rapids is at the crossroads of the entire national development movement. we established railroad connections to the east and west coast. connections to major developments all over the united states. all the industry people and stories we have developed here have relevant links to the rest of the united states and the rest of the world. you can watch this and other programs on the history of communities across the country at c-span.org cities tour. this is american history tv, only on c-span3. on american history tv, the national history center hosts a discussion on gun rights and regulations. speaking from the rayburn house office building on capitol hill are historians and a law professor. they delve into the drafting of the second amendment and how it has been interpreted ever since.

host: good morning and welcome. it is a pleasure to welcome you to the briefing. i am karen wolf, the executive andctor at william and mary a professor of history at william and mary. i will be introducing today's speakers and monitoring -- moderating afterwards. we have distributed cards under chairs and the purpose is to facilitate the key one day.

the center is strictly nonpartisan and we are not here to advocate for policies or positions, but to provide historical context to help inform policymakers on the public. we are grateful to the melons foundation for funding the program and to the office of congressman connolly for booking the room. today suspect -- subject is the history of gun rights in america. the complexity of the politics of this subject should not make us shy from historical record. history is, whether we are aware of it or not, the context for every decision we make, whether , or collective political ones such as how and when to engage in conflict. contact --istorical context, we can better appreciate why and how we are

where we are. as a historian i am acutely aware of the juxtaposition of relevance of my field, contemporary americans. early america is foundational to our democracy and often confined to a study of the eastern british colonies and politicians who carried the qualities -- colonies into our nation. history rarely offers a straightforward answer to questions we posed from later and a different vantage. history is not waiting any kitchen cabinet, waiting for us to open the right door to see the past in its fullness. rather the comprehension of the past relies on the preservation

of the historical record, which is often shaped by what is understood to be worth preserving and on our ability to analyze the record which is shaped by what is understood to be worthy of analysis. we can track the progress of legislation to the congressional record. legislation is also a product of individual efforts and collaboration. how are they captured? what is really the history? we understand history using new information and tools. the history of law and legislation is interesting because lawyers and historians view and use the past in

distinct ways with the former by vocation having an instrumental view of the past and we are fortunate to have with us today .aul cornell his first book was a study of and he hasounders subsequently published extensively on the second amendment. articles have appeared in journals such as the william and mary quarterly and he offers a chapter on the right to bear arms in the oxford handbook. is a professor of law at duke and was a marshall scholar at oxford and earned his

jd at harvard. he has published in leading law cited bynd has been the supreme court, the u.s. court of appeals and in congressional testimony. .e begin with darrell darrell: thank you for the introduction and thank you to the national history center for this invitation to speak. i should start with a disclaimer. i am not a historian. i am a lawyer who is interested

in the way history influences .he way legal doctrine develops saul will be better at speaking with authority in detail on the historical regulations but i want to offer a framing for how the supreme court may use history to justify conclusions. the 2008 decision d.c. versus resolvedhe high court a narrow issue, whether the appliedmendment right rights to have and keep arms for personal purposes like self-defense of a home or whether it was a right that was solely related to participation in an organized group like a militia. anler said the right is

individual right to have and keep arms for personal purposes but the late justice scalia also said like most rights, it is not unlimited. a long history of firearm regulation shows the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. justice scalia was quick to observe that quote. there are laws imposing conditions and qualifications on the commercial sale of arms and in his opinion he says there are examples on the list is not exhaustive.

what the limits are has been the subject of litigation for a decade and lower courts. ony have mostly converged what is known as a two-part test. first it asks if the regulation implicates the second amendment at all. does the second amendment cover the manner in question? if it does, that's the end of the case. partrequently this first relies on a valuation of the history of the regulation or pedigree either in specific details or in overall purpose. heller says that concealed carry can be prohibited. justice scalia said this is illustrative of a presumptuously awful prohibition.

prohibitions on concealed carry do not raise the question if there is a long history regulating concealed carry. they suggest machine guns can be prohibited because they fall within the historical prohibition on the possession of the carrying of dangerous and unusual weapons. it is not that these regulations require other justification. these laws are constitutional under the second amendment in the same way prohibitions on categorically constitutional under the first amendment. the second part of the test asks if it burdens the right to bear arms. typically judges apply scrutiny citing howstion

tightly regulation fits purpose. much, isdens too unconstitutional. -- it is unconstitutional. so prohibition on possessing a fire alarm with obliterated serial number is covered with the regulation of the burden is minimal so it can survive a challenge. have indicated they believed the second part of this impermissible and have advocated an approach that relies solely on history and tradition and under that test would be whether there is historical pedigree or analog to decide whether regulation was

constitutional. that could change the type of questions we ask in a second amendment case but as cavanaugh because gun regulations are a reference to history does not mean government lacks flexibility to enact regulations. he says, governments appear to have more flexibility. so what does justice brett kavanaugh mean that history may provide local governments more flexibility? there is a long history of regulation in america and in addition to regulations on types of arms there is regulations on how they can be carried and how they can be stored and licensing regimes. that said, brett kavanaugh is amendment the second

-- as he stated, when legislatures seek to address new weapons that have not , thereonally existed were obviously not be a history of banning them. that doesn't mean the second amendment doesn't apply to them nor does it mean the government is powerless to address the new weapons. reasonthe approach is to by analogy from history and tradition. hypothetical, a there were no commercial airliners in 1791. prohibited thes

carrying of concealed weapons into the cabins of airline -- airplanes. that most of us would consider the inside of a jet plane a system in place. under a conventional second step of the two-step process, that type of regulation might be upheld on the grounds it is dangerous to have guns in a plane. not necessarily historical testimony. we could draw the same conclusion. there are numerous regulations lawg back to english common and extending into american

history into the 18th and 19th centuries that prohibited firearms in places where people tend to congregate. example is thed statute of northampton. exceptionshat with for governor officials, no one into fairs orarms markets under penalty of imprisonment. reasonings could say there is a long-standing practice dating to regulate firearms where people congregate. the cabin of an airplane is a modern version of where people congregate so therefore prohibition on loaded firearms

is presumptively institutional -- constitutional. how bradley you looked at how broadly you look at this is. history is likely to come -- is likely to play a continuing role in litigation whether the courts are keeping the two-part test or adopting what brett kavanaugh advocated, a strict text history of conditioned test and having a good sense of facts and regulations is essential to make informed decisions about jurisprudence. [applause] saul: thank you for coming to this briefing.

i know you have busy lives and we appreciate you taking time away to spend this morning with us. summarize 500 years of ,he history of gun regulation which i am not sure can be done in the time permitted but i will try. when you look at the history of gun regulation, something i have spent a good deal of time of the out is years, what jumps for as long as there have been guns in america, they have been regulated. not only the english who came over, they brought a concept of law that included firearms regulation.

abilityhe limits on the to travel armed and certain areas. -- in certain areas. guns ind not bring your front of a king's ministers or in fairs, markets, or courts. lawe have a common tradition that was carried over and parliament also regulated firearms. themselves and the federal government did as well. the historying with we are dealing with multiple levels of government action. i point this out to say there are many tools and they are available to different levels of government. one of the things that seems so unusual when you look at the debate over firearms policy, it

tends to play out as if the choice was regulation or liberty but what is interesting is there is no liberty without regulation. the ideal of the 18th century was something they called well-regulated liberty. as term is probably not used often now. the closest we have now is ordered liberty. the notion is we fear tierney but also air -- tyranny but also anarchy. we want people to enjoy liberty with the lowest cost for public safety. that is the framework we need to have in mind when talking about the history of gun regulation. if you read the text of the andnd amendment closely,

one -- and it is one that has we useden poured over, grammar as we felt. so. i am sure everyone here could recite the second amendment. it says a well-regulated militia, being necessary for security, the right of the people to keep and bear arms shall not be infringed. who want gunple regulation like the first part better.

the part that gets left out is the middle. security of a free state. thinking about this idea of well-regulated liberty, whatever policies we design, whatever goals we do, whether an expansion of gun rights or gun regulations, both policies have to further the security of a free state. how we interpret this and what promotes security for a free state, that's why we have a political system, but again i want to stress there is not just one liberty issue. there are competing liberty issues. liberty that gun owners claim about the right to keep and bear arms and the liberty of the people to legislate and enact an official laws to govern ourselves. and then a liberty interest we do not hear much about but was essential to early america was

the right to live in a peaceful society and to live in a regime where there is a rule of law, not estate of h -- of nature and violence. framework in mind, what kinds of laws do we see when we go through the long history of gun regulation? there are many regulations under common law. a number deal with where you can carry arms in public. there were statutory regulations. one of the first things any colony were tempted was passed laws about regulating the storage of gunpowder, which caused public safety concerns. some localities passed safe that you cannot have a loaded firearm in a domestic dwelling because it posed danger in case of fire, at

firearm would discharge. so what does that mean? a modern safe storage law is constitutional? is it different because firearms technology has changed and bullets do not work the way muskets worked? the purpose of this briefing is to say there is a long history of gun regulation and interesting things have been tried over the years and we need to be mindful of it. there have been regulations about the militia and not only were you required to purchase firearms, but those arms could be inspected. hewashington had his way, would have private inspection of firearms twice a year as part of preserving a well-regulated militia. are a variety of regulations about the sale, transfer of firearms, particularly as we moved to the

market revolution and the number of types of weapons expands. one area of gun regulation is one of the most ancient ways of achieving public policy goals, taxation. the first federal militia acts was the first unfunded federal mandate. we were required by law to purchase a firearm and if you fail to do so, you could be penalized. it, the greatbout thing about taxation is a policy is it gives you carrots and sticks. so you can encourage save gun -- safe gun ownership.

you could give someone a tax write off her purchasing a safe or put a hack -- put a high tax rate on a potentially unsafe firearm. so taxation gives us a variety of tools to encourage public policies. there were ways of preserving privacy. it is one of the oldest forms of regulating firearms but it receives almost no in nest -- no attention since the new deal. the other point is for most of history until the 20th century, most regulation was done at the local or state level. little federal firearms regulation until modern times

except for regulation of militia. intervention,ment we would not have this industry. another part of history that has is thelatively hidden idea that somehow government and guns are in a collision course. that is a relatively recent problem. for most of history, government and regulation were complementary. if you had to summarize the dominant position in the 18 century it would be that most americans were pro-gun and pro-regulation. the problem today is you have to choose one side or the other but the only way to live in a society with guns is to have a society where there is effective gun regulation.

if you think about examples around the world like israel or switzerland, a lot of guns but very robust regulatory regimes. this idea that only with regulation you actually retrieve -- achieve true liberty, that is the most important take away and there are lots of examples throughout the history. today arept them complicated questions but history provides us interesting examples to think about. thank you. [applause] karen: if anyone is standing, we still have some seats appear. please come down. feel free. there are some over here if you would like to set. so we provided cards for you to write on questions and send them

forward and i will be happy to field them and ask questions of the presenters. my lovely assistant will collect the cards and hand them to me. if you have a card, you can pass them to the end of euro and she will collect them. and she willr row collect them. i cannot believe there are any -- there are not any questions. while you are writing down your start with aill basic question. analogy and history's place in law and how the notion of historical analogy comes to be.

you started talking about the specific indication of historical analogy as significant because we live in a world that is very different than the world of the 18th century. it come to have a legitimate place in jurists prudence -- jurisprudence? >> one is the interpreted of the linguistic level. what do the words mean, or as , the contextual level. how do you understand the words in context? hisice scalia and concurrence says you know what the boundaries are by the regulations that exist. so that is the point with

respect to history, especially bythe space, is being driven a of the majority and heller and then we are at a point trying to figure out and what level of abstraction do we talk about? obviously there were no jetliners in 1791 but there is concern with firearms and crowded areas -- in crowded areas. so the point is if you're going to do this work, this historical analogy work, what is the relevant level of generality at which to make the decision? that is something justices and judges disagree about. karen: >> that is really helpful and interesting. i'm going to go to the cards. question viewfic

about historical use on restricting gun ownership by age. can you speak to that? >> excellent question. raises into questions. if you were to look through statutes about the militia from a colonial period and the american period, you would notice that the militia is composed of white men roughly between the age of 16 and 50 depending on the state. so now, when we tried to make sense of what that means -- one of my favorite parts of militia statutes, particularly in massachusetts and virginia, is the faculty of harvard college are exempted from the militia. arming the harvard faculty would be a dangerous idea, so once again, the wisdom of the founders prevails.

the question is, if government can force you to participate in , does that mean you have a liberty interest, a right to carry that done, or does that mean the government has the right to compel you or prevent you from carrying a gun if you fall outside of a particular age? dell's question about analogy. if we go forward into the 19th century, we find examples of limits on purchase of firearms to minors. we get to this other interesting question, when heller says long-standing, well, where is the metric for constitutional time? when is a short constitutional time? when is a long constitutional time? do you have to go back to the 18th century to demonstrate long-standing? era? war if a particular weapon only became popular in the 20th century and the moment it penetrates the market, does that

mean the clock starts in 1915 for demonstrating something is long-standing? there are a host of issues that have not been fully theorized by either the courts were legal scholars about what some of the key constructs in helle, what they mean and how we would apply them. >> and you should all feel free to ask for additional cards if you want follow-up questions. just wager hand there. -- wavie your hand. waive your hand. kavanaugh's approach to the second amendment has other adherence on the supreme court rental? -- right now? >> i am a terrible court watcher, so i do not know. i suspect, without having any sort of inside knowledge, that perhaps justice thomas would be

a sympathetic to this approach. perhaps justice gorsuch. i have really strong doubts that there are five justices that would go all in on a strict history approach to the second amendment. but i do not think that is the whole game, right? waterct that it is in the in some sense and the shaping the other kinds of questions that get presented to the court. why? because if you know that some of the justices are inclined to be ofptical of some other type test, the briefing is going to look different. the justices can only make decisions on what they see. whether or not you have, you know, five vote for a strict history test doesn't necessarily mean that history won't be influential as a matter of practical supreme court litigation. i say this as a former litigator

but not a supreme court litigator. >> thank you. as you and i were talking about, history is itself a kind of contested terrain. there is information we can find in history. what the sources of the information are and how they can be contextualized are radically different. people are not necessarily trying to pervert the course of truth, but because we can argue about what the sources of the past might mean. so a question for you. i just managed to lose it. moreirst congress spent time debating militias than the second amendment, so how do the courts consider those debates and the relative weight of those debates in their interpretations? >> and other excellent question. it really depends on what your theory ofntial interpreting the constitution is. one of the most interesting things about the heller decision is we had to versions of originally from.

-- originalism. and hejustice scalia's was more concerned about dictionaries and what went on in the antebellum period and using those sources to illuminate the meaning of the second amendment. justin stevens -- justice stevens was about the congress. there are different theories of original is an -- originalism. the scalia version is the one that most originalists in the academy are championing these days. constitutional theories come and go, sort of like fashion but probably less quickly. you are probably good for 20 years wearing originalism to the court. like so many things, there will be a backlash. there will be a different

interpretive modality that will emerge. for the for seeable future, briefs with a good chunk of written in will be anything touching on second amendment or gun issues. in?an i weigh i think it is now pretty clear that heller is a much better decision in terms of its justification if it abandons the originalist premise. right? bring in stuffn from the 19th century or early 20th century or even in the modern era about how people understand rights with respect to guns, it is a much more defensible decision than to say, well, all this discussion about the militia in the 18th century was really about defense against criminals and burglars because it is not in the record. and so, in some sense, justice

scalia, you know, was trying to lines ofdifferent reasoning. one having to do with his originalist commitments, and the other having to do with the belief that the second amendment guns.ly protects personal ownership for personal purposes. these things did not tightly fit together. things changed in 1868. things changed in the 20th century that would have supported the opinion much better. >> thank you. yes, i did forget about that part about turn off your funds. that's all right. it happens to everyone every now and then. follow-up with a slightly different question about localities, actually. your thoughts on state preemption laws. the example cited on the card is pittsburgh. does it stand a chance of an acting local -- enacting local

ordinances and regulations? will they fall before constitutional arguments? >> the second amendment is the supreme law of the land and it is incorporated through the 14th .mendment due process clause if there is a conflict between the second and 14th amendment and a pittsburgh regulation, however the pittsburgh -- it falls. that is just basic constitutional structure. maybe i am not understanding the level we are talking about. if the question is about it a state legislature wants to create more rights than what the second amendment would protect, that is within the domains of what states can do. if states want to say we authorize concealed carry guns everywhere, you do not need a license, they have the authority to do that. but it is not because the second amendment requires it. it is positive law.

>> one of the great joys about working on this issue is you get to appreciate irony. masters the great trope of the historian. the great irony of this debate is when you have about guns and the second amendment, so many things he could have predicted theonger start to play out way you would expect it. conservative constitutional theory, for a very long time, has been very focused on reducing federal power. restoring power to localities and to states. that was the whole driving force behind the new federalism, yet if you look at something like concealed carry reciprocity, you have conservative advocates of gun rights wanting to endow the federal government with powers that would have made barry --dwater just go apoplectic basically have a stroke. so the idea that once upon a time, many, many gun regulations ore done either locally

at the state level, actually moved. it has not been the liberal side of the spectrum that moved, it's the conservative side of the spectrum that moved us away from allowing localities to enact a variety of firearms regulations, which is ironic from historians point of view, the significance of public policy. it's a complicated question. once upon a time, we did have the ability to say localities will do this, states will do this, and the federal government will do that. we have slowly been e-voting local can -- eruoding local control. see second amendment sanctuary counties, people pushing back against national, federal, or state regulation, so it just makes the second amendment endlessly fascinating if you are on the sidelines writing about it. you dies would have to make laws . my heart goes out to you because it is complicated. >> it is the true trope of the

historian. it is complicated, not irony. it is complexity, which is not always of great use when you are trying to make law. ok. i am going to save this question . this is a big question about the politics of legislation here. i am going to go back to this question about security and i am going to rephrase. i apologize to the person whose question this is. i am going to ask for them to come in on this interpretation of security, the emphasis is placed on the second amendment. about howestion security is interpreted and debated with legislation and case law, and whether that is changing over time as well, whose security. collective security, individual security? i andthe professor and ,ur books sort of tried to say

the security is a hook to try to reframe or at least understand what the second amendment is for. when you say what is the second amendment for, people say self-defense. it cannot be that simple, right? the example i always go to is a prisoner that is incarcerated has more rights and indeed maybe even legal rights to defend themselves against an attack in prison, but we do not think of the prisoner as having second amendment rights. unlike other kind of rights in the bill of rights that a prisoner clearly does not shed by simply being incarcerated. there is some separation between just self-defense and the second amendment. that, we haveng to appreciate the fact that, well maybe it is something a little more nuanced like safety. that is the idea we have, a society that permits the private

ownership of firearms but for reasons of safety. we have policy disagreements about what creates an optimal regime of safety. with guns rights proponents for example say more guns in more places leads to ideal safety, and people that want to regulate marketying that a free in the tools of violence does not necessarily lead to optimal outcomes, and therefore, there needs to be some kind of regulatory structure to create optimum safety. in an environment in which there is a constitutional right to firearmspossess personally. that is one way of unpacking maybe what security means. greatin, one of the fascinating things about digging into the history is you begin to see that many of the sort of ways the second amendment plays out in popular culture and popular years in modern america

are almost the mirror image of the historical second amendment. it is not unusual. there are many times where the , and thethe law culture of the constitution do not line up perfectly, but just to give you an example that speaks to this issue of security, you often hear about second amendment remedies or second amendment is a right of revolution, the ultimate check. setting aside that the treason clause of the constitution means taking up arms against the government, the second amendment would have silently repealed the treason clause, which is not a very astute reading of the constitution, the simple fact is founding fathers were perfectly equal to confiscate as many guns as they could from a variety of groups in 18th century america who they believe should not have them including loyalists. grabbers, if you wanted, are the people who wrote your second amendment. how do we make sense of the fact

that the people who wrote our second amendment operably engaged in more widescale gun grabbing of any group up until that point in western history? the only way to make sense of it dealing with modern liberalism, modern libertarianism, modern socialism. we are dealing with a different world, where different concepts and different ways of thinking legal and constitutional questions predominated. that is the real challenge, to actually be able to think in the mindset of an 18th-century lawyer or congressman, and unfortunately, all too often, people who are quick to invoke the second amendment in an almost incantation-like way have not done the hard work to dig into the 18th century context to understand what those words meant. >> going back to this question about analogy and contemporary analogy, so i am going to just

repeat this pattern here. we're asking you to start. it is a question for both of you. but is it the case -- can we n absolutease -- a case that these are rooted in english common law or are there other traditions from which they are derived that might give us a different perspective on the second amendment? while, it is an incredibly important question. the reason why we talk about english history or what is going on in 17th or 18th century england is because heller, in some instances, the right to keep and bear arms, as justice scalia understands it, is a right that comes over from england. theyremise is that when are writing the second amendment in 1791, they are simply encoding a kind of british understanding. now, very quickly, it becomes

apparent that that is not really -- it's hard to do that. why? as james madison identified early on when talking about a completely different constitutional provision, the seventh amendment, he said i am not sure what is the common law that existed in england? our common-law? the common law repealed in our statues? statutes? you have english history in american history, and you know, as justice harlan once said, the business of constitutional decision-making is figuring out what traditions we adopted and what traditions we broke from. we are doing this sort of history analysis, that is really the question. englandthe tradition in was to disarm what they called papists, right?

that is not our tradition, but that is part of the tradition. istrying to sort that out the tough part about doing the meangy, but it does not that it cannot be done. it just means it is hard. >> isn't part of the story as well the extent to which the founders understood an english common law tradition? >> i think it raises a very important point, because one way of reframing heller, probably a much better way than they actually did, was was the second amendment intended to elevate the common-law right of self-defense to a constitutional provision? the general consensus among scholars is that is absolutely not what the second amendment was about. it was not mean firmly entrenched in american law.

it clearly was. the second amendment was about a different constitutional issue that had to do with federalism, militias, and had to do with the fact that in order to have the kind of militia the founders wanted, you had to have a well armed and well regulated population with access to firearms. another fascinating thing about how we are knowledge i from the past, the main goal of english firearms policy before the glorious revolution was basically to keep guns out of the hands of the lower class. there were very strict property requirements that prevented firearms.m owning the main goal of early american firearms policy is to encourage americans to buy the guns that the government wants them to do. because the big problem -- americans are reasonably well armed compared to their english brethren but woefully under armed compared to get you of a universal well-regulated militia. if you are a farmer, you do not need a bayonet to get a turkey on the table.

you do not need a musket. you want a light fouling piece or hunting musket. our problem, where we have a surfeit -- over 300 million guns in america -- we are constantly trying to figure out how we analogize from a society where there was guns scarcity buttively speaking, relative guns scarcity compared to what we have today, how do we analogize anything they did when we live in a society where the dynamics and realities of firearms are so radically different? it is not to say that, you know -- i think it is an error to say we can only protect muskets because that's what they did. i am saying that technology changes, but so do the social, economic contexts in which technology functions. and one of the things that we have not fleshed out is how do we re-create some of the kinds of mechanisms of safety that were in,? because -- were informal because people were living in close-knit communities?

ands teaching at william mary and i was talking to one of the firearms reenactors who explained to me i would have known everyone in town. i would have had to work on their muskets because they needed constant repair. on think about buying a gun the internet. how do we analogize from the world of the local gunsmith to the world where you can buy it on an online website? the great thing about being a historian is i can frame the problem. i do not have to solve it for you. that is why they pay us remarkably modest bucks at the end of the day. that is in essence one of the major problems. >> suggest continuing on this question of contextualizing, i want to ask you a very specific question about infringed and abridged. and how those two words differ. whether there was a historical context to that or whether we

need concern ourselves with our contemporary conception of the distinction between those two words. >> it depends on whether you think we are doing a linguistic isrcise where the meaning interchangeable. you know, you could say in fringed means to violate. youer you have infringed or have not. or you could think of it as some kind of spectrum. that is an infringement. linguistict a good account that i have seen so far about which way to interpret that. so, between infringed and abridged, i am not sure how much -- i am not sure how much work you can do with that kind of thing. lots of times, they say certain .ights shall not be questioned

i do not know what that means. in this system of judicial review where judges get to interpret the constitution, shall not be questioned or ought not be questioned, i don't know what that means. you can press really hard on that sort of linguistic nuance, but i am not sure. >> there is one thing that is very clear. i wholeheartedly agree. the first amendment talks in a language of abridgment. the second amendment talks about the language of infringement. >> the specific question is whether they are individual or collective. >> i think the more important question is the first amendment has this idea that you can diminish something without crossing the threshold of destroying it. the second amendment has this very different kind of sense that there is some point at which you cross the threshold in which you have undermined the nature of the right. but what you do with that i think is still up for debate. >> here is a specific question

about -- very, very briefly. [laughter] >> takes one to no one. this is about the long history of gun regulation in the 20th century and how gun regulation has changed in the 20th century into sentences. >> the federal government. the new deal. congress clause. >> you cannot one more sentence. ,> the major transformation is until the 20th century, with the exception of militia statutes, the commerce clause is not the great engine of regulating anything, and that would include guns. >> did you want to add to that? >> no. >> i am going to wrap up with a question for you in just a second. but there is a question here for historicals about

analogues of the current trend, it has itself identification by gun ownership, identifying as a gun owner, having gun ownership the a sense of one's identity. ,hether that is 21st century kind of phenomenon, and how significant that is in three sentences. >> thank you. inhink it is very clear that the 18th century, firearms are utilitarian. they are a tool. people know about them, need them, use them. they may have a powderhorn they carved in an elaborate way for some sort of artistic quality. people do not identify themselves the way modern so-called super gun owners -- people own over 15 guns. this is who i am. this is what defines me. this is the thing that makes me an american. this is how i define my sense of self and society. it simply was not part of the

way guns -- they are not advertised the way they are in modern america. you do not get your man card the way you build and ar-15. somebody has firefox and i should go down to the gunsmith and get a new gun. analogize to the weaponry early in the -- common in the early modern. . early modern period. you will see an extraordinary collection of sorts, broadsword, and all other things what has a longer history. >> in terms of the state and military function of the state, all kinds. parading, all kinds of symbolic -- but i am thinking more in the sense of having this done in my house is key to understanding who i am as an american. >> what about the english nobility and guarding castles and so on with extraordinary weaponry? >> of course, the right to be able to carry an arm in public

is a privilege of rank in english society. they are one of the few people exempted out of the statute of northampton prohibition. they are allowed to carry weapons suitable to their condition allowed by law. >> i have one final question for darrell, which is to ask you to do some future casting for us. we have been talking about the history -- >> i gave that up in 2016. [laughter] >> but you know, some of what you have said suggests that is going tonalogy have a significant role going forward, particularly in this legislation and legal realm. do you want to say anything more about how significant you think that will be, whether that will grow and become more intensive? >> it could. i have a feeling that the history of the second amendment and the regulations will end up

finding their way about shading whatmight otherwise be most the golf scholars think is a kind of conventional approach to second amendment adjudication. there is always these coverage questions. are we even dealing with a constitutional issue? not every kind of speech is first amendment speech. even if it is first amendment speech, it's not protected exactly the same way everywhere that such speech occurs. so it is going to, you know, even if we adopt those, you know, those sort of baseline run-of-the-mill constitution decision-making structures, the history of think is going to influence how both strokes of this piston operate. the other thing i will add is -- this is what we keep dancing around. the issue about the historical materials is they do not present their own analogical bases. there is a jurisprudential

ruleative, which is like a of relevance. a crowdedy that market is like a plane if what you think is relevant is the fear that people will be harmed and close spaces, but if you say, no, the relevant material between that is you go to a fair to entertain yourself and you get on a plane to travel analogye, then the breaks down. and there was nothing in the materials himself that tell you which way to jump. that is what the judge does. >> exactly. you fortorian, i thank it essentially saying it is complicated. thank you. [applause] >> good job. >> thank you for coming out. go forth and legislate. [laughter]

>> this is american history tv where each weekend we feature 48 hours of program exploring our nation's past. for more information, checkout c-span.org/history. >> each week american artifacts , takes you to museums and historic places to learn about american history. next u.s. army medical , department museum director george wunderlich stares stories of army medics in time of war. he talks about a nurse killed in vietnam, a world war ii dentist who single-handedly held at the japanese so the hospital could be evacuated, and the first american world war i casualty in -- an army doctor. >> welcome to the united states army medical department museum here at fort sam houston, texas. today, i wou