heller isn't a historian. heller doesn't change all the documents and everything. it does codify that law but it doesn't change the way we do it. i would also care to say that moving forward, as i argue in one of my books, we need to be very careful using history. if we don't have consensus history or something that we can all agree on, the five majority to say that yeah, historians in general agree on this. this is an accepted historical understanding that we should not use that as a rationale to move forward because what the law is, is basically taking a certain amount of key facts and then rationalizing on those facts to come to a legal conclusion. that's what the law is and the more facts you have, and the closer those facts are interconnected, the more legitimate that opinion is reasoned. and will be supported over time. the further those facts are, which i would argue is heller, the more illegitimate it will become over time. i would say it's illegitimate in that regard. but as long as we have this fervent gun rights, gun control divide that we're not having

for example, heller says that concealed carry can be prohibited. in fact, justice scalia used as illustrating a historical prohibition, saying, for example, to request the question held prohibition was lawful under the second amendment or state analog. according to heller prohibitions on concealed carry do not raise a second amendment question at all because there's a long history of regulating concealed carry. similarly, heller suggests machine guns can be prohibited because machine guns fall within a historical prohibition on the possession or carrying of dangerous and unusual weapons. it's not that these regulations on concealed carry or on machine guns require some other justification to support them. these laws are just constitutional under the second amendment in the same way that prohibitions on extortion or security fraud are categorically constitutional under the first amendment. if the second amendment covers the regulation at issue, the second part of the test asks whether the regulation burdens the right to keep and bear arms. this is a

this heller case was the first time and not only the supreme court unambiguously held that the second amendment protects a individual's right to possess guns for personal protection, but the first time that the supreme court struck down a law, a gun control law for violating the second amendment. the law was a law in washington, d.c. that was a ban on handguns, and also a ban on the use of long guns for anything but recreational purposes. so you could own a rifle or shotgun, but you could only, it had to be locked or disassemble and used only for recreational purposes like hunting or target shooting. a d.c. court held specifically that if a burglar was breaking into your home, you are not allowed to assemble the gun for self-defense and use it for self-defense, because it was not a recreational purpose. so you could take the gun and maybe you could bang somebody over the head with it, but you were not allowed to shoot somebody with it if they were threatening your life. so the supreme court stepped in and ruled on this case, and one of the remarkable things about the case was that the

district of columbia versus heller. can you talk a little bit about what the facts were in that case and why the case is so important? >> the supreme court had mentioned the second amendment over the years, it had very strenuously avoided ruling of what's the meaning of the second amendment was. so, despite the fact that we know in our culture that everything ends up in the supreme court, eventually, the supreme court was determined for many decades not to rule on the second amendment. they just left that to the lower courts and to the legislatures. this heller case was the first time, not only the supreme court, unambiguously held at the second amendment protection individuals right to own guns for personal protection. but the first time that the court struck down a law that, a gun control law for violating the second amendment. and a law was struck down was a law in washington d. c., it was a ban on handguns, but also a ban on the use of long guns for anything but recreational purposes. so you could own a rifle or sho

heller only dealt with the federal government and the district of columbia. that case was 5-4. any kind of judicial appoint might change that. i'm -- i don't think the democrats really have a big -- a lot to gain to push for nominees hostile to the right to bear arms especially because the decisions were 5-4, republicans in the senate and the gun right supporters on the democratic side are going to bun likely to support nominees that could change that vote from 5-4. i am hopeful in the long run, that is the kind of decision seen as something that helps american politics to move forward and thus accepted by both sides of the issue. >> so earlier today there was a panel on the narco drug wars and part of that discussion was talking about how a lot of the weapons being used originate here in the united states. i was wondering if you had any insights as to ways that we can control that without infringing too much on second amendment rights and also a method that would be acceptable to both parties? >> right. well right now i think that there's probably not a lot of gun control laws

or as heller seems to indicate, also a can -- contractual of.l how do you understand the words in the context, justice scalia, his concurrence, the city of chicago, mcdonald, says you know the boundaries and the regulations that exist. so that is the end point with respect to history, especially in this place, it is being driven by the commitments of the majority, and heller, and the macdonald. we are at the point we are trying to figure out what level of obstruction to talk about? obviously there were no jetliners in 1790, one but there is concern with fire arms in crowded areas. so that is the dress prudential point, if you are going to do this kind of work, this historical analogy work, what is the relevant level of generality at which to make the decision? that is something that justices and judges disagree about. >> thank you. that is really helpful and interesting. i have at least ten follow-up questions myself, but i'm going to go to the cards here. i have a specific question for you about historical views on restricting gun ownership by

now you will see starting from heller, to the extent that heller is it, issue it will start with heller it will develop sort of, according to a common law method, you know, taking the principle, deciding whether to extend it or not deciding whether it applies to the next case in the next case. you will have a body of law that has grown up separate from the first two decisions. that is what you've seen with the first amendment. nobody has a debate very much anymore about what was the intent of the framers with regards to the free speech clause or the establishment clause. it just becomes about the case law. as far as the assault weapons begins, i mean justice scalia did sort of create a lot of uncertainty, but he left a lot of the way for regulation by that help or safe harbor. the question really becomes, he mentions there's a right to carry dangerous and unusual weapons. i think some of the debate is over assault weapons. assuming you can define it. that's another debate. whether those are truly dangerous or unusual considering how many tens of thousands of them there are. they are ava

the heller decision. h-e-l-l-e-r. there, heller sued the district of columbia. the district of columbia, which by the way has more police than any city in the united states, said you cannot own a gun, a handgun unless one, you have a permit and, two, or two you're a member of the police force. or the fbi. or the secret service or the u.s. capitol police. heller sued and heller argued, i should be able to have a handgun in my house to defend myself. i don't have to be associated with the d.c. national guard to own a gun. and the supreme court ruled, you're right. you don't. the supreme court ruled gun ownership is an individual right, not an associative right. so, you have and they overturned d.c.'s rule and said that you can have, you can own a gun. now, the most recent case before the courts now comes out of new york city. because of heller, new york city was forced, new york city has the sullivan law, one of the toughest anti-gun laws on the books. and one of the highest murder rates. new york decided, okay, because of the heller decision, we're going to have

heller sued. heller argued i should be able to have a handgun in my hands to defend myself.i don't have to be associated with the d. c. national guard to own a gun. and the supreme court ruled you are right. the supreme court ruled gun ownership an individual right, not an associative right. they overturned d. c.'s rule and said you can own a gun. now the most recent case which is before the k courts now comes out of new york city. because of heller, new york city was forced, new york city has the sullivan law, one of the toughest and i gun laws on the books, and one of the highest murder rates. new york decided, okay, because of the heller decision, we're gonna have to let people have handguns. but you have to have a permit, the handgun must stay in your house or it must stay in your business. you can't transport it. if you get caught transporting it, you can be put in jail. and now the opponents of that law have taken it to the supreme court and said, it's restrictive. if i want to take my handgun from my home to my second home on long island, i should be able to do that.

heller in 2008 recognized the second amendment protects the right to keep and bear arms distinct from the militia as well as connected to the militia. that right extends to self-defense. >> again, just to be clear, during the 1920s and '30s is when we start the start of gun control legislation in this country. >> i think more modern as you know today. the categories that are being regulated in the 1920s and '30s are really no different than the late 19th century, but you start to see more modern type of laws and regulations. they're becoming more comprehensive if that answers your question. >> and let's go back even further. you said the formations, the genesis of the nra post-civil war, how did they view the second amendment then versus how we may view it today? are there differences? >> yeah, i think when the nra is first established in 1871 it's going to be a hard find to see them talking about the second amendment. it's really at the turn of the 20th century they start talking about the second amendment, and it's almost always in the context of what is called the 1911 sullivan law

jeffrey heller, the city and county of san francisco oh, and and your band of architects a great thing a great thing. >> to impart to the history of this building is remarkable. to see a person who comes in with a gloomy look on their face , and all of a sudden you start talking about this building, the gloomy look disappears and a smile registers across their face. with children, and i do mainly all of the children's tours, that is a totally different feeling because you are imparting knowledge that they have no idea where it came from, how it was developed, and you can start talking about how things were before we had computer screens, cell phones, lake in 1915, the mayor of san francisco used to answer the telephone and he would say, good morning, this is the mayor. >> at times, my clothes make me feel powerful. powerful in a different sense. i am not the biggest person in the world, so therefore, i have to have something that would draw your eye to me. usually i do that through color, or just the simplicity of the look, or sometimes the complication of the look. i have had people s

originalist decision that i find most questionable and this will upset many of our listeners, is dc versus heller 2008, is the decision on the second amendment. in the decision to justice scalia who is himself a lifetime member of a rifle association of five - four decision essentially argues the second amendment provides right to carry a weapon and that right is almost as open-ended as the right of free speech. and that's not what the second amendment saidd and that's not what madison thought he was doing, that's on the congress thought it was doing it when they endorsed it is not with it states that they were doing when they ratified and the term bear arms, does not mean carry a weapon, means carry a weapon in a military unit serving in the army or militia. in the second amendment was written by madison in april in 1789, specific purpose. it was designed to assure the states that to recently ratify the constitution but it did so with recommended amendments, they wanted certain changes made. six of the statesere worried about what they called the standing army, a national defense would be in the

heller to sfo will take about 36 minutes this morning. bay bridge, extra volume. we are seeing things crowded across the upper deck. things are moving at an okay pace if you are headed towards the pay gates. no metering lights. you should be okay into san francisco. if you are headed towards the maze, 880, you see traffic moving with no delays, nimitz near the colosseum. >>> disney's much loved fast passes are no longer free starting this fall. >> they will be part of a service called disney genie plus. a paid version will allow guests to access the lightning lane for $15 at disneyworld and $20 at disneyland. it provide information on current and forecasted wait times for riders. i liked disney a lot and had no idea this was coming. >>> pizza lovers and pizza makers coming together. expo getting underway today, all about making the best pie. >>> at 7:00 on cbs this morning, what we can expect from covid booster roll out. plus how the facebook ceo mark zuckerburg wants to use very chalcedony reality to revolutionize working from home. >>> a writer, actor, producer

phrase that has entered our daily vocabulary to describe impossible situations. 60 years ago, joseph heller put that phrase in our vocabulary through the title of his war novel, catch-22 which captures the clumsy and inefficient processes of the american military which he experienced first hand serving in world war ii. armies are not efficient machines, they are not run like automobile factories as we discovered when the ceo of the ford company became the secretary of defense during the vietnam war. he was lost in that job, as lost in that job as any of the other secretary of defense's during the vietnam war. the american military is a massive bureaucracy does the something swell, but the things that it does not know what to do is the same thing that no military, in the world, knows how to do. that is organize a dignified, honorable retreat and full evacuation from a war that we lost in a foreign country, without leaving anyone behind. when someone tells you that the evacuation from afghanistan could have been run better, ask them why that has never happened before in history. i asked them

originalist decision that i find most questionable and this will upset many of our listeners is dc versus heller 2008. it's the decision on the second amendment. and the decision by justice scalia who is misophon lifetime member of the national rifle association a five to four decision. essentially argues that the second amendment provides the right to carry and a weapon and the right that right is almost. as as open-ended as the writer free speech that's not what the second amendment said. that's not what madison thought he was doing. that's not what the congress thought. it was doing when an endorsed it. that's not what the states thought. they were doing when they ratified it. the term bear arms doesn't mean carry a weapon. it means carry weapon in a military unit. serve in the army or the militia. um, and the second meant was written by madison in april of 1789 with a specific purpose. it was designed to assure the states that had recently ratified the constitution, but did so with recommended amendments they will wanted certain changes made. and six of the states were worried about what the

we can use hellers -- helicopters to do it. where we're heading here with such concern is we're going to say, well, we got the american citizens out, most of them out around we did the best we could with our afghan partners. i fear that we're not going to leave a few thousand of them behind. we're going to leave tens of thousands of them behind. we all know what the consequence is. we've had ample evidence that they will kill them and kill their families. that's what they've already done. this is a very frustrating and sad situation to see. >> martha: we heard the president say we think we can get the afghans out in time by august 31. then he said we'll see. that backs up exactly what you're saying there, general. he also said there's a lot of afghani, that would like to come to america, so they have to figure out who sort of has earned the right to come. that from the president. general jack keane, thank you, very much. we'll hear from you later. want to bring in michael waltz joining me. served multiple combat tours in afghan

jeffrey heller, the city and county of san francisco oh, and and your band of architects a great thing a great thing. >> to impart to the history of this building is remarkable. to see a person who comes in with a gloomy look on their face , and all of a sudden you start talking about this building, the gloomy look disappears and a smile registers across their face. with children, and i do mainly all of the children's tours, that is a totally different feeling because you are imparting knowledge that they have no idea where it came from, how it was developed, and you can start talking about how things were before we had computer screens, cell phones, lake in 1915, the mayor of san francisco used to answer the telephone and he would say, good morning, this is the mayor. >> at times, my clothes make me feel powerful. powerful in a different sense. i am not the biggest person in the world, so therefore, i have to have something that would draw your eye to me. usually i do that through color, or just the simplicity of the look, or sometimes the complication of the look. i have had people s

s ban on handguns, the heller case. he was party to a legal brief in the case which said the second amendment he said only protects militias. he supports bringing back the 1994 assault weapons ban which president biden often brags that he wrote. congress let that ban expire because there was never any proof that it brought down crime. during the hearing with the judiciary committee, senator cotton specifically asked mr. chipman to define what an assault weapon is. mr. chipman said an assault weapon would be whatever congress defines it as. senator cotton went on to ask mr. chipman for his own definition of an assault weapon. he said any semiautomatic rifle capable of accepting a detachable magazine above a22. well, as senator cotton rightly pointed out, this would ban most sporting rifles in america. if david chipman made other -- made our gun laws, most sporting rifles would be banned. states could ban handguns. private gun sales would be illegal. these views are completely out of touch with the views of more than a hu