titled gunfight, the battle over the right to bear arms in america. after, that a conversation on the origins of the national rifle association. >> american history tv on c-span 3, exploring the people and events that tell the american story every weekend. coming up this weekend, saturday at 6 pm eastern on the civil war. the 1863 richmond bread riots, where hundreds of poor and working class women protest inflation, and the scarcity of food. and sunday at 4 pm eastern, four films from the 1940s and 50s profiling the auto, dairy, restaurant, and airline industries, negatively affected today by the coronavirus pandemic. and it a pm eastern on the presidency, the nixon administration's native american government reforms, the restoration of indian lands, and a new era of self government. exploring the american story, watch american history tv this weekend on c-span three.

now, a conversation on the history of gun regulation and how the second amendment has been interpreted over the centuries. we will hear from a historian, and a law professor in this discussion from the national history center. >> good morning and welcome. it is a pleasure to welcome you to this briefing hosted by the national history center. i'm karen wolf, the executive director of the institute of early american history and culture at william and mary, and also a professor of history at william and mary. i will be introducing today's speakers and moderating the cuban afterwards. please note that we have distributed cards. they are on your chairs. the purpose is to facilitate the q&a. jeff is standing by. there is. jeff he will collect those cards for any questions that you have and then i will managed to collate the cards and facilitate the discussion

with the speakers. we are looking forward to be very valuable hour of presentation and discussion. this briefing is part of an ongoing series sponsored by the national history center that brings historical perspective to issues confronting congress and the nation. the center is strictly nonpartisan, and is, such the purpose of the briefing is not to advocate for any particular policies or public positions, but to provide historical context to help inform policymakers and the public, as ever, we are grateful to the foundation for funding this program and to the office of congressman connolly for booking the room. today's subject is the history of gun rights and regulations in america. the depth and complexity of the politics of these or any subject should not make us shy from the historical record. history is, whether we are aware of it or not, the context 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 ones such as win and how to engage in conflict. elevating historical context to the explicit, asking what has been the circumstances that give rise to the current situation, we can better appreciate why and how we are where we are. as a historian of the 18th century, i'm acutely aware of the sharp juxtaposition of the relevance of my field for contemporary americans. early america is both foundational to our democracy, and yet often confined to a study of the eastern british colonies and the politicians who carry those colonies into our nation. the wider continental early america, shows an equally foundational but complex and challenging picture of how our great nation emerged. history offers, rarely offers, i will try that again. history rarely offers a straightforward answer to questions repose from later, and typically a different vantage. to paraphrase the great haitian

scholar, history is not waiting in a kitchen cabinets, waiting for us to open the right door. and voila, we can see the past in all its fullness. rather, our comprehension of the past relies on the preservation of the historical record, which is often shaped by what is understood to be worth recording and then preserving, and then on our ability to analyze that record, which is often shaped by what is understood to be worthy of analysis. we can, for example, track the progress of legislation at the congressional record and also to records retained by the offices of members and committees. but you know that legislation is also the product of innumerable individual efforts, energy, expertise, collaboration. how are those captured? that is the history. we do not so much revise history as we understand it a fresh using new information,

new tools, new perspectives. and as the great american historian edward airs likes to say, i'm a fan of revisionist history just as i am a fan of revisionist medicine. the history of law and legislation is interesting, in part because lawyers and historians view and use the past in distinct ways. the former, by vocation, having an instrumental view of the past. we are fortunate today to have with us both a historically minded legal scholar and a historian of the law. saul cornell is paul in diane gone through chair at fordham university. he earned his ph.d. at the university of pennsylvania. his first book was a study of the other founders, anti-federalism and the dissenting tradition in america, 1788 to 1828. he has published extensively on the second amendment in history of gun regulation, including his 2006 book, a well regulated militia, the founding fathers and the origins of gun control. his articles have appeared in

leading journals such as the william and mary quarterly and yale law journal. he authored the chapter on the right to bear arms in the oxford handbook of the u.s. constitution. daryl miller is a professor of law at duke university school of law. he was a martial scholar at oxford university and earned his j.d. at harvard law school in 2001. with joseph blocker, he is the author of the positive second amendment, writes, regulation, and the future of power. he has published in leading law reviews like yale law journal and the university of chicago law review, and has been set up by the supreme court of the united states, united states court of appeals, district courts, and congressional testimony and legal briefs. we will begin this morning with daryl as we noted his work provides the framing for this work that's all does. i >> thank you so much for that

introduction. thanks to the national history center for this invitation to speak to you. i should start with a disclaimer. i am not a historian. i am a legal academic, a lawyer. i am interested in the way history influences the way legal doctrine develops. professor cornell saw will be much better at speaking with authority and detail on the historical regulations. instead, i want to offer a framing for you about how the supreme court does and may use history to justify its conclusions. in the 2008 decision, district of columbia versus hell, or the court resolved one important but narrow issue. that issue was whether the second amendment right to keep and bear arms applied to rights

to have and keep them armed for personal purposes like self-defense in the home, or whether it was a right that was solely related to participation in an organized group like a militia. in a five four decision, heller said the right is an individual right to have and keep arms for personal purposes. but the late justice antonin scalia who wrote the heller opinion also express the road, like most rights, the right secured by the second amendment is not unlimited. the long history of firearm regulation, he said, 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 note that quote did not undertake exhaustive historical analysis, the full scope of the second amendment, nothing can be taken to cast doubt on long-standing approaches on possession of firearms by felons, the mentally ill, or

laws preventing the carrying of firearms insensitive places like schools and government buildings, or qualifications on the commercial sale of arms. his opinion in footnote 26 says, these examples he had just offered war that. examples. our list does not report to be exhaustive. and what the limits on the second amendment are and where to find them has been the subject of litigation now for a decade in the lower courts. the courts have mostly converged on what is known as a two part test. this to park test asks if the regulation influence the second amendment at all. does the second amendment cover the matter in question? if it doesn't, theoretically, that's the end of the case. frequently, this first part of the two part test relies on some evaluation of the history of the regulation and its pedigree, either in specific details are as often as purpose. for example, heller says definitively, a concealed carry

can be prohibited. in fact, justice goglia used conceal carrie prohibitions as illustrative of a presumptive lawful historical prohibition, saying for example, the majority of the 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the second amendment or state analogs. therefore, according to prohibitions they don't raise the question at all because there is a long history of regulating concealed carry. heller suggests that machine guns can be prohibited, because machine guns fall within a historical prohibition on the position or carrying of dangerous and unusual weapons. it's not that these regulations on concealed carry or machine guns require some other kind of justification to support them. these laws are just categorically constitutional under the second amendment to the same way that prohibitions on extortion or securities

fraud or categorically constitutional under the first amendment. if the second amendment covers that, the second part of the test asks if the regulation impermissibly burdens the right to keep and bear arms. typically, judges apply some means and scrutiny to this protection question, examining the purpose of the legislation and how tightly the regulation fits its stated purpose. if the regulation burdens too much course economic activity, then it is unconstitutional. if the burdens are minor, the regulation can stand. prohibition on possessing a firearm with obliterated serial numbers, however, has been held to be constitutional. it covers the second amendment. but the regulation is so minimal that it can survive the challenge. some judges, brett kavanaugh among, them have said the second part of this two part test, the balancing of the raid

against the regulation, is impermissible, and have advocated a approach that would rely solely on text history and tradition. under that, the lone star would be whether there is a historical pedigree, or failing, that a historically analog to decide whether a regulation was constitutional. that could change the type of questions that we might ask in the second amendment. but as justice kavanaugh himself said in the opinion, that he wrote as a d.c. circuit court judge, just because gun regulations are assessed by reference to history and tradition does not mean that governments lack flexibility and power to enact gun regulations. indeed, according to the now justice, he says quote, governments appear to have more flexibility with the historical test then with other kinds of tests. so what does justice kavanaugh mean that history may provide local governments more flexibility? as professor cornell will note,

there is a long history of regulation in america. in addition to types of law that people can invest regulations, on how they could be carried, where they could be stored, how they could be stored, as well as various licensing regimes. that, said justice kavanaugh is clear in his opinion that the second amendment does not only permit those regulations that exist only in 1791 anymore than the second amendment only protects those kinds of firearms that existed in 1791. as he stated, when legislatures seek to address new weapons that have not traditionally existed or to oppose new regulations, if those conditions have not existed, they are obviously will not be a history or tradition of banning such weapons were opposing such regulations. that does not mean the second moment does not apply to these weapons were in the circumstances. nor does it mean that the government is powerless to address these new weapons or modern circumstances. rather, in such cases, the

proper interpretive approaches to reason by analogy from history and tradition. to give a hypothetical more concrete example, there were no commercial airliners in the 17 nineties. indeed, it was only in the 1960s that congress prohibited the carrying of concealed weapons into the cabins of a commercial aircraft. 50 years is a long time to be long-standing and therefore presumptively constitutional but even if it wasn't, i would wager that most of us would consider a jet flight a sensitive place. under a conventional second step of the two-step process, that kind of regulation may be upheld on the grounds that it's dangerous to have guns on a plane. there would be evidence about the danger, other kinds of testimony. if instead, we use justice

kavanaugh's approach to analogize from history, you might come to the same conclusion, albeit for different reasons. >>, first there's numerous regulations going back to the english common law of the late 19th and early, and then extending into early american history boats in the 18th, 19, and 20th century. that prohibited firearms in places where people tend to congregate, like unfair, as markets, and other places. a commonly cited example is the statute of northampton, an english regulation from the rain of edward the third, which stated that, with exceptions for government officials quote, no man great or small could go with arms in fares, markets, nor in the presence of justices or other ministers. that was under penalty of imprisonment. reasoning from analogies to history say there is a

long-standing practice dating back to our english common law for bearers of regulating firearms in places where people congregate in confined quarters. the cabin of an airplane is a modern version of the kind of place that people congregate in confined quarters. there, for a prohibition on loaded firearms in the cabins of planes are presumptively constitutional as well. of course, how broadly or narrowly it is key to this interpretation. that kind of judgment is outside the scope of my brief comments here. it's just to say that history is likely to continue to play a significant role in second amendment litigation whether the courts and up keeping the to park test or adopting what justice kavanaugh has advocated, a strict text tradition test, and having a good sense of facts, with brett then scope of regulations is essential to making informed decisions about

our post heller second amendment jurisprudence. (applause) >> thank you all for coming out to this briefing. i know you all have busy, complicated lives. we appreciate you taking time away to spend this morning with us. my charges rather modest. i have to summarize 500 years of the history of gun regulation with lucidity, which, and concession. i'm not even sure lynne manuel miranda could wrap 500 years of gun history. fear not, i won't try to wrap it. i will just try and do it in a narrative form. when you look at the history of gun regulation, which is something i have spent a great deal of time over the last 20 years, what immediately jumps

out you is that for as long as there have been guns in america, they have been regulated. in fact, not only did the english settlers bring english firearm technology, they brought a concept of law that included firearms regulation. one of the most obvious examples is the one my colleague daryl mentioned, limits on the ability to travel armed in certain areas. in some cases, you might analogize them to sensitive places. you can't bring a gun in front of the kings ministers or in front of the court, or fares or markets, which probably now analogize to populous areas. we have a common law tradition that was carried over. of course, parliament also regulated firearms. and then the colonies themselves and eventually after the american revolution, the states and federal government. when dealing with the history of regulation, we are dealing with different spheres, and i

point this out to say that there are many tools, but there are different tools available to different levels of government and we need to keep that in mind. one of the things that seems so unusual when you sort of step back and look at the current debate over what we should do about firearms policy, the debate tends to play out as if he choice is regulation or liberty. what is so interesting of the founding generation is there is no liberty without regulation. in fact, the ideal was something that they called a well regulated liberty. that term is probably not used as often in modern jurisprudence. the closest term we have to it is a great phrase that justice card owes a coined,. we fear tyranny, but we fear anarchy. the goal is to create a well regulated society where everyone can maximum enjoy their liberty with the lowest cost in terms of public safety

and other considerations. that's the kind of framework we need to always have in mind when we are talking about the history of gun regulation. if you read the text of the second amendment closely, and i think there's very few texts in american constitutional law that had been poured over as closely. there was a grammatical brief during heller. a group of linguist gave the court a lesson in the absolute, which is a latin grammatical construction. you don't see that happen that often. i went to a progressive school. i won't go into anything about that. we sort of used grammar as we felt. we used commerce and colon's so that they fulfilled our existential needs. progressive schools have things as well. i'm sure almost everyone here could recite the second amendment, but i won't make you do it.

it well regulated militia is necessary to the security of the free state. the right of the people to keep and bear arms should not be infringed. generally, people who favor gun regulation our father of the first part. people who are more committed to gun rights like the second part of the amendment. and the part that always gets left out, and the one that has drew my attention more fully recently is the middle. security of a free state. i think, thinking about a concept of well regulated liberty, whatever policies we design, whatever goals we do, whether it's an expansion of gun rights or regulation, both of those policies to be true to the second amendment have to further the security of a free state. how we interpret this and what promotes greater security for free states as something. that's why we have a political system to try and argue it out. there is just one issue here. there are competing issues of

liberty. the liberty that got on his claim about the right to keep and bear arms. and the ability that people have to legislate and make beneficial laws to govern ourselves. then there is a liberty interest that we don't hear so much about that was absolutely essential to early america. that is peace. the right to live in a peaceful society. the right to live under a regime with a rule of law, not a rule with a state of nature in violence. those are important values. 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 kinds of regulations under common law. we have alluded to some of them. a number them dealt with where you could carry firearms in public. they were statutory regulations. one of the first things any colony or any town did was to pass laws about regulating the storage of gunpowder, which

poses serious public safety concerns. some localities passed storage laws, boston did in 1786. you couldn't have a loaded firearm in a domestic dwelling. it posed a danger in case of a fire. the firearm would discharge. how do we analogize that? what does that mean? does that law mean a modern safe storage law is presumptively constitutional? is it different because farms technology has changed and bullets don't work the way muskets worked? these are interpretive issues that require fleshing out. but the purpose of this briefing is just to say there is a long history of gun regulation. there is a lot of interesting things that have been tried over the years. and we need to be mindful of that. there have been regulations about the militia and, not only will you require to purchase a firearm, govern impose that requirement on you. but those militia weapons could be inspected. if george washington had had

his way, there would have been private inspection twice a year of firearms as part of a goal of preserving a well regulated militia. and there are a variety of regulations about the sale, transfer, of firearms. particularly as we move forward in time in the market revolution, and the number of types of weapons expand. we don't have time? i am good. okay. one area of gun regulation i want to draw your attention to is probably the least, most an utilized, least central to the way we think about, it but in some ways one of the most ancient ways of achieving public policy goals. that is taxation. the state militia act and first federal militia act, where the first on funded federal mandate. you are required by a lot tougher to say firearm. if you failed to do so, you could be penalized.

it's kind a like the affordable care act. 18th century style. if you think about, at the great thing about taxation as a policy is it gives you both carrots and sticks. you can encourage safe gun ownership. you can just as easily give someone a tax writeoff for buying a gun safe, as you could impose a higher tax on a weapon that is more potentially dangerous, if it is out in the civilian population. so i would encourage you to think about taxation, because taxation gives us a whole variety of tools to encourage public policy. there are ways of preserving privacy because we all file taxes. you can provide incentives. and it's one of the oldest forms of regulating firearms. i just want to draw your attention. it has received almost no attention, since the new deal really. the imposition of certain taxes on machine guns and other

weapons during that period of our history. the other point i will make is that for the most of our history, up until the 20th century, most gun regulation was done at the local or state level. there is very little federal firearms regulation until the modern period, except for regulations of militia, and except for encouragements for the firearms industry. without government intervention, we wouldn't have a firearms industry, because the government pumped money into it. and now america has one of the greatest firearms industries in the world today. another part of the history that has been relatively hidden but is important to bring to the four because this idea that somehow government and guns are on a collision course is a recent problem in american history. for most of american history, government, regulation, those were complimentary. if you had to summarize what is the dominant position that the

time of the second amendment, most americans are probably pro gun and pro regulation. the problem we have today is that you need to choose one of the other. but the only way to live in a society with a lot of guns is to have a society where there is effective gun regulation. think of examples around the world. israel, switzerland, they all have very robust regulatory regimes. they have a lot of guns, but this idea that only with regulation, you actually achieve true liberty. that's the most important take away from studying the history of gun regulation. and there are lots of examples in our history. how we adapt them to the circumstances of the day is a complicated question. we won't solve them today. but history provides us a lot of interesting examples to think about. thank you very much.

there is at least two seats up here if you would like to take them. as i said at the start of the briefing, we provided cards for you to write down any questions and send them forward. i'll be happy to feel those and ask some questions of our presenter's. jeff is standing here, my lovely assistant. he will collect those cards and hand them to me. if you have a card and want to pass it to the end of your row and then he will collect them. i can't believe there are no questions. that would be odd. let's just say that. i hope that while you are writing voluminous questions on your cards and while jeff is collecting them, i will start with just what might seem a

basic question. it it is important for a worms eye and bird's-eye view. i am interested in the analogy of histories place and law and how this notion of historical analogy comes to be. you started off by talking about the specific indication of a historical analogy as significant because we live in a world which is technologically and in so many other ways very different than the world of the late 18th century. how does historical analogy come to have a legitimate place in jurisprudence? >> excellent question. there is a couple of answers. one is the interpretive move of originalism. that focuses intensely on history, either at the linguistic level, the words and they're meeting, or as hell or seems to indicate a kind of

contextual level. how do you understand these words in context? justice scalia and his can currents, in the city of chicago, they say you know what the boundaries of the second women are by the regulations that exist. that is the end point with respect to history, especially in this space. it is being driven by this dock trial majority and macdonald. and we are really at the point of trying to figure out, at what level of abstraction are we talking? obviously, there are no jetliners in 1791. but there is concern with firearms and crowded areas. so that's the jurisprudence you'll point. if you are going to do this kind of historical work, what is the relevant level of

generality at which to make the decision? and that is something that justices and judges disagree about. >> thank. you that it's helpful and interesting. i have several follow-up questions and i will go to the cards here. a question for you, saul. it is about historical views on restricting gun ownership by age. can you speak to that? >> excellent question. this both raises the analogy issue and raises empirical questions. if you were to look through statutes about the militia from the colonial period and early american period, he 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 try to make sense of what that means, and by the way, one of my favorite

parts of this, particularly in massachusetts and virginia, is that faculty of harvard college are exempted from the militia. we could all get behind the idea that arming the harvard faculty would be a pretty dangerous idea. the wisdom of the founders prevails once again. if government can force you to participate in a militia between a certain age, is that meeting that you have a liberty interest, a right to carry a gun? or does it mean the government has a right to compel you or prevent you from carrying a gun? we get back to darrell's question about analogy. if we go forward into the 19th century, we find examples of limits on the purchase of firearms to minors. then we get to this other interesting question, when heller says long-standing. where is the metric for constitutional time? when is a short constitutional

time? what is a long constitutional time? do you go back to the 18th century to demonstrate long-standing? the civil war era? if a particular weapon only became popular in the 20th century and has lost the moment it penetrates the market, does that mean the clock starts in 1915 for demonstrating that something is long-standing? there is a host of issues that have not been fully considered by courts and legal scholars about what the key constructs in hell or actually mean and how we would apply them. >> thank you. you shall feel free to ask for additional cards if you want follow-up questions. just wave your hand. >> i'm going to go back to you. not to be a ping-pong here. is there any indication that kavanaugh's approach to the second amendment that is by historical analogy and otherwise has other adherents

on the supreme court right now? >> i'm a terrible court watcher. so i do not know. i suspect without having any sort of inside knowledge that perhaps justice thomas would be sympathetic to this approach. 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 don't think that's the whole game, right? it is the fact that it's in the water in some sense. it is shaping the other kinds of questions that get presented to the court. why? because you want. it if you know some of the justices are inclined to be skeptical of some other type of test, the briefing is going to be different. justices can make decisions

based on what they see. whether or not you have five votes for a strict history test does not necessarily mean that history won't be influential as a matter of practical court lip occasion. i say this is a former litigator. >> as we were saying on the walk over here, history itself is kind of a contested terrain. there is information that we can find in history, but what the sources are and how they can be contextualized are radically different. that's not because anybody is 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 here we are. the first congressman wartime debating militias than the second amendment. so how do the courts consider

the weight of those debates in their interpretations? >> it depends on what your theory is. one of the most interesting things about the heller decision as we had two versions of originalism, justice kelly is texture list originalism and justice stevens more intentional list version of a originalism. justice scalia was concerned about dictionaries and what went on in the antebellum period and using those sources to eliminate the meaning of the second amendment, whereas justice stevens drill down to what they were arguing about in the first congress. different interpretive modes of analysis have different theories originalism. the scalia version seems to be the one that most original lists in the academy at least are championing these days.

constitutional theories come and go kind of like fashion. and probably less quickly. you probably invest in originalism for 20 years of wearing that. like so many things there will be backlash, a different interpretive modality that will emerge. but there is no question that in the foreseeable future, briefs with a good chunk of originalism will be written in many, many cases and be written in anything touching on the second amendment organ issues. >> can i weigh in here? >> i think it is now pretty clear that heller is a much better decision in terms of its justification, if it abandons the original list premise. if you say, i can bring in stuff from a 19 century or early 20th century or even in the modern era about how people understand rights with respect to guns, it's a much more defensible decision than to say,

well, all of this discussion about the militia in the 18 century was really about defense against criminals and burglars. so in some sense, justice scalia, was trying to meld two different lines of reasoning. what happened to do with his original list commitments. the other had to do with his belief that the second amendment actually protects guns and the personal ownership of guns for personal purposes. these things did not really tightly fit together. you can't just say the things changed in 1868 or the 20th century that would have supported the opinion much better. >> i forgot that part about turn off your phones. that's all right. it happens to everyone every now and then. >> i will follow up with a

slightly different question about legalities. back to darrell. your thoughts on state preemption laws. do localities like pittsburgh stand a chance of an acting local regulations? to what extent will local restrictions fall before constitutional argument? >> the second amendment is the supreme law of the land, and it's incorporated through the 14th amendment due process clause to apply to the states. if there is conflict between the second amendment and 14th amendment and a pittsburgh regulation, then the pittsburgh regulation just falls. that is constitutional structure. maybe i don't understand the level we are talking about. if the question is about if a state legislature wants to create more rights than what the second amendment would protect, that's within the

domain of what states can do. if states want to say, we authorize concealed carry, guns everywhere, you don't need a license, they have the authority to do that. it's not because the second amendment or requires it. it's because it's part of the law. >> one of the great joy is about working on this issue as a historian is you get to appreciate irony. it's the great master trope of the historian. the great irony about this debate is, when you talk about guns and the second amendment, so many things we could have predicted no longer start to play out the way you would expect. conservative constitutional theory for a long time has been focused on reducing federal power. and they want to restore powers to localities and states. that was the new federalism. yet, if you look at concealed carry reciprocity, you have conservative advocates of gun

rights wanting to endow the federal government with powers that would have made barry goldwater have a stroke basically. the idea that once upon a time many, many gun regulations were done locally or at the state level, we have actually moved. it has not been the liberal side of the spectrum that his move. the conservatives have moved as a way from allowing localities to an active variety of different firearms regulations. again, that's ironic from a historians point of view. the significance for the point of public policy is a complicated question. but once upon a time we had the ability to say localities will do this, states will do this, and the government will do that, but we have slowly been eroding local control. there is a pendulum swing. we now see the rise of second amendment sanctuary counties. that's another example of people pushing back against national, federal, or state

regulation. it just makes the subject of the second amendment endlessly fascinating if you are on the sidelines writing about it. actually, you have to make laws. my heart goes out to you because that is complicated. >> complication is the true domain of the historian, not just irony. >> i will save this question about, this is a big question about the politics of legislation. i will go back to this question about security, and i will rephrase it. i will ask daryl invincible to comment on security, in the middle of the second amendment. how security is interpreted and

debated with legislation and in case law and whether that is changing over time as well? that is who is secure? collective and individual security? >> as joseph and i try to say, security is a textual hook to try to reframe or understand what the second amendment is for. when you ask what it's for, people say self-defense. but it can't be that simple, right? the example i always go to is a prisoner that is incarcerated has moral right and indeed maybe even legal rights to defend themselves against an attack in prison. but we don't think of a prisoner as having second amendment rights. unlike other kinds of rights in the bill of rights that a prisoner clearly does not shed

simply by being incarcerated. there is some separation between self-defense and the second amendment. understanding that, then we have to appreciate the fact that well, maybe it is something more nuanced like safety. that's the idea that we have a society that permits the private ownership of firearms before reasons of safety. then we have policy disagreements about what creates an optimal regime of safety with gun rights proponents saying more guns in more places leads to ideals safety, and people that want to regulate guns saying that a free market and the tools of violence doesn't necessarily lead to optimal outcomes. and therefore, there needs to be regulatory structure to create optimal safety and an environment with a constitutional right to actually possess personally firearms. that's one way of unpacking

maybe what security means post heller. >> again, one of the great fascinating things about getting into the history is you begin to see that many of the ways that the second amendment plays out and popular culture and modern america are almost the mirror image of the historical second amendment. that's not unusual. there are many times or the history, the law, and the culture of the constitution don't line up perfectly. to give you an example, you often hear about second amendment remedies or second moment as a right of revolution. it is the ultimate check. setting aside the fact that the trees and clause of the constitution defines treason as taking up arms against the government, so that theory of the second amendment would have silently repealed the treason clause, which isn't a very astute reading of the constitution, the simple fact is the founding fathers were

perfectly able and eager to confiscate as many guns as they could from a variety of groups and 18th century merica who they believe should not have them, including loyalists. the real gun grabbers, if you wanted, are the ones who wrote the second amendment. how do we make sense of the fact that the people who wrote our second amendment probably engaged more wide scale gun grabbing than any group up until that point in western history. the only way to make sense is to realize we are dealing with 18th century whip political and constitutional theory, not modern liberalism, libertarianism, socialism. we are dealing with a different world where different concepts and different ways of thinking about the constitutional questions are dominant. that's the real challenge to actually be able to think in the mindset of an 18th century lawyer or congressman. unfortunately, all too often, people who are quick to invoke the second amendment and

incantation like ways have not done the hard work to dig into the 18th century context to really understand what those words meant. >> back to the question about analogy in contemporary analogy. i will repeat this pattern of asking you to start. this is a question for both of you. is it the case? can we make an absolute case that the second amendment is rooted in and a constitutional principle about english common law? or are there other traditions from which they derive that might give us a different perspective on the second amendment? >> that's an important question. the reason why we talk about english history or the statute of northampton or what is going on in 17th or 18th century england is because hell or in some sense says the right to

keep and bear arms, as justice scalia understands, it is a right to come over from england. when they are writing the second amendment in 1791, they are simply in coating a british understanding. very quickly, it becomes apparent that that is not really easy to do. why? as james battles said identified very early on, when talking about a different constitutional provision, the seventh amendment, he says is that our common law, the common law that existed in england, by our statutes? what we end up with is this weird mishmash of, we have english history and then we have american history and as justice harlequin once said, the business of constitutional decision-making is figuring out

what traditions we adopted and what traditions we broke from. when we are doing this kind of history analysis, that is really the questioners. the tradition in england was to disarm what they called pay pests. that's not our tradition. but that is part of a tradition. and, so trying to sort that out is the tough part about doing the analogy, but it doesn't mean that it can't be done. it just means that it is hard. >> i have a follow-up for both of you. isn't part of the story as well the extent to which the founders understood 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. one way of reframing heller, probably a much better way than they actually did, was the second amendment intended to elevate traditional common

allred of self-defense to the level of express constitutional provision. the general consensus among scholars who have gone over the evidence is that is absolutely not with the second minute was about. that doesn't mean the law of self-defense was not firmly entrenched in american law. clearly it was. but the second amendment was about a different constitutional issue that had to do with issues of federalism, mitchell is, and in order to have the kind of militia that the founders wanted, you needed 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 foreign policy before the glorious revolution was basically to keep guns out of the hands of the lower class. there were strict property requirements that prevented people from owning firearms. the main goal of early firearm policy is to encourage americans to buy the guns that

the government wants them to. americans are reasonably well armed compared to english brethren, but woefully under armed compared to the idea of a universal well regulated militia. a farmer does need a bayonet to get a turkey on the table. you want a light hunting musket. so our problem where we have over 300 million guns in america, we are trying to figure out how do we analogize from a society with gun scarcity, relatively speaking. and abundance of guns compared to europeans, but relative gun scarcity compared to today. how do we analogize anything they did when we live in a society? it's an error to say we should only protect muskets because that's what they did. that's not what i am saying. i am saying that technology changes but so do social,

cultural, and economic contexts and which technology functions. one of the things we haven't fleshed out is how do we recreate some of the kinds of mechanisms of safety that were informal? people were living in rural, close knit communities. i lived down the street from the magazine and i remember talking to one of the firearms reenactor's who explained to me, i would've had to have worked on everyone's musket and town because they need constant repair. now you can buy a gun on the internet. how do we compare the williamsburg magazine and the local gun smith to the world where we can buy on a website? the great thing about being a historian is i can frame the problem. i don't have to solve it for you. that's why they pay us the remarkably modest bucks at the end of the day. that's one of the major problems, in essence.

>> continuing on this question of contextualizing, i want to ask a specific question about infringed and abridged. how those two words differ in their implication and whether there is a historical context. >> it depends on whether you think we are doing a linguistic exercise, or the meaning is not interchangeable. you could say infringed means just the same thing as to violate. that's one of the definitions. it could be a binary. it is honor off. you have infringed or you haven't. or you could think of it as a spectrum. and there is not a good linguistic account that i have seen so far about which way to

interpret that. as between infringed and abridged, i am not sure, how much work you can really do with that kind of thing. lots of times they say 18th century things, like certain rights shall not be questioned. i don't know what that means. and a system of judicial review where judges get to interpret the constitution, we say shall not be questioned. >> ought not be questioned. >> i just don't know what it means. i am just not sure -- >> one thing is very clear. the first amendment talks in a language of abridgment, and this second amendment talks about the language of infringement. >> the question is about whether they are individual or collective. >> oh. 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 a different point. you can cross the threshold where you have undermined the nature of the right. what you do with that i think is still up for debate. >> here is a specific question about very very briefly. >> spot the professor. >> it 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. commerce clause. clearly, the major transformation is, until the 20th century, the idea of militias, commerce clause, is not the great engine of

regulating anything. that would include guns. >> do you want to add to that? >> now. >> all right. i am going to wrap up with a question for you in just a second. but there is a question here for saw that's about historical analogs of the current trend of the way the question is raised is self identification by gun ownership, meaning identifying oneself as a gun owner being, having gun owners should be a sense of one's identity, and whether that is a 28 or 21st century phenomenon and how significant that is in three sentences? >> i think it is very clear that in the 18th century, firearms are utilitarian. they're a tool. people know about them. they need. them they use them. they may have a powder horn that they carved in an elaborate way to lend some kind of artistic quality to it. people did not identify

themselves the way modern so-called super gun owners, people with over 15 guns, as 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 that because they are not advertised the way they are in modern america. you don't get your man car the way you do when you buy an ar-15 in the 20th century. you just look in a newspaper and see someone has guns i should go get one. >> so you can't analogize to the display of other kinds of weaponry that were so common in nearly modern period including in 18th century america? if you go to the governor's palace and williamsburg, you can see an extraordinary collection of sorts, broad sorts, all kinds of things displaying weaponry. what has a longer history? >> in terms of the state and military function of the state, you have parading, all kinds of symbolic.

but i am thinking more of the sense of having this gun in my house is key to understanding who i am as an american. , what about the english mobility and guard councils 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. there are one of the few peoples were exempted out of the statue prohibition. they were allowed to carry weapons to their condition. it is allowed by law. >> final question. this is for daryl. coop to do some future casting for us, which is, we've been talking about the history of history. diane some of which you have said suggests that history in particular, by very specific form, by analogy, it's going to have a significant role going forward, particularly in this

legislation and legal ground. you want to say anything more about significant you think that will be. do you think that will grow and become more intensive? >> it could. i have a feeling the history of the second amendment and the regulations will end up finding their way about shading what might otherwise be what i think most legal -- a kind of conventional approach to any constitutional adjudication. there is always a covered question how are you dealing with a constitutional issue, right? not every kind of speeches the first amendment speech. even if it is it is not protected exactly the same wear everywhere that such speeches occur. even if we adopt those baseline and the male constitution constitutional structures, the history is going to influence

how both strokes of this piston operate. the other thing i will add is, and this is what we keep dancing around. the issue about the historical materials as they don't present their own and illogical bases. there is a jewish presidential imperative which is a rule of relevance, as fred said. you can say that a credit market is like a plane if what you think is relevant is in the fear that people will be harmed enclosed spaces. but if you say no, the relevant material between that is you go to a fair to entertain yourself where you get on a plane to travel somewhere, then the analogy breaks down. there is nothing in the materials themselves that tell you which way to jump. it is what the judge does. >> as a historian, i thank you for essentially saying it is

complicated. thank you all so much for being here. thank you.

up next on american history tv. a conversation from the texas book basketball with the author of the book gunfight: the battle over the right to bear arms in america. >> good afternoon everyone and welcome to the texas book festival. i'm rick dunham, washington chief of the houston chronicle and creator of the