militia. pennsylvania then as now was split between philadelphia with it's possible to delete of quakers and the rest of the state, the backwoods people, and they thought a lot about whether they were allowed to militia or not. and part of the and was that their state constitutions that you can have weapons if you want them for yourself or to protect the state, but it wasn't part of the militia. i noted in the book that barack obama was not the first urban politician to complain about rural pennsylvanians -- is

remarkable how some of the same cultural divides go back that far. the framers were unaware of that provision, and they chose not to include it. what they chose to include in the second amendment was starting with talk about the well regulated militia. james madison's original proposal actually had a conscience as object a provision saying that if you had religious scruples about bearing arms, you didn't have to do your military service in person. if the 12 members of the house of representatives who spoke in the debate about the second amendment, all 12 discussed the militia and actually the conscientious objector provision whether they would weaken the militia. so it is striking when you look at whatever the general sentiment there was, whether that were putting in at the time. >> alan, although this debate is being well joined, michael makes the point that the preeminent concern of madison and the

majority of states versus the second amendment was preserving militia against the skinny on. things change about reconstruction, and after the civil war as a scholar writes, the poster boy of arms more from the concord minute in the caroline friedman. they argue that some supporters of the 14th in it which incorporates the second amendment is against the state entities to ensure black citizens the right to protect themselves with guns. how important is that reconstruction history to your argument? >> the reconstruction history confirms the fact that the framers indeed sought the second amendment to secure rights. i grew with mark's view and what intended and what effect an accomplished with respect to rights of arms. this was a change in the view of the second and. with all due respect the bill of rights was first proposed and ratified was meant to be the

anti-federalist, the people who are afraid that new federal government in washington which eventually would be founded was going to trample upon all of their basic rights. the federalist response was always that you don't need a bill of rights because the federal power lacks the structure government lacks 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 in the country for some reassurance, james madison and the federalists agreed to ratified in the bill of rights those things that were not controversial, things that people have demanded in the state conventions and things that would address some of the abuses of the crown in the revolution. so we saw that applied, security for the right of religious conscious of security for the right for speech. various criminal justice provisions about jury trials and things of that nature, and just

that their non-commercial right to keep and bear arms. the one thing that madison was i going to do, the one thing the federalists would prevail, but that the constitution ratified, there are going to alter the balance of power between the federal government and the states. they were not going to unravel entirely this new government that it just been created. madison was explicit about that. and so when people did come forth for these concerns, and he's right, there were concerns by people. there were attempts to yield back some of the federalist control over the militia back to the states. those were all beaten back. there was a proposal in the senate that adds the words for the common defense to the second a minute. that was voted down. there was a constitutional amendment proposed a specific would've had this militia power altering scheme. that was rejected as well. 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 any change in congress' power over the militia. we also didn't see any repeal of the constitution so as to they which forbids states from keeping troops without the consent of congress. of course, if the second amendment has to be read as some sort of check on federal power by the state, then our standing is the civil war needs to change. but the civil war itself also proved to people that there was a major flaw in our form of government to up until that point we believed that the bill of rights was necessary perhaps to control the federal government, but no state would violate their rights. the government of the states was closest to the people and, therefore, some kind of rights violation of the state level, people could just take care of that democratically. in the wake of the civil war and

some of the horrors we saw in the reconstruction, that proved to be at best naïve and oftentimes tragic. so there was a great demand to ratify something in the constitution which, of course, became the 14th amendment, that would bind the states to fall national civil rights standards. it was breast nothing those more urgently desired and spoken out repeatedly over and over and over again during the ratification debate over the 14th amendment than the idea that we absolutely had to secure the rights of americans, including the newly minted americans, the friedman had now become citizens. we needed to secure the rights to arms because they were the subject of all kinds of outrageous terrorists and clan vows and we all know the history there. so is absolutely a continuation of the understanding of the second amendment. it was simply applied now in a new form. >> it's important soar audience understands, before the 14th

amendment was passed, the bill of rights only restricted the federal government. the 14th in them at now requires states as well as the federal government to respect most of the bill of rights include the second amendment, and alan is arguing along with some scholars that in light of that civil experience, the second amendment becomes more of an individual right and a desire to get americans to protect themselves from mobs who were attacking their rights and not getting protection from the federal government. michael, did reconstruction change things? even if you're not persuaded of individual rights at the time of the framing, did it become one after reconstruction? brought the, how have things evolve over time? >> the stronger argument than the revolutionary era. it's important to put in the context. so what happened after the past, after the ratified the second amendment?

two months later george washington signed a law requiring that all adult white men by again. you may remember this was cited in the affordable care act litigation before the supreme court, the other time they could think of when government ordered people to buy something last night spent it was a mandate. >> and george washington signed a. under different provisions of the constitution, but still. and then what happened was nothing much happened. the malicious start to fade away because the country began to change. people stopped showing up. people didn't buy their guns. it got thomas jefferson very upset the he tried to get the registry going of who had what when. people wouldn't buy the guns. they didn't serve in the militia. malicious proved inadequate in the war of 1812. i was a james madison believed that the militias will be strong enough to defend the country until the british invaded and marched right passed the maryland militia and burn down his house. but then after that we didn't think the militias would

be an effective military force quite so much anymore. the country grew west. we grew more violent the we grew more individualistic. there were a lot of guns. so you start have laws passed injuries states dealing with concealed carrying of guns and other things that do. the. so we started to have a debate over whether the right to bear arms involved an individual right. eventually got sort of growing during this time in a sense, the majority view among the court was that the constitutional protections were again not so much for the individuals as it was for the militia. but you had growing up over this century and a half of gun rights and a lot of gun ownership, and alongside them strong gun laws. they were not seen as in conflict. along comes the civil war and is exactly right. one of the things i hope to do in writing this book is i think there are surprises for liberals, the price for conservatives, surprises for people who see this is as gun

rights, people are much more susceptible to that. -- acceptable to the. after the support that hundreds of thousands of former slaves who returned him to the south, he of them served in the union army. southern states pass laws taking away guns just an african-americans. this was, in fact, one of the reasons that i passed the 14th amendment. it's much more jumbled than suggested as to what the rationale was for including all this in the 14th amendment. some people seem concerned blacks have against the corba not watch. there was focus on militias explained the case that making sure the former slaves could get guns was one of the purposes. it was not by the way one of the purposes that was sold to the public when they put out for ratification. it's often the case when the military took over the south as reconstruction move along, there were strong gun laws in place at the same time as the 14th amendment.

unfortunately, one of the things that did happen was that the supreme court ruled pretty quickly that the bill of rights did not actually apply to the states. both in the florida house case, it's one of the egregious parts of american history as you know is that those rights were withdrawn pretty quickly. so it didn't turn -- i'm going with the writing, the right is located in a part of the 40th minute, the privilege of the into clause that has not been enforced, barely at all. subsequently he argued that was the basis for gun rights in front of the supreme court of the screen court chose not to take that. but it wound up being part of this evolution where you had more of an individual sense of gun rights and gun laws hand in hand throughout american history which is really the way it was for about a century and a half. the supreme court four times

before the heller case considered the second amendment, and four times did not find that it recognized an individual right to gun ownership outside the militia. most recently and most extensively in 1939 when it upheld the first federal gun law. it turns out that what people view, have a lot more to do with their views on central government and the view of government and individual rights that most of anything else. in the '30s there was no hesitation in upholding it. >> i think the historical debate is well joined and we've heard a good argument on both sides. now we're moving from the dispute about the original understand of the text both in the frame and during reconstruction to the supreme court interpretations of it and after gun control laws that were passed. michael has just said that immediately congress again to regulate the use of guns. president jefferson ordered return to move to guns, states

began in the jacksonian era to pass the modern gun control laws focusing on easily concealed pistols or knives. signs in the wild west, no guns allowed to your our leader pistol at the door. and then he says that from the beginning courts generally upheld these laws by embracing a collective militia-based of you, and he says the few state courts to the contrary like kentucky which overturned a law that barred the carrying of concealed weapons and making daschle were outliers. alan, what's your response to this claim that states and the federal government passed gun control laws and over the course, course agenda upheld of those laws. >> this is what my problems with the bucket which is very well-written is that as many senses of omission to one of the things i do see too much discussion of the book is the first court case that squarely addressed what the second amendment might mean in the context of a gun law. that was of course the supreme

court in 1846 it is called state versus nine struck down the georgia law that barred the carrying of handguns for self-defense. it's true the records that had upheld restrictions on the concealed carrying of handguns, but that's because the court had always said, the heller case goes through some of these decisions, you can go ahead and read them for yourselves, that the courts viewed concealed carry restrictions as new regulations upon the manner in which one carried guns. ..

there is an objection made that we can withstand that in these people still have that respect did even for the confederate -- extended by the 14th amendment to the people generally including specifically those people who are most in need of relief during that time.

so of course there are some people in america who make these wild claims about there being no ability to act whatsoever that has anything to do with firearms. i don't hold that view and i don't know many two attorneys who go back. there is room for some regulation, but that doesn't mean they've ever accepted death rate before. so the right is absolutely one that has always been understood. there has been from time to time the decision to pop up, but it didn't pop up in the supreme court. people claim that in 1838 confirmed. >> you said something very

important that you believe the individual rights are consistent with the regulations. before doing that, what to give michael a chance to respond to the claims and of course the individualists. >> some court stood before the civil war followed what was the arkansas doctrine and i'm pretty sure it's in the footnotes of the book. generally speaking, the majority came to agree with believe the majority doctrine was called the arkansas that turn, which was right dealing with the militia. you know, it's kind of an unusual thing for somebody who has managed to make a major change in constitutional law. so much energy denying there was any change at all. they persuade the supreme court to do something. and it's noteworthy that those who want to point the history

around 1900 about a century or more since then for the country changed a heckuva lot. we moved into cities. there's more density, more danger from guns and all kinds of other things in densely populated cities than populated cities then and now then there was in the rural country. in cities and states pass a variety of flaws. there is a very affect is campaign by those who believe in what they would call ben writes to change the way we see the second amendment. before that, the doctrine was different and it was giving voice by the former justice of the united states supreme court, warren burger, who i see no with a conservative appointed by richard nixon% in 1991 that the

idea that the second amendment recognizes an unwilling individual right to gun ownership was a fraud on the public. i was warren burger said that. so i give credit to the massive change in doctrine since then and i think it is something of a classic campaign and we have to hear about it. >> you are just paid the highest compliment. i think ruth bader ginsburg was the thurgood marshall. now tell us how you decided to bring the heller case and what your strategy was and what it feels like to lead to thurgood marshall's amendment. >> well, appreciate the compliment. the sad reality is all i did was

simply argue the law that's been understood for centuries by great people and research and extensively by countless others. it is not a surprise that the early part of the 20th century cords were not running around striking on gun laws. it was not until the 1920s dealing with the first amendment they are enacting congress was invalidated the fact of the matter is not into very deep into the 20th century was that even unders to piece by piece, sometimes hearing their. i took a long time to litigate those issues and throughout most of our history, the federal government does not regulate firearms to much of anything else and we just didn't really

see a whole lot of the belmont was certainly until new laws came out in 1930. so of course as is true with much of the constitution, until a little bit later on in tour history. that is not to say this conflict there and they are doing my time. the reason the heller case came out, however, was in 2001 the u.s. court of appeals in the case called u.s. versus emerson had for the first time taken a serious look at the second amendment, studied the history and concluded in a very thing that the second amendment does include the ride and the various other courts have not examined the second amendment whatsoever really and have merely

rubberstamped it without too much analysis. friends of mine, clerk neal and decent than were working not to justice. the libertarian public interest law firm in washington d.c. realized that given the large amount of scholarship on the second amendment, virtually all of it been on the individual right side meant that sooner or later there would need a supreme court case dealing with it. and wouldn't it be better if there were a supreme court case that was structured in a responsible manner and not one of these accidental cases that arise in the context of drug dealers and think rovers and other people who may not even the best position for this very important right. they started putting together a

case with probably be at the cato institute. i've gave me a call one night and we sort of went through what they were thinking of doing and sign on board. but this was definitely not something that the ira invented. again, the book does a very good job pointing out the collective rights point of view. but it misses some sources. i was surprised to not see any reference in the book, for example, who in 1803 spelled out the second amendment as going back to the blackstone construction of the right of self-preservation. other variants will enter scholar writing in 1820 and the

constitution to be an individual right. he ratified the second amendment and not mentioned in the book. his commentaries and also adopting individual models and even the american bar association, not exactly a right-wing pro-gun militia type organization. in 1965 awarded a prize to a fellow who wrote an essay that the individualist model of the second amendment good so we see this as a pedigree that goes well beyond modern day people who may have institutional interest. >> allen has said there's plenty

of history. we could debate that generally. but the core of your objection is justice go you didn't only engage a mess. you mess. he's basically it does not repeat the framers original intent. this is emphatically opinion based on facts. it takes us on a claustrophobic and unpersuasive reading of the text that scrolls wikipedia through the historical background and generally can't take it out of context. tell us more. >> well, of the 64 pages of his majority opinion, to deal with the militias and the other 62 takeovers keep and bear in arms out of order and i would suggest out of context or you sometimes out of context as number tat

consulted dictionaries to prove the turbo score and it looks as we just heard i would suggest i'd not heard the fact that somebody got a price for an essay in 1965, particularly as a powerful constitutional argument for the 200 years before, but i'll try that one on time. i think i just tiscali, the life on the history he leaves out, he says, for example, we looked at word arms in the word they are and lays out a series that to bear arms that is almost inevitably referring to god military militia service. he can articulate the doctrine. there is an individual right,

but like all individual rights is limited. he actually lists some of the limitations. the core of the amendment as they described as protection of hearts and home of the commonly used weapon. the court leads to further consideration that the extent of that right or what those limits are. there are arguments for that approach untethered with the history and the only thing i can say i don't want to leave on the table is to check the footnotes because there's a lot of selective use of some of those stray and sources with some of them footnotes to the book. but again, we are here at the constitution center. the way the constitution has always been made is by the

people arguing about the constitution and what happened with the nra, national rifle association on this issue is in 1977, previously the nra started after the civil war. it was started by former union officers by poor marksmanship and dealt with issues of training in marksmanship and military preparedness and of course eventually spoke for hunters or sportsmen. in 1977 and was called the revolt to cincinnati at the annual meeting of the group, there is kind of a rebellion among the members of the old leadership was pushed out in a much more ideological group was installed in every fashioned itself a constitutional crusade to change the way the supreme court in the country saw the second amendment. it backed a lot of scholarship is another very useful, some of it i've argued is not so good. worked hard to change public

opinion. it worked to change the positions of the government, the justice department changed its position in the second amendment so as i said by the time over the past decade that it was time to go to court, in a sense the apple fell from the tree. it was not that surprising and it was not that controversial when the court ruled as it did in heller. a lot of the liberal scholars shrugged and said what do you expect that this court? a lot of conservative judges and scholars were upset because they said this is the kind of living constitutionalism that they felt they had been fighting. they compared it to roe v. wade, which to them was the highest of insults. so i think again what we sell is over three decades of the campaign to change what was seen as something very different when it began. >> so it is true as michael

suggested, will couldn't criticize the heller decision for being historically unrooted. but i want to focus on the most significant question, which is the possibility of regulation. they have great questions and one of them is the supreme court put some limitation on gun ownership. assault weapons, rocket launchers. justice go you did say some regulations might be okay. do you agree with that statement and michael notes dozens of suits with a vast array of gunshots were nearly on the first two years after heller and the constitutionality of come off in 200 cases become also were upheld in all but two. for those lawyer courts correct in what you think are consistent with the second? >> first of all, those may be misleading because a lot of the criminal cases where someone is charged with having a gun, the

lawyer for is the second amendment claim and of course it's probably not too surprising. sometimes courts get it wrong and sometimes courts get it right. that is true of every right. i've always said the second amendment will disappoint those sites just as the fourth amendment supports both cited as a speech or the religion issue. the fact of the matter is every right has a certain conflict. some activities are simply outside the scope of that rate. and so, at a minimum activity that would not have been a nurse good to be within the people's right to to bear arms historically are those that might fall outside the scope would not be protect it at all another times history rents out and you actually have to see how the concept of a constitutional prize in the modern scenario than there is room for some destruction and we try to weigh

the fundamental interests in having arms for traditional purposes against whatever the regulatory interest might be. in terms of what types of guns you can have a rather arms, these cases, frequently. here is a two holiday. it was not enough simply to declare to the second amendment the individual rights, it became what do we do about handguns? our hand guns protected by the second amendment? but not all speech is protected by the first amendment. terrorist threats or speech. so, the court then walked back at the similar case from the 1930s and have found the test, which is quite useful. if the arms are the kind that would be in common use for traditional lawful purposes,

people can pick to have them for those lawful purposes. if they are not, then they would not be protected. so we don't have rocket propelled grenade. didn't say that are obviously going to be outside. there may be some closer questions. even to the extent that some guns might be appropriate for some content, but not others, those regulations might be appropriate or not as well. for example, there's nothing unusual about teaching a rifle to go hunting with or to a gun range. at the same rifle walking around central part, people might have questions about what's going on. so there are time, place matters for arms. so this is how the cases shakeout, the people litigate

them and we learn on a case-by-case those doctor and what rights. >> michael, one question to ask is the second amendment protects constitutional right. more broadly, i want to ask why should liberals be all that upset about health? fairweather called the individual rights. he same practice most of them have been upheld. >> i don't think the sky is falling. i think that understood rightly, common sense individual gun rights and common sense gun laws and regulations go hand-in-hand and that is what sends the heller and mcdonald's cases and federal courts where judges have

said yes, there is an individual right, but society has a right to protect itself and we will examine these laws to see if there is a reasonable purpose for them and if there's a strong governmental interest in upholding him with some exceptions, which may yet come back for more litigation of the supreme court. some of the gun rights supporters have decried this passion. they have likened it to massive resistance, which was the seven states refusal to follow brown versus board of education. i think that the think that these courts have gotten it right generally speaking when they say you can have reasonable gun rights and gun safety. the crux of those liberal scholars in their voices are quite important because they were at their respective and also because of the man bites dog to have liberal scholars as

reported at the time in the newspapers in "the new york times" and elsewhere. they also have different games about what they talk about is the rate of rebellion. the second amendment and the 14th amendment and the privileges due to his cause to this of go in different directions. i don't know if they pass a unified school, but i will say they believe strongly that the assault weapons and propose before the congress' constitutional. that is in fact what is interesting. if you remember last year, the legislation that was moving through the congress was in background checks and extend them especially to gun shows. and now was supported by upwards of 90% of the public polls. that bipartisan bill, dimension to maybelle had a majority support in the senate bill.

people ask me, well, does this mean the second amendment kilduff reasonable restriction? answer is no because it's pretty plain that would've been constitutional under the second amendment. second second amendment. it is more the filibuster rules of the united states senate that had to do with that in the second amendment. i think issues such as assault weapons and other things are an open question. but even there, the court upheld the legislation and mr.'s gave answers to the "washington post" and certainly he thought it was constitutional. as described last year. so i don't think that the sky is falling. >> what is constitutional? they ask our background shots and the band than assault weapons, can we restrict automatic weapons and for registration of unknown or send

background checks. but her thoughts about the open carry laws of taxes than are you really saying that military style weapons can be kept for the mentally ill. >> but the time remaining. >> i will take some of the easier ones and then get to the other questions at this time. no, i do not believe they should act within a reference at all. that projects are going to be held by the federal court. at least the background checks are performed in a way that doesn't take in doesn't take and i'm due amount of time. those of the appellate. the background check can take years to complete. the computer systems are checked, where people have due process right and the false positives that come back to be

upheld. i don't believe that we can prohibit firearms and common use for traditional, lawful purposes just because we label them assault weapons are they look scary. the fact of the matter is all of these assault weapons typically reach very plain-vanilla arms that are oftentimes much less powerful than guns do not look as menace, but that is almost if you is almost at the look at the functionality of the farms, really dealing oftentimes these types of laws. >> this is very badly misunderstood. the second amendment secures the right to bear arms and going back, justice ginsburg supplied the definition in the heller of what it means to bear arms. two years earlier, justice ginsburg offered her definition of what it means to bear arms in the second amendment.

in this two-way or, dare or care you and your person or a pocket or clothing and armed for the purpose of offense or defense confrontation. justice gilleo said that is what we are going to say to bear arms means. that does not mean that you can bear arms in any fashion that you would like the state can regulate the manner in which the gun for kerry. historically, society thought and courts approved of the idea that people who had their guns were sneaky, up to no good, they want to perhaps take advantage where it is virtuous or normal to open they carry arms and so concealed to carry restrictions were upheld, always with the caveat that the right was not being totally destroyed and in those cases where was destroyed, those laws are struck down. we have a different understanding of society.

virtually every state in the country is quite liberal in the carrying of weapons, but the open carrying of arms is provocative and so even places like texas, texas is obviously not an anti-contraception. the open carrying of guns is not allowed by their loss. again, it is a regulation that goes with the matter which guns are carried and so the ending open carry is that the concert to carry guns for self defense is going be allowed as well. again, it's the state's choice. i know adam winkler has written today, but he has an op-ed in "the l.a. times," a very provocative thing to the more liberal people, no one will do it and then we will be valid the constitution. it's an interesting guy, but he might've been on it. >> michael, what decisions are you most concerned about? criticized as opposed or his decision, striking down an

illinois law, which prohibited the carrying of a loaded weapon outside of the home. you call this a masterpiece of passive aggression that was previously criticized ms in future that might be challenged in the court, including market ammunition. what is the future going to look like and what are you concerned about? >> the post their opinions is interesting because he is the first to first and continuing those criticism from the opinion, good rehash them if they can't do anything about that and then i suggested further than it had to go. the illinois legislature has not rewritten its law so that there's a much more liberalized law in terms of carrying guns in illinois and when you lock into place of business there, there is a decal in the window that tells you whether guns are prohibited or not. i don't know what kinds of laws are going to be at risk.

my concern as i've said this is not so much with an expertise on gun control laws, but concerned about trying to make constitutional doctrine based on a kind of misreading of the rule of original as some in the american constitution. the original intent is obviously very important, but it is one of the factors by which we as a country of decided how to read the constitution and govern ourselves. the country has always evolved and so frequently have been the ways we read these provisions. my concern with the heller regime around down face to the degree that it says the something is traditionally lawful, it must be lawful now to me is very circular. what if it was brand-new? they had muskets and, they don't have muskets now. i want to make sure, i hope

certainly that pushing the center court and applying this constitutional test does not choke off the innovation that can actually solve some of these issues. this year i saw a statistic last week that is really striking. this year there will be more people killed in the united states by guns, 33,000, then by cars. at one b-bravo that is a lot of people and a terrifying statistic. a lot of that is suicide and other things, but there's a lot of people. the really interesting thing is what about cars. cars used to kill many more people. what happened? they make cars safer. they didn't confiscate the cars. they didn't take away people's right to travel or drive. they changed the drinking age. they put in seat belts. they required airbags and change the designs in all these ways

but over time up a lot of controversy, cars got made safer. there are all kinds of ways to make a safer, less likely to be used by the wrong people, less likely to be used by children, less likely to be in the wrong hands, less likely to be used by somebody who's not a law-abiding citizen. one of the examples is the kind of micro-stamping, which marks the boulevard that leads the guns that can be traced back to the owner. that is the kind of thing to look at the indicated. other things will get litigated and i wish the debate in the railroad is as reasonable as the debate we're having here. as you know in texas, the open carry the same right now is running around with military weapons going to fast food restaurants, videotaping themselves and the nra website to announce this and said it was weird and counterproductive.

the nra just apologize for having said that and reprimanded the individual who posted it was weirdly it. so i think there's considerably more extremism and second amendment on the list of the outdated then we might hope. >> there has been a civil debate. i give you the last debate because michael had the first one. other disagree vigorously, you've agreed that reasonable regulations may be consistent with the second amendment, although perhaps not all the details and even complimented us at thurgood marshall of the second amendment. >> you should take your pick to relax. >> the victory lap is well deserved. as the future mostly from the courts or public opinion? to expect more significant litigation or the laws or is the

real fighting congress and the state legislature? >> will be in the congress and other legislative bodies as well as the courts and allow us be both of those forms just as with all of our basic rights. the bill of rights will continue to innovate. but it absolutely is meant to limit the innovation and make sure even the politicians come up with new and creative ways to violate rights, certain principles have to be honored in the second amendment is one of those principles. so laws that impact the way in which this right has traditionally been a misunderstood will be struck down as well as that impact the way that speech rights have been understood and combining concurrent. it is absolute feature, not a bug of our government that we will limit the ability of the government to restrict our rights. it is a free country. i know many people think the

second amendment is a bad idea. justice stevens wrote his first book where he proposed amending the constitution about rewriting the mma to make it look more like what he hoped and justice stevens to speak as much as he wants about that, raise all the money he can spend electing people who would agree with him on that point of view. but at the end of the day, he has to honor the fact that if you don't like it we can change it, but right now the second amendment we should be applying. >> i told you at the beginning that my goal is to bring the best nights of america on all sides of the constitutional state, the constitution center and let you do people make up your mind. it's an honor to hear the scholars. please join me in thanking michael waldman and alan