the mission. it is still the center of almost all the activity in san luis obispo. many free concerts in the plaza every friday night, and thousands of people attend many festivals. it is the center of our town. obispo, california, is one of the many cities we have toward to explore the american story. for more on our visit to san luis obispo and other cities, go to c-span.org/cities tour. you are watching american history tv, all weekend, every weekend on c-span3. >> up next on american history tv, the national history center hosts a discussion on gun rights and regulations. speaking from the rayburn building on capitol hill, they

delve into the drafting of the u.s. constitution's second amendment and how it has been interpreted since. this is about an hour. >> good morning and welcome. it is a pleasure to welcome you to this briefing from the national history center. i am a professor of history at william and mary and i will be introducing today's speakers and q&atoring -- moderating the . we have distributed cards on your chairs and the purpose is to facilitate the q and a. jeff will collect those cards for any questions you have, and i will collate the cards and facilitate the discussion with the speakers. we are looking forward to a very valuable hour of presentation and discussion. this briefing is part of an ongoing series sponsored by the national history center bringing

attention to issues confronted by congress and the nation. nonpartisantion is and the purpose is not to advocate for positions that help and form context for the public. we are grateful to the mellon foundation for funding this program and to the office of cop -- mr. connelly for booking this room. the history of gun rights and regulations, the depth and complexity of politics on these subjects should not make us shy on the historical record. the contacts for every decision we take, whether individual daily ones such as assumptions that trains will run on time or not, based on our historical experience or collective political one such as when and how to engage in conflict. elevating historical context to

the explicit we can better appreciate why and how we are where we are. as a historian of the 18th century, i am acutely aware of the sharp juxtaposition of the rela pence -- relevance of my field to modern america. it is often confined to a study of the eastern british colonies and politicians who carried those into our nation. the wider continental earlier america shows a foundational but more challenging picture of however nation emerged. astory rarely offers straightforward answer to questions we pose from later and typically a very different vantage. to paraphrase a great haitian scholar, history is not waiting in a kitchen cabinet, waiting for us to open the right door and voila, we can see the past

and its fullness. rather, our comprehension of the past lies on preservation of the historical record which is often shaped by what is understood to be worth recording and preserving, and on our ability to analyze that record, which is often shaped by what is to -- worthy of analysis. we can track the process of legislation through the congressional record and by records -- records contained by offices and committees. you know that legislation is also the project of innumerable individual efforts. how are those captured? what is the history? we do not so much revise history as understand it a fresh, using new information, tools, and perspective. as edward ayres likes to say, i am a fan of revisionist history like i am a fan of ridges and --

revisionist medicine. it is a particularly interesting case because lawyers view and use the past and distinct ways, with the former by vocation having an instrumental view of the past. and a historian of the law. saul cornell earned his phd at the university of pennsylvania, his first book was a study of the under -- the other founders, anti-federalist and the dissension tradition in america. he published extensively on the second amendment and the history of gun regulation, including his 2006 book, a well regulated militia. his articles have appeared in leading journals such as the , william and mary quarterly and he offers a chapter on the right to bear arms in the oxford handbook. darrell miller 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 reviews and has been cited by the supreme court, the u.s. court of appeals and in congressional testimony. we begin with darrell. as he noted, his work provide some of the historical framing for the work. 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 the way legal doctrine develops. professor cornell, 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 heller, the high court resolved a narrow issue, whether the second amendment right applied 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.

heller said the right is an 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. though we do not undertake an exhaustive historical analysis today of the full scope of the second amendment, -- second amendment, nothing should cast doubt on the long-standing prohibitions of firearms by felons and the mentally ill or caring them into places like schools and government buildings or 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 in the lower courts. the courts have mostly converged on 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. and frequently this first part relies on some evaluation 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 lawful historical 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 extortion is categorically constitutional under the first amendment. the second part of the test asks if it burdens the right to bear arms.

this is a protection question. typically judges apply scrutiny to this question citing how tightly regulation fits purpose. if it burdens too much, is unconstitutional. -- it is unconstitutional. so prohibition on possessing a fire alarm with obliterated serial numbers is covered with the regulation of the burden is minimal so it can survive a challenge. some judges have indicated they believed the second part of this test is impermissible and have advocated an approach that relies solely on history and tradition and under that test

, the lodestar 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 justice cavanaugh said just 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 clear that the second amendment -- as he stated, when legislatures seek to address new weapons that have not traditionally existed, there will 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. rather the approach is to reason by analogy from history and tradition. so to give you a hypothetical, but more concrete example, there

were no commercial airliners in 1791. in 1961 congress prohibited the carrying of concealed weapons into the cabins of a commercial aircraft. that 50 years as a long time to be a long-standing and therefore constitutional, but i wager most of us would consider the inside of a jet plane a sensitive 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. there would be evidence about the dangers, other types of expert testimony. but not necessarily historical testimony. if we were to we could draw the use the justices approach same , conclusion. there are numerous regulations going back to english common law

and extending into american history into the 18th and 19th centuries that prohibited firearms in places where people tend to congregate. like in fairs, markets, and other places of amusement. a commonly cited example is the statute of northampton. it stated that with exceptions for government officials, no one could go with arms into fairs or markets under penalty of imprisonment. reasoning from analogies to history, you could stay -- say there is a long-standing practice dating back to them 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 constitutional. broadly orhow narrowly you look at the analogy is key to this interpretation. that kind of judgment is outside of the scope of my comments here. it is just to say that history is likely to continue to play a significant role in the second amendment litigation. whether the courts are keeping the two-part test or adopting what brett kavanaugh advocated, a strict text history of tradition 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. i have to summarize 500 years of the history of gun regulation, with lucidity, wit, and concision. and i'm not sure lin-manuel 500nda could wrap -- rap years of gun regulation, but i will not try, i will do it in a narrative form. when you look at the history of gun regulation, something i have spent a good deal of time of the last 20 years, what jumps out is 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.

one is the limits on the ability to travel armed and certain areas. -- in certain areas. in some places you could analogize them to sensitive places, you could not bring your guns in front of a king's ministers or in fairs, markets, or courts. which could be analogized to populate his -- to populated areas. so we have a common law tradition that was carried over and parliament also regulated firearms. in the colonies themselves and the federal government did as well. so when dealing with the history 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. we need to keep that in mind. 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. the term is probably not used as often now. the closest we have now is a great phrase justice cardoza coined, ordered liberty. the notion is we fear tierney but also air -- tyranny but also anarchy. so we created well-regulated society, where everyone can 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 second amendment closely, and

there are few techs that have been poured over as closely. it's one of the ferry few -- had a grammatical filing and grammarians gave the absolutes.son in you don't see that happen often. we used grammar as we felt. toused commas and colons fulfill our existential needs. i am sure everyone here could recite the second amendment. i will not make you do it. it says a well-regulated militia, being necessary for security, the right of the people to keep and bear arms shall not be infringed. generally people who want gun regulation like the first part better.

the people committed to gun rights like the second part 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 have to legislate and enact beneficial 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 a rule where a state of nature and violence predominates. with that 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 or town did was to pass laws about regulation of the storage of gunpowder, which cause public safety concerns. some localities passed safe storage laws that you cannot have a loaded firearm in a domestic dwelling because it

posed danger in case of fire, at firearm would discharge. so how do we analogize that? does that mean a lot are in safe storage law is constitutional? is it different because firearms technology has changed and bullets do not work the way muskets worked? these are issues that require fleshing out, but the purpose of this briefing is to say there's a long history of gun regulation and interesting things have been tried over the years, and we need to be mindful of them. there have been regulations about the militia and not only were you required to purchase firearms, but those arms could be inspected. if george washington had his way, he would have private inspection of firearms twice a year as part of preserving a well-regulated militia. there 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 underutilized and lee central way we think about it, but in some ways is the most ancient way 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's an analog of the affordable care act, 18th-century style. if you think about it, the great thing about taxation is a policy is it gives you carrots and sticks.

you can encourage safe gun ownership. you could give someone a tax write off her purchasing a safe -- a higher tax on a weapon that is more potentially dangerous if it's in the civilian population. i would encourage you to think about taxation, because it gives us a whole variety of tools to encourage public policy, there are ways of preserving privacy because we all file our taxes. you can provide incentives. and it's one of the oldest forms of regulating firearms. i want to draw your attention but it receives almost no attention since the new deal. and the imposition of certain taxes on machine guns and other weapons during that period of history. the other point i will make is that through most of our history , up until the 20th century,

most regulation was done at the local or state level. there was little federal firearms regulation until modern times except for regulation of militia. and except for encouragements of the firearm industry. without government intervention, we would not have this industry. is because the government put money into the firearms industry that america has one of the greatest firearm industries in the world. another part of history that has been relatively hidden is the 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 achieve true liberty. that is the most important take away and there are lots of examples throughout the history. how we analogize them and adapt them to today are complicated questions and we will not solve those today, but history provides us a lot of interesting examples to think about. and q. [applause] -- thank you. [applause] karen: if anyone is standing, we still have some seats up here. i see at least two here, and two in the middle, if you would like

to sit. for said, we provided cards you to write down any questions and you can send them forward. i will be happy to field those 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 your row. and i can't believe there are no questions, that would be odd. while you are pondering this, and i hope all you are writing voluminous questions on your cards and while jeff is collecting them, i'm going to start with what might seem like a basic question. interested in this question about analogy, and the history

of history's place in law, and the notion of historical analogy coming 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. how does it come to have a legitimate place in jurisprudence? it's an excellent question and there are a couple of answers. one is the interpreted of whichnt of original-ism, focuses on history at the linguistic level. what do the words mean. or, as heller indicates, the contextual level. how do you understand the words in context? justice scalia and his concurrence says you know what

the boundaries of the second amendment by the regulations that exist. withat is the endpoint respect to history, especially in this space. it is being driven by a therinal commitment of majority in heller and mcdonald. and we are at the point where we are trying to figure out, at 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 helpful and interesting.

i have at least 10 follow-up questions, but i'm going to go to the cards. you, saul,uestion to about historical views on restricting gun ownership by age. can you speak to that? saul: an excellent question. raises the analogy issue and an empirical question. 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. i think we can get behind the idea that arming the harvard faculty would be a dangerous

idea. once again the wisdom of the founders prevails. the question is, if government can force you to participate in the militia, does that mean you have a liberty interest, a right to carry that gun? 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? we get back to darrell'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? civil war era? 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 or legal scholars about what some of the whatonstructs in heller , 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 waive your hand. not to be a ping-pong, but i am gonna go back to darrell. is there any indication to kavanaugh's approach to the second amendment has other adherence on the supreme court 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? the fact that it is in the water in some sense ends up 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 skeptical of some other type of 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. and that is not because people are necessarily trying to pervert the course of truth, but because we can argue about what the sources of the past might mean. saul, a question for you. i just managed to lose it. the first congress spent more time, the questioner asserts debating militias than the , second amendment, so how do the courts consider those debates and the relative weight of those debates in their interpretations? >> another excellent question. it really depends on what your jurisprudential theory of interpreting the constitution is. one of the most interesting

things about the heller decision is we had to versions of -- two versions of original-ism. we had justice scalia's and he 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. justice stevens was drilling into what they were arguing about during the congress. there are different theories of original-ism, 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 foreseeable future, briefs with a good chunk of original-ism will be written in anything touching on second amendment or gun issues. >> can i weigh in? 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? if you say i can bring in stuff 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 meld two different lines of reasoning. one having to do with his originalist commitments, and the other having to do with the belief that the second amendment actually protects guns. 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 phones. 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. particularly with localities,

the example cited on the card is pittsburgh does it stand a , chance of 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 amendment 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. now, maybe i am not understanding the level we are talking about. if the question is about it a -- if 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. irony is the great master 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 no longer start to play out the way you would expect it. conservative constitutional theory, for a very long time, has been very focused on reducing federal power. and 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 goldwater just go apoplectic -- basically have a stroke. so the idea that once upon a

time, many, many gun regulations were done either locally or 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 eroding local control. interestingly, we 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 guys who have to make laws,

my hearts go out to you, because it's 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'm 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 comment on this interpretation of security, the emphasis is placed on the second amendment. and the question about how 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?

>> as the professor and i and -- in our 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 moral 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. so understanding that, we have 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 guns saying that a free market 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 actually possess firearms personally. that is one way of unpacking maybe what security means. >> again, one of the great 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 history, the law, and the 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 that the founding fathers were perfectly able and eager 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. the real gun 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, probably engaged in more widescale gun grabbing of any group up until that point in western history? the only way to make sense of it is to realize we are dealing ideology, it is not modern liberalism, modern libertarianism, modern socialism. we are dealing with a different world, where different concepts and different ways of thinking about 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 make an absolute 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. the premise is that when they 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? because 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 statutes? we end up with this mishmash, we have english history and as justicestory, and harlan once said, the business of constitutional decision-making is figuring out what traditions we adopted and what traditions we broke from. and so, when we are doing this sort of history analysis, that is really the question. i mean, the tradition in england

was to disarm what they called papists, right? that is not our tradition, but that is part of the tradition. so trying to sort that out is the tough part about doing the analogy, but it does not mean that it cannot be done. it just means it is hard. >> can i ask a follow-up for both of you? isn't part of the story as well the extent to which the founders understood an english common law tradition? or in fact the extent to which there was 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 does not mean it was not

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 analogize 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 people from owning firearms. 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 the idea 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 relatively speaking, but 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 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 informal, because people were living in close-knit communities? i was teaching at william and 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. you think about buying a gun on 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. >> 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 exercise where the meaning is interchangeable. you know, you could say in -- infringed means the same thing as to violate. that's one of the definitions. it could be a binary, on off, you've infringed or you haven't. or you could think of it as the , there is not a good linguistic account that i have seen so far about which way to interpret that. and 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 rights 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 in two sentences. >> the federal government. the new deal. commerce clause. >> you can have 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

saul that is about historical analogues of the current trend, the way it has itself identification by gun ownership, identifying as a gun owner, having gun ownership the a sense of one's identity. whether that is 21st century, kind of phenomenon, and how significant that is in three sentences. >> thank you. i think it is very clear that in 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 in 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 -- in the same way when you an ar-15. somebody has firefox and i should go down to the gunsmith and get a new gun. >> you cannot analogize to the weaponry early in the -- common in the early modern. . -- in the 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 of rituals. parading, all kinds of symbolic -- but i am thinking more in the sense of having this gun 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 history by analogy is going to 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 what might otherwise be what most legal 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 imperative, which is like a rule of relevance. you can say that a crowded market is like a plane if what you think is relevant is the fear that people will be harmed in 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 somewhere, then the analogy breaks down. and there was nothing in the materials themselves that tell you which way to jump. that is what the judge does. >> exactly. as a historian, i thank you for essentially saying it is complicated. thank you. [applause] >> good job. >> thank you for coming out.

go forth and legislate. [laughter] >> c-span cities tour is on the road, exploring the american story. with the help of our charter spectrum partners, this weekend we take you to california's central coast region, and the city of san leah biscoe -- san milesbispo, located 10 inland from the pacific. ♪ this is mission san luis obispo, founded in 1772. >> we have a connection to this land, it's in our dna, doesn't change. most important things about the arrival of the

railroad was that it opened up the central coast to the rest of the world. ringing] watch c-span cities tour of san luis obispo california, today at 5:00, eastern, on book tv and sunday at 2:00 on american history tv on c-span3, working with our cable affiliates as we explore the american story. once td was three giant networks and a government supported service called pbs, in 1979, a small network with an unusual name rolled out a big decideet viewers that -- what's important to them. sees and opened the door to washington policymaking for all bringingr -- to see, unfiltered content from congress, in an age of power to the people, this was people power. in the 40 years since, the

landscape is change, broadcasting has given away to narrowcasting and youtube stars are a thing. c-span's big idea is more relevant today than ever. government money does not support c-span, it's funded as a public service by yours -- your cable and satellite provider. c-span is your unfiltered view of government, so you can make up your own mind. >> this weekend, science writer to tell you holt gives a talk women engineers recruited in the 1940's and 1950's to work at the jet propulsion laboratory and pasadena, california. here's a preview. 1958 thedecember 31, group assembled to launch explorer i. women who were

part of this lunch but none more important than a woman named harbo barbara paulson. she is the one responsible for calculating the trajectory of the satellite. so, to do this, she is sitting at a light table with paper and pencil. she's doing this all by hand. and standing over shoulder are richard feynman, the famous physicist, and lee -- the president of cal tech. and everyone in the room is waiting on her calculations to find out if this mission would be a success. when she calculates that, yes, explorer i has made it, the room erupts in celebration. it is an incredible moment. it is also the birth of nasa. after explorer i, everything changes. the women leave military design behind and are now focused on space. the rockerre about

girls recruited in the 1940's and 1950's to work at the jet propulsion laboratory this sunday at 9 p.m. eastern here on american history tv. u.s.g world war ii, the marine corps recruited navajo indians to create a code based on their line was to help the military secretly communicate operational plans. next in a series of interviews, coder navajo doe -- talker samuel jesse smith talked about his early life conducted between 2004 and 2006 the interviews took place at his home on the navajo national tribal lands in arizona and on the pacific islands where he served. mr. smith reflects on his assignment with the fourth marine division transmitting messages for general clifton b. cates. he talked about his experience returning to the battlefield 60 years later. first we heard