On Monday, the Supreme Court heard the case New York Rifle and Pistol Association v. the City of New York which centers around a New York City gun regulation prohibiting residents from taking their guns to second homes and shooting ranges outside the city. After New York’s NRA affiliate and some gun-owning residents challenged the regulation, New York changed it – raising the question of whether this case is now “moot.” Explaining the “mootness” issue and diving into the legal and practical implications of the case – Second Amendment experts Darrell Miller of the Duke Center for Firearms Law and Clark Neily of Cato join host Jeffrey Rosen. They discuss the history, text, and tradition of the Second Amendment, what the right to “bear arms” really means, and how the Court should decide its first major Second Amendment case in almost a decade.
Here’s some vocabulary that may be helpful to know this week:
- Mootness: A case becomes moot if the controversy that was present at the start of litigation no longer exists.
- Judicial review doctrines: A judicial review test is what courts use to determine the constitutionality of a statute or ordinance. There are three main levels in constitutional law:
- Strict scrutiny: For a law to survive a court’s review under strict scrutiny, it must be narrowly tailored to achieve a compelling government interest.
- Intermediate Scrutiny: A level down from strict scrutiny. The law must be substantially related to an important government interest.
- Rational basis: The most deferential kind of review. The law must be rationally related to a legitimate government interest.
FULL PODCAST
PARTICIPANTS
Clark Neily is Vice President for criminal justice at the Cato Institute and an adjunct professor at the University of Texas School of Law, where he teaches constitutional litigation and public-interest law. Neily served as co-counsel in the landmark Second Amendment case District of Columbia v. Heller.
Darrell A. H. Miller is the Melvin G. Shimm Professor of Law at Duke and Co-director of the Duke Center for Firearms Law. With Joseph Blocher, he’s the author of The Positive Second Amendment: Rights, Regulation, and the Future of Heller.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- New York Rifle and Pistol Assoc. v. the City of New York oral argument transcript
- We the People episodes:
This episode was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Special thanks to the Duke Center for Firearms Law.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Rosen, President and CEO of the National Constitution Center, and welcome to We The People, a weekly show of Constitutional Debate. The National Constitution Center is a non-partisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. Today we'll dive into the Supreme Court Case, "New York Rifle and Pistol Association Versus the City of New York." This is the first major Second Amendment case that the Court has taken for some time. It focuses on a New York City gun regulation that forbade or forbids, depending on your point of view, residents from taking their guns to second homes and shooting ranges outside of the city. Remember, dear We The People listeners, we discussed this case over the summer when the court agreed to hear it. Uh, yesterday, uh, the Supreme Court heard oral arguments, and today we will review those arguments and discuss the potential Constitutional implications of the case.
I'm thrilled to be joined by two of America's leading experts on the Second Amendment. Neily is Vice President for Criminal Justice at the Cato Institute, and an adjunct professor at the University of Texas School of Law. Uh, Clark served as co-counselor in the landmark Second Amendment case, "District of Columbia Versus Heller" and his colleagues at the Cato Center for Constitutional Studies filed a brief in the New York case. Clark, it is wonderful to have you back on the show.
Clark Neily: [00:01:30] I'm so happy to be back, thank you.
Rosen: [00:01:31] And Miller is Melvin G. Shimm Professor of Law at Duke and codirector of the Duke Center for Firearms Law. Uh, with Joseph Blocher he's the author of "The Positive Second Amendment: Rights, Regulation, and the Future of Heller". And with Joseph Blocher and Eric Reuben, he filed a brief in the case on behalf of neither party. Darrell, thank you so much for joining.
Darrell Miller: [00:01:54] Thank you for having me.
Rosen: [00:01:56] Clark, let's jump right in. Uh, much of the oral argument before the Court focused on a technical question: Is the case moot? In other words, is there still live controversy for the Court to decide? Uh, we wanna delve into the merits of this case so listeners know what to think about it, but we do have to deal with the mootness question because the Justices have devoted so much time to it. Uh, tell us about uh, the argument that the case is moot because New York says it's no longer gonna enforce it, and tell us whether or not you believe that the case is moot.
Neily: [00:02:27] Right. So an important question at the outset uh, in, in public interest cases is whether there is a live controversy. In other words, do the parties really have a, a live and ongoing dispute that a court could remedy? And the argument is that in this case there is not one because the City of New York, uh, after winning in the lower courts and after the U.S. Supreme Court uh, granted review in this case and said, "Yup, we, we'll take a look at those decisions", the City of New York decided to repeal the regulation that was at issue in this case, and then the State of New York even uh, piled on and said, "Yeah, and furthermore you can never reenact that provision to kind of make it belt and suspenders." And so the, the City, who was the defendant in this case, takes the position, "This case is mute. There's nothing to fight over, because the law ... Um, we have repealed it. It doesn't apply to anybody anymore, uh, and there's nothing else for a court to do."
That's the basic mootness arguments. Now the plaintiffs disagree with that, and claim it's still a live case. And that was really the subject of most of the discussion at the Supreme Court argument yesterday morning.
Rosen: [00:03:23] Darrell, uh, the Justices uh, seem to be leaning toward holding the case moot, but what, what, what's the best argument that it's not moot and uh, which argument are you persuaded by?
Miller: [00:03:34] Right. Well, uh, uh, I am persuaded it's, the, the Court's probably leaning towards mootness here, um, but I suppose the, the best argument or the, the argument that seems to be uh, most persuasive uh, to at least the plaintiff's uh, council uh, is that the irregulation uh, in New York State ... Excuse me. In New York City, uh, requires a person uh, to essentially have unbroken travel with the firearm locked and unloaded in um, uh, in storage uh, from the home to another place uh, like a shooting range or another home, uh, but that it doesn't include things for like stops for coffee breaks or in the oral argument talked about, "What if you stopped at your mother's house?" That was a, that was by Justice Gorsuch, um, and that uh, both under the old regulation and under the new regulation, uh, the fact that the, there's not a, a permission to stop for a cup of coffee or at your mother's house means that there's a live controversy.
Uh, this is a pretty slender read. I, I really uh, doubt that there were many people that were persuaded by uh, that argument, but uh, it's probably the best one they have. One of the interesting things I'll just note here is there was some disagreement between the plaintiff's council and the Solicitor General who argues on behalf of the United States and came uh, out in favor of uh, the uh, plaintiffs. The, uh, [inaudible 00:05:11] in this case. There was a disagreement about whether um, the possibility of damages actually made this moot, with um, the Solicitor General really pushing that argument that there were some nominal damages perhaps available with an amended complaint, uh, and Paul Clement, who is a very skilled uh, Supreme Court advocate arguing for the plaintiffs uh, not really biting on that. Uh, so it was an interesting uh, tactical or strategic disagreement between the plaintiff's council and the SG.
Rosen: [00:05:41] Well, we will give We The People listeners what the people of the United States may not have, which is a discussion of the substantive merits of the case, and let's plunge right into them. Uh, Clark, Paul Clement in his very first words before the court said that, "Text, history, and tradition all make clear that New York's restrictive premises, license, and accompanying transport ban are unconstitutional." He added that, "New York is adopting a view of the Second Amendment as a home-bound right with any ability to venture beyond the curtilage with a firearm a matter of government grace," and he said that that is inconsistent with the history, text, and tradition of the Second Amendment. Uh, do you agree or disagree, and, and play out the argument for why you think that the New York law, if the Court were to consider it on the merits, would in fact violate the Second Amendment?
Neily: [00:06:35] Well, I certainly do agree. Uh, before I get to that, let me just say one more thing about mootness. I think there isn't the slightest doubt, and I think everybody in the courtroom understood perfectly well that if this had been, uh, let's say an immigration case or a reproductive rights case where the government defendant was trying to strategically moot the case by essentially getting, you know, lower court victories but then uh, systematically frustrating Supreme Court review by uh, you know, amending the policy, uh, I think all the Justices would have been on exactly the opposite side of the, the mootness argument. So I, I actually disagree. I think this case will be found to be a live controversy, and they will get to this question about text, history, and tradition um, on the merits, and I, I do agree with Paul Clement, uh, the text of the Second Amendment uh, protects the right to keep and bear arms. Uh, unless you're going to just essentially delete the text uh, "And bear", uh, or somehow fold it into the concept of keeping a firearm, uh, the natural connotation of "bearing" a firearm means to carry it around somewhere.
Um, and I think from an even more important standpoint, uh, the, the, the State, the, the, the um, attorney for the state, for the City of New York, made two very important tactical concessions during the argument that are, are certainly going to come back to haunt the, the city if this goes to the merits. Um, the first is that he conceded in, in response to a question from Justice Alito, that the repeal of the policy at issue um, did not make anybody unsafe, and then, so ergo uh, the policy itself didn't do anything to protect the public. So substantively uh, he more or less conceded that it doesn't protect the public or make them any more safe. Um, and secondly he acknowledged that uh, the ability to be proficient with a, with a firearm is, is implicit in the Second Amendment, and that in order to be proficient with a firearm you have to be able to train with it. You have to be able to take it to a firing range and actually use. And that implies at least some ability uh, to, to uh, carry uh, a firearm outside the home for at least some purposes.
So uh, I think that both as a matter of text, history, and tradition, but also perhaps even more importantly uh, from, from a litigation standpoint in terms of the concessions that were made uh, by the uh, lawyer for the City of New York, this is going to be a fairly easy question for the Court.
Rosen: [00:08:44] Darrell. Uh, do you believe that the New York law, if the Court were to consider it on the merits, uh, is or is not consistent with the Second Amendment? And uh, maybe start with uh, precedent. Uh, Paul Clement said, "This court recognized as much in Heller by recognizing the long history of handgun possession outside the home and by recognizing the government's interest in limiting possession in sensitive places, not every place outside the home." As a matter of precedent uh, as embodied in the Heller case, uh, do you think the New York law would pass muster or not?
Miller: [00:09:16] Right. Uh, so before I respond to that question, I think I uh, I am going to take the opposite position on, on mootness. Um, I'm not sure that that's actually true that uh, if the uh, plaintiffs, if the government gives everything that the uh, defendants want in a kind of irrevocable way uh, that uh, the Supreme Court is in a position to rule on the constitutionality of a statute that no longer exists uh, where the plaintiff, the plaintiffs get whatever they want. So I think I take a different position on the mootness question, uh, both descriptively in terms of uh, what Clark has said, but also uh, predictably in terms of where I think the Supreme Court would go. They would have to go to an extraordinary set of lengths to uh, alter or what is just general across the board rules on mootness uh, to really reach the merits in this case.
On the merits, though, uh, because that's the question that you asked me, um, uh, I think it's worth mentioning um, that there is a remarkable brief in the uh, opinion by uh, uh, uh, scholars of linguistics. And these scholars of linguistics say um, that uh, the initial decision in Heller about the mean ... The word "bear" means, "bear arms", was just wrong, uh, and that uh, if you look at uh, 18th Century usages of the words "bear arms" um, through big data sets of uh, 18th Century documents, uh, it's almost never used in the sense that the plaintiffs want to use it.
Now that doesn't mean that Heller uh, is uh, or should be overturned, but it does uh, erode some of the sort of textualist arguments that, "Well 'bear' just means 'carry' and that's what everybody understood it to mean in uh, the 18th Century", because this new data uh, that has come up after Heller seems to belie that.
As to your uh, direct question, uh, I think the, the strongest argument about the unconstitutionality of the New York City's regulation is that there has to be some kind of incidental rights associated with uh, the right to keep. Uh, it has to be that you have to be able to uh, take a firearm from the place of purchase or repair to your home. It has to be uh, that you have some sort of rights uh, to uh, practice with that firearm. Uh, and so in s- that sense I kind of ... Uh, and this, this argument was made by uh, some of the Amoche, and in fact maybe by the New York Ci- New York uh, uh, City itself in its concession, that there are some incidental rights associate with the right to keep, including transporting locked and unloaded firearms from uh, different places, and I think that's the strongest argument that this is in fact an uh, an unconstitutional uh, regulation.
Rosen: [00:12:14] Clark, let, let's delve into the text, and, and the meaning of "bear" arms. So We The People listeners know that the National Constitution Center's interactive Constitution has a wonderful feature called The Drafting Table where you can see early drafts of the Amendments in the Revolutionary or uh, State Constitutions. And I'm just looking at a few of them right now. The Massachusetts Constitution of 1780 said the people have a right to keep and bear arms for the common defense. New Hampshire said, "No person who is cons- conscientiously scrupulous about the lawfulness of bearing arms shall be compelled thereto, provided he will pay an equivalent." Uh, tell us based on these revolutionary-era texts uh, how you understand the original meaning of the phrase "bear arms".
Neily: [00:13:02] Well I certainly agree that uh, reasonable people can see it differently, but it really can depend on what sources uh, you choose to look at. Uh, another source you did not mention is the Constitution of the State of Pennsylvania which specifically [and did at the time] uh, protect the right of the citizens to bear arms in defense of themselves and the state. One argument that gets made here is that bearing arms really has a purely military connotation, so it really only uh, comes up in or only applies to bearing arms you know, in military service in defense of your country, but the language in the Pennsylvania Constitution uh, undercuts that assertion, because again it says that the right of the citizen to bear arms in defense of themselves and the state shall not be questioned.
So there's no question that at least some contemporaneous usage back uh, uh, during the relevant era uh, used the term "bear arms" in an individual, personal, self-defense capacity or, or connotation, and that, that is not the exclusive interpretation one could give to that terminology in the Second Amendment, but it is certainly a plausible ... And I personally think uh, more than plausible, I think absolutely persuasive interpretation of "bear arms", um, particularly when compared with Founding Era practice. You have to keep in mind how much different a role uh, firearms played during the Founding Era than they do now. Uh, I would say that it's, it's a fair th- Uh, uh, you know, comparison or a fair description to say that uh, guns back in the Founding Era, the, the late-18th-Century were like today's smartphones. If you were going more than about 50 or 100 feet from your house, you took it with you, and you took it with you virtually everywhere. They were so commonplace, it was so much a part of everyday life, that I think the idea that it might be the case that the government could restrict your ownership of a firearm to a specific place like your home, I think that the ... Uh, o- virtually any American during the Founding Era would have found that flabbergasting and, and frankly kind of ridiculous, given the role that firearms played in, in Colonial-Era life.
Rosen: [00:14:55] Darrell, as, as Clark says, the Pennsylvania Constitution did recognize an individual right to bear arms, as did the Vermont Constitution, and I'll read that language in a second. Those were the only two. Two out of the thirteen states recognized an individual right to bear arms uh, for self defense. The, all the other 11 talked about some kind of collective right of the militia not to be displaced by an overweening federal government. Uh, and, and the Pennsylvania language, just to reinforce uh, Clark's point, is uh, that the people have a right to bear arms for the defense of themselves and the state. And then the Vermont Constitution is the only other individual rights uh, like language that says the people have the right to bear arms for the defense of themselves and the state. What, what are we to make of that? The fact that it's two out of uh, thirteen that use that individual rights language and does that textual history cast much light about the scope of the Second Amendment today?
Miller: [00:15:51] Right. And I think uh, I mean it's an excellent question, and um, uh, Clark is right, uh, there are some states uh, that ha- talked about the right to bear arms in a much more personal uh, individual-rights frame. Uh, I think we have to start with what uh, Heller says that it's doing and what Justice Scalia, the late Justice Scalia, said that he was doing, which was he was applying an original public meaning interpretive approach to what the Constitution says. An original public meaning means we go to the sources in the 9th ... Excuse me. The 18th Century, and find out what was the most common use of terms in that time. Not outlier use of terms. Not rare use of terms. But what was the most common use of terms? How would uh, terms be commonly understood? And that's why I think uh, this new linguistic evidence that is using big data techniques to figure what uh, how often and frequently did the term "bear arms" get used in the personal individual sense as opposed to a collective or military sense is really, really uh, important.
Now as I've said before, there's nothing to say that some other kind of frame for Constitutional interpretation ... For example, uh, that things changed with Reconstruction and the 14th Amendment in 1868, or some kind of living Constitution approach to the Constitution can't support the idea that no matter what uh, the Framers would have understood or the Framing Generation would have understood, the law of now is that the right is personal and individual in some sense. Um, but I am just taking Justice Scalia at his word when he says, "This is how you do constitutional law", and originalism is about what was the most common use of these terms at the time? And you don't look at outlier uses. You look at the most common use of the terms.
Rosen: [00:17:49] Well, Clark, if the Second Amendment does have an individual rights component, as Heller clearly said it does, and if it protects some right to carry guns outside the home, as people on both sides seem to concede that it does, what is the scope of that right to carry outside the home? The New York law is an extreme one. It seems that no other state had such draconian carry restrictions. But how would you define the scope of the right to carry outside the home, and what, if any, are its limits?
Neily: [00:18:20] Well, I think it's pretty clear that the, the scope of the right to carry outside the home is a right that is uh, enjoyed by law-abiding citizens, to carry a firearm, or at least certain firearms. I kn- I think we can argue about you know, fully-automatic weapons later. I don't think the Supreme Court is ever going to protect those. But let's say commonly-owned firearms. Uh, you know, like a semi-automatic pistol. Outside of the home, uh, for lawful purposes. No, we know for example from Heller there was dicta that said that uh, the government may restrict uh, people's abilities to carry weapons into sensitive places. Uh, so for example like a school building or a courthouse. Uh, but the implication um, of the Second Amendment uh, is fairly open-ended. "Keep and bear arms." And if the Second Amendment includes a, a kind of a self-defense uh, uh, explanation or you know, a uh, a meaning, then you'd wanna be able to carry a uh, uh, a firearm wherever you might need it to protect yourself.
And just to give one example, um, think about Reconstruction Era. Think about the Jim Crowe Era. Think about a time in our country um, when the freedmen, uh, newly freed black people who had been enslaved previously were out there trying to enjoy their civil rights, and they're being terrorized uh, by the Ku Klux Klan, for example. Is it going to be sufficient for them to have a gun at home? No, of course it's not. They're going to need to be able to have a gun wherever they go in order to protect themselves from that uh, uh, uh, kind of uh, sudden violence and terror. Uh, and so uh, I ... And same thing would have been true during the 18th Century, but for different reasons. If you're going to go outside the home in the 18th Century, there is no professional police force. You might run into a, you know, a robber. A highwayman. You might run into wild animals. You might run into Native Americans, uh, with whom we are still fighting. So uh, the connotation of the Second Amendment is that people have the ability to effective self-defense, and that implies very strongly the ability to carry a firearm for, for lawful purposes uh, wherever you go, with very ... Certain very narrow exceptions, as alluded to by Justice Scalia in the Heller opinion.
Rosen: [00:20:18] Thanks for stating that proposed rule so clearly. Darrell, in your piece, "The Conservative Case For A Home-Bound Second Amendment", uh, you said that the historical record on public bearing of weapons is marked by ambivalence, not consensus. The consistent thread from the 18th and 20th centuries to today is disagreement about whether arms should be permitted in public, and widespread regulation and even prohibition of the practice, and for that reason you reject the conservative proposal that a right to have a firearm in the home and a corollary right to bear arms incidentally for purchase, service, and use of emergency should be recognized, and you say that whether guns should be permitted outside the home as a matter for citizens to decide among themselves. Tell us more about that argument and, and also what your vision of the positive uh, Second Amendment is.
Miller: [00:21:12] Yes, absolutely. So um, I ... Clark is absolutely correct that the 14th Amendment, um, which doesn't get the kind of respect that it's due in Second Amendment uh, litigation or argument, um, is really key here. Um, uh, before I go into that, though, I do think it's fair to say that right now uh, as sor- as far as I know there is no uh, state in the Union where it is categorically prohibited to uh, carry a firearm. Every state in the Union has some mechanism uh, for allowing somebody to uh, obtain uh, a uh, a license to carry a firearm, concealed or unconcealed. And some states have no licensing requirement at all. Uh, so the real uh, nature of the debate is not really about um, whether the Second Amendment protects uh, gun carrying outside the home, but what kind of licensing is permitted. Because right now, every state through uh, its own legislatures have, have permitted some mechanism of uh, public carry. Uh, in terms of the 14th Amendment, I think it's uh, you know, important to sort of uh, uh, uh, make the, make the point ... And, and as I've said in The Conservative Case uh, For the Home-Bound Amendment, uh, there's lots of ambivalence. So the 14th Amendment makes the right far more individual. That's uh, pretty unquestionable. Uh, but it's also happening at a time of serious uh, public strife.
Um, uh, the uh, argument that Clark made about uh, freedmen being able to bear arms is true, um, but there's also regulations at the same time that tries to keep people uh, like the Klan for example, from claiming that they have rights to bear arms as uh, kind of a military operation to terrorize freedmen. Uh, and so I think that uh, the premise here is that uh, if you look uh, at the sweep of America in the, the 1800s, you have uh, some very permissive regulations uh, about guns, and you have some very, very restrictive ones, including some states and territories that uh, categorically forbade uh, firearms from being carried at all in uh, in, within town limits. Even Tombstone, Arizona had such a regulation. Uh, so uh, I think um, I think that the mixed uh, history means that some other kind of decisional tool is necessary. Um, and uh, that's uh, where I think uh, some ... At least some deference to the considered judgment of uh, uh, the political branches is, is really necessary.
Rosen: [00:23:56] Clark, I hear Darrell saying, as he just did very clearly, that uh, some deference is necessary. And therefore, uh, uh, Justice Sotomayor in the oral arguments suggested that the Second Amendment should be seen, like uh, the First Amendment, in the sense that reasonable time, place, and manner restrictions are permissible, rather than viewing a kind of dichotomy between strict scrutiny, where nearly all regulations fall, and more deferential scrutiny, where they might pass. Justice Sotomayor suggested that you look case by case about whether the time, place, and manner restrictions are reasonable. Do you agree with that approach or not? And uh, what, what, and uh, and, and if not, what's the alternative?
Neily: [00:24:41] Well, I think the time, place, and manner of framework that Justice Sotomayor proposes is unhelpful in this setting, because it really was designed for a much different setting. It was designed to address issues that arise I think rather uniquely in the context of free speech, uh, and it's very ... I think it's highly debatable ... You know, you can characterize essentially uh, infringement of constitutional rights, any restriction on liberty, as just being, "Oh, this is just time, place, and manner." Right? Because if you don't completely prohibit some kind of an activity, you could ... Take for example the Supreme Court uh, trying to answer the question of whether there's a right to uh, s- ha- intima- intimacy with a person of the same sex. You could easily have characterized the Texas prohibition on, on gay sex as just, "Oh, that's just a time, place, and manner restriction, on the manner in which you can have personal intimacy."
So I think it's insense- un- it's both unhelpful and kind of rhetorically stealing a base to suggest that uh, any restriction on liberty, including of liberty to carry a gun, can just be shoved into this time, place, and manner framework with the sort of unstated assertion that you know, kind of because even free speech is subject to some time, place, and manner restrictions, therefore it follows that any restriction of any other right is just a reasonable uh, restriction of a time, place, and manner. Uh, it do- as I said I think it's an unhelpful framework, and I think the real question comes down to a very simple point, and it's this: Is the Second Amendment like other rights, like most of the other rights specifically articulated in the Bill of Rights, one that uh, requires the government to carry the burden of showing that any restriction on that right is truly necessary, or truly advances some important public policy. That really I think is the crux of the issue, uh, and whether the government can or cannot make that showing should be how, what, what determines the answer to the constitutional challenge.
So again, trying to shave the Second Amendment into different kinds of doctrinal frameworks like time, place, and manner, I think it's unhelpful um, at best. At worst it may be trying to steal a rhetorical base. And the question really comes down to can the government justify this law the way it has to justify other fundamental rights, or can it not?
Rosen: [00:26:53] Darrell, now we're getting into the nub of the disagreement among justices like Justice Thomas, who have complained that the Second Amendment should not be treated like a second-class right and like the First Amendment, any laws that infringe on it should be subject to the closest judicial scrutiny. Uh, two other justices, including Justice Sotomayor, who argue for more deferential standard overview and are willing to evaluate uh, time, place, and manner restrictions on a case by case basis. Uh, what test do you prefer, and how can you help out listeners understand how they should choose a standard of scrutiny?
Miller: [00:27:31] Yeah. Uh, a great question, and um, I, I think this is where [inaudible 00:27:36] Clark and I uh, at least our sort of thoughts on this somewhat converge, which is I think we're both in agreement that no right is absolute, um, and that some kind of questions about the Second Amendment's scope or coverage can be answered with sort of categorical rules of various kinds. Uh, so for example we would never say that a bank robber who used a firearm to rob a bank uh, has some sort of Second Amendment claim uh, to be able to use the firearm to do so. It's just categorically outside of what we would think of as Second Amendment coverage. Similarly, some kind of arms are uh, categoric outside of Second Amendment protection. Uh, nuclear missiles or uh, biological warfare agents, for example. Uh, and then we, we might say that uh, there are some kinds of carrying that are categorically outside uh, the coverage of uh, the Second Amendment as well. And so um, there is that sort of first step, uh, typically linked to some kind of historical regulation, that says, "Are we even talking about a Second Amendment right or not?"
And then the, the real question is after you answer that question, are you allowed to go to a second step? That is, if the history is unclear, if the history is muddled, uh, if it isn't quite sure, if you're not quite sure what level of uh, analog to use ... Uh, for example is carrying a gun in an airplane uh, like carrying a gun on a stagecoach or on a horse? If you really can't make that kind of question, then the second step is uh, what I think Clark agrees, is uh, some kind of showing on the part of the government about uh, why you are uh, uh, regulating guns in this way. Uh, the airplane example, obviously there's no airplanes in 1791 or 1868 uh, when the 14th Amendment is ratified, uh, but it's, it seems pretty hazardous in a closed compartment uh, for uh, anybody to carry a loaded uh, firearm. And so there, it has to be some sort of government showing. And this is usually where you get into the debates about the level of scrutiny. What kind of showing must the government show? Uh, how much evidence must it produce? Uh, what is the balance between uh, the rights interest of the gun bearer who wants to take the gun on the plane uh, and the government's interest in protecting uh, airline travel.
Uh, and that's where we get into the issues uh, about uh, either time, place, or manner, or other kinds of uh, showings by the government of why they are uh, restricting uh, the carriage of firearms.
Rosen: [00:30:26] So Clark, as you hear Darrell's proposed standard, first you look for a historical analogy and if the history doesn't clearly answer it then you have to balance the interests of the individual against the interests of the government, and of course you have to identify the standard of scrutiny, uh, what do you think of that standard?
Neily: [00:30:44] Well I think this is a real challenge for the Supreme Court, because generally speaking rights that are specifically listed in the Bill of Rights are considered to be fundamental rights, and the government is generally held to a standard of strict scrutiny, meaning the government has to show that it has a compelling interest in regulating uh, the, the conduct in question and that the uh, way it has gone about uh, regulating that conduct is narrowly tailored to promote the government compelling interest. Um, I think it's fairly clear that the Second Amendment uh, uh, is uh, exprissly ... I, I'm sorry. It's explicitly mentioned in the text of the Constitution, so that would tend to point in the direction of strict scrutiny. But I also think the Supreme Court is very uninterested in being in the business of uh, providing the same kind of review, let's say, for, for gun regulations that it does routinely for speech regulations.
So I'd be quite surprised, frankly, if the Supreme Court decided that gun regulations are subject to this highest level of constitutional scrutiny, strict scrutiny, and I would expect to see something more along the lines of some form of, of what we call intermediate scrutiny, meaning that the government still has to have an important interest that is genuinely being advanced by the regulation in question, but it gets a bit more leeway uh, in, in formulating those regulations than it might with something like uh, uh, a speech regulation. So I think for a variety of reasons that that's where we are likely to shake out, regardless of whether that's the approach that would be the most faithful, uh, both to uh, constitutional text and to uh, standard Supreme Court doctrine in this area. Uh, I think it's gonna be a pragmatic uh, approach the Court takes that tries to balance the Court's lack of interest in or, or, or, or pref- preference not to be really significantly involved in, in shaping gun policy in this country, but also recognizing that the Second Amendment and specifically Heller's interpretation of the Second Amendment uh, is uh, a, a part of our constitutional law, just like any other right.
Rosen: [00:32:41] Uh, wow. Uh, thank you for that. And dear We The People listeners, every time we have these great Second Amendment discussions, I'm struck by the fact that the constitutional disagreement between the two sides is less dramatic than I had expected. You just heard Neily, one of America's leading advocates of the Second Amendment, uh, predict that the Court is likely to settle on a version of intermediate scrutiny for Second Amendment rights. And just to review the wonky doctrine, 'cause there's not much of it, intermediate scrutiny is, as Clark just said, means that the regulation has to be substantially related to an important governmental interest. By contrast, strict scrutiny, reserved for things like the First Amendment or for laws involving racial discrimination, says that the law has to be necessary to achieve a compelling governmental interest. That may seem like hair splitting, but those are really significant differences in how closely the government evaluates the law in question. And Clark just said that he thinks that intermediate scrutiny will be where the Court lands. Darrell, do you agree with that quite interesting prediction? Um, do you think that intermediate scrutiny is the right standard? And if that's what the Court is gonna ultimately adopt, then what's all the fuss about?
Miller: [00:33:48] Right. Well I think Clark ... Uh, I, I don't want to put words in his mouth, but I'm assuming that he's making a predictive judgment um, that due to the difficulties of sorting out all the sort of empirical evidence, all the historical evidence, uh, uh, and the fact that intermediate scrutiny tends to be a kind of a uh, conventional way to address really sticky, thorny constitutional problems, I think he's just predicting that's where the Court will land. I, I, I think uh, and again I'm putting words in his mouth, but uh, you know, in his defense I think what Clark would probably agree is that the kind of intermediate scrutiny that uh, the uh, gun uh, rights uh, advocates want applied if they want intermediate scrutiny applied at all is something that's of real intermediate scrutiny, uh, that requires a real showing of some kind of uh, regulations uh, and its benefits as opposed to speculation. Um, that was the key uh, uh, angle of disagreement on the merits in the briefing uh, in the [inaudible 00:34:57] case uh, where was the showing that this regulation was actually going to help safety, and in fact uh, it seems like the uh, New York City conceded that it really wasn't about uh, safety or didn't seem to have a, a good safety uh, hook to it.
Uh, I will mention that one of the problems here is there's a disconnect between regulations that might have a historical provenance uh, and any kind of a data would show its efficacy. Um, so um, uh, for example Justice Scalia himself says in the Heller decision that presumably concealed carry can be completely prohibited. Uh, that concealed carry is categorically outside of the Second Amendment's scope, because that's a dangerous and unusual manner of carrying weapons. Uh, but there's no evidentiary uh, showing about the efficacy or not of concealed carry. Uh, and so I think to the extent that the Court ends up adopting this, it will have to be blended with some kind of historical approach uh, that also looks at the history of uh, various regulations in this kind of two-part framework that has arisen in the lower courts.
Rosen: [00:36:07] Clark, clarify your views about intermediate scrutiny in any ways you like, uh, and then tell our listeners what kind of laws would be invalidated if the sort of intermediate scrutiny that you support uh, were applied?
Neily: [00:36:26] Thanks for that opportunity. I, I, uh, it is important to keep in mind that I'm making a pragmatic and predictive point, uh, as Darrell notes, and not uh, you know, sort of offering a pristine or ivory tower version of what the Second Amendment should get. I'm saying what I think it will get. The reason I think that the Second Amendment will receive ultimately intermediate scrutiny is primarily because um, I think the Supreme Court would understand very well that virtually every gun regulation on the books today would be struck down under strict scrutiny. There's, there's, in order to survive strict scrutiny, among other things, you have to show that the regulation in question is in fact promoting a compelling governmental interest, and there's a vast body of empirical uh, studies that demonstrate pretty conclusively that uh, gun regulations ... There's, there's very little if any connection between gun regulations and any positive public policy outcome. So if the government, whether state or federal government, were in a position of having to show that a particular regulation actually advances some compelling government interest, like public safety, uh, virtually everybody knows they won't be able to do that.
And so I think the Court is just want ... Is gonna want to avoid putting itself in that position, where it's going to have to strike down virtually every gun law in the country as it would I think pretty clearly have to do if it chose strict scrutiny as the applicable standard. So I think that pushes the Court in the direction of intermediate scrutiny. Uh, there's uh, sort of a whole subset of different sort of ways of describing what that requires, this intermediate scrutiny, but the touchstone, the touchstone for all forms of so-called "heightened scrutiny", including intermediate scrutiny, is that the burden is on the government to come forward with two things: a genuine explanation of what it's trying to achieve, not some post-hoc rationalization but a genuine statement of its true end, and then at least some evidence that the regulation in question is in fact advancing that end. And that's going to be extremely difficult for the government to do, I think, with respect to many, many gun regulations. I think it will be very difficult with respic ... Respect to limitations on high-capacity magazines, on so-called assault weapons, and perhaps the biggest sort of elephant in the room, uh, are the so-called discretionary, discretionary uh, permitting systems.
So there's essentially two ways of getting a concealed carry permit in America today. One is the majority of states. About 38 states. It's like a driver's test or a driver's license. If you meet some set of objective statutory criteria, you get the license. But in about a half a dozen or maybe eight states, including California and New York, it's up to the complete discretion of local law enforcement. Your local police chief gets to decide on a whim whether or not you get a permit. And that's gonna be very difficult to uphold. There are no other constitutional rights that I'm aware of the exercise of which depends on the whim of a local official. And particularly when we look at how that discretion has been exercised in places, for example, like New York City, it's very difficult to get a concealed carry permit in New York City, and very few people have them. But lemme tell you some of the people who do have them. Donald Trump got a concealed carry permit in New York City. His lawyer, Michael Cohen got one. Bill Cosby got one. Howard Stern, the shock jock, got one. Art Salzberger, the former publisher of the New York Times.
So if you have a system where you're essentially handing out concealed carry permits to celebrities um, but virtually no one else, it's going to be very difficult to show that that permitting system uh, comports with any form of intermediate scrutiny. And if that is where the Supreme Court ends up, I think we're gonna see a lot of these regulations fall by the wayside.
Rosen: [00:39:56] Wow, that is a fact that uh, I didn't about Art Salzberger and Donald Trump, that they both-
Neily: [00:40:02] [laughs]
Rosen: [00:40:02] Share [laughs] concealed carry permits from New York City. Uh, Darrell. Uh, Clark just said that he believes that under intermediate scrutiny with bite, courts would ask for a genuine statement of interest and evidence that the regulation and fact achieve that genuine end, and he said that that would call into question high-capacity magazine guns, assault weapons bans, and discretionary permitting systems like those in New York. Uh, do you agree or disagree, and do you think that those three regulations should be sustained under a proper reading of the Second Amendment or not?
Miller: [00:40:44] Uh, uh, I mean it's an excellent point, and I think this is again where uh, there might be some slippage between what we might think of as uh, sort of historical text history and tradition approach and a scrutiny approach, because in fact um, the history of, of licensing, the history of regulation of dangerous and unusual weapons uh, and uh, and other kinds of um, uh, regulatory measures are very, very old. Uh, going back in fact to the uh, pre, uh, revolutionary era in, in England. Um, so for example um, uh, some states uh, required uh, good cause. Uh, Texas had a regulation for example that required good cause for carrying firearms. Um, in Tombstone, Arizona, which I had mentioned before, uh, you had to get a license from the local sheriff if you wanted to carry uh, guns in town. And I think uh, one of them ain uh, points um, that my colleague Joseph Blocher uh, wrote about in a piece called Firearm Localism is that there has always been a uh, quite a stark uh, difference between the regulation of firearms in uh, urban areas an- as opposed to the country. Uh, so as far as tradition goes, uh, I think uh, that it's not uh, 100 percent clear uh, that a text, history, and tradition approach wouldn't actually support some of these regulations, especially uh, to the extent that they are different uh, between cities uh, and in rural areas.
Uh, but even if we think about in the uh, level of scrutiny, um, I think uh, most people have uh, intuitions that the hazards to others, the hazards to life and limb of uh, innocent bystanders and things are different in crowded areas, including in dense urban areas, uh, as opposed to the country. Um, and so that there are empirical justifications for these kinds of regulations, uh, especially as between cities and, and, and the country. Um, so um, you know, I think, uh, I think where probably Clark and I agree is that to the extent that it looks like um, that the permitting system is uh, the locus of uh, just uh, uh, you know, corruption or uh, [inaudible 00:43:13] or other kinds of um, um, uh, graft or favoritism, uh, that is rife for uh, reform. Uh, the real question then is it supposed to be reform through ordinary legislation or constitutional law?
Rosen: [00:43:29] Thanks for that, and for helping us understand that under intermediate scrutiny, people can reasonably disagree, as both of you have, about whether uh, assault weapons bans, discretionary permit systems, and other regulations on high-capacity magazines might stand or fall. Clark, help us understand what other broad categories of regulations might be challenged under intermediate scrutiny with bite, maybe beginning with uh, public carrying laws uh, that are less extreme than the ones that were adopted in New York.
Neily: [00:44:02] Right. So I do think the, the number one target would be the states that make it very difficult to get a permit to carry uh, a pistol outside the home. Um, and certainly a, a state that has a regime that leaves it to the whim of a local law enforcement official to decide who gets a permit and who doesn't, that's gonna be very hard to defend under any form of heightened scrutiny, and I think those would go down. Um, another issue that, that's kind of interesting that's been percolating somewhat is whether the Second Amendment protects other uh, weapons besides firearms. There's been a case involving pepper spray out of Massachusetts, there's one going on right now uh, with stun guns. Um, even uh, a case involving nunchuks, which is a, a Japanese martial arts weapon out of New York.
Um, but knives are a big deal. There's a ... Up until just recently New York City had um, a, a, um, it was a crime to carry a, basically a folding knife. The kind of knives that you see in rural America. Uh, uh, almost every man over the age of you know, 12 is carrying one in rural America. Those were illegal in New York, and they were uh, that law was enforced in a highly racially disparate way, uh, where somebody might be coming home from their job you know, working at, as a, on, in a theater where they have to carry a knife in order to trim uh, set designs or they're a carpenter, or something like that. And uh, basically if a police officer could flip the knife open with the flick of his wrist then it was illegal. And um, so there's another uh, that's another issue that people don't, doesn't come to people's minds, is does the Second Amendment apply to other kinds of um, uh, personal defense weapons uh, besides firearms. So there's a lot of ... And then of course assault weapons bans are very much in the news. It's unclear whether the, the, those, those laws will be uh, increased or expanded.
Um, but so if I had to really sum it up I would say it's going to be a question of um, whether the few remaining concealed carry states that are discretionary, or on the whim of a local law enforcement officer, are those going to stand, and will so-called assault weapons bans stand, and does the Second Amendment extend to other arms uh, besides guns? And uh, I think uh, all of those laws restricting all of those kinds of activities are going to uh, have uh, a lot of trouble surviving intermediate scrutiny.
Rosen: [00:46:05] Darrell, on Clark's three points, uh, concealed carry states that are discretionary, assault weapons bans, and bans on other weapons that are not firearms. Uh, how do you think that this court is likely to rule under the heightened intermediate scrutiny that the justices seem inclined to adopt?
Miller: [00:46:28] Uh, that's a great question, and I ... I think with the concealed carry discretion, uh, the two-part uh, framework that I've uh, discussed before is probably the most applicable. Um, and uh, you know, one question would be the sort of tradition analysis. That is, is there a tradition of discretionary licensing? Uh, and again I think that there is some argument that uh, there is a history uh, of uh, a kind of discretionary licensing at least in some places in the United States historically. But if the Court isn't going to uh, adopt the constitutionality of the discretionary licensing regime under uh, a historical analysis, then I think under intermediate scrutiny, uh, it might be uh, somewhat more difficult and uh, for the government to show that uh, the special need requirement uh, is advancing some sort of purpose, um, uh, that uh, it has to do with sort of public safety or, or so forth. Now it doesn't mean it's insuperable, I just think it'll be um, more difficult. Um, and uh, you know, some of the arguments would be uh, for example that um, it's dangerous to have untrained persons there, so to the extent that the discretionary licensing system you know, requires training or some other kind of mechanism, um, I think that will be part of a calculus.
As for the weapons themselves, uh, Clark has made a really good point, which is um, arms aren't just firearms. Um, and this leads to some really intriguing issues. Now the Supreme Court in Heller said that the weapons that are protected are weapons in common use, and for that reason said that handguns for example are protected. Uh, but this leads to a huge circularity problem, which means that anything is uh, in common use uh, uh, becomes constitutionally protected, so that you have to regulate any kind of new extremely lethal weapon uh, or hazardous weapon before people start buying it. Um, and uh, some people have tried to sort of break out of this uh, circular argument uh, by talking about, well, common use for what kind of purpose? Common use for whom? Um, and I think uh, that's uh, the kind of analysis, rather than intermediate scrutiny, that the Court might approach or just try to work out with respect to what kind of weapons are protected.
The final thing I want to say about that ... And he mentioned knives and things, is the one unknown here is the, the rapid um, change in technology. Currently there is no uh, pressure on the gun industry, uh, really to make firearms uh, less uh, dangerous. Less lethal. I mean one of the purposes of a firearm is to be lethal. But you can imagine uh, through different kinds of technology, uh, making guns uh, less receptive to uh, theft. Less receptive to being used by criminals. Uh, less receptive to uh, misuse by children and so forth. Um, but we really haven't tested the bounds of what that technological change would mean. And it really raises an interesting question. That is, to the extent that weapons that are safer, uh, even for the core lawful purpose of self-defense that are on the market, do they end up rendering other kinds of weapons that are less safe there- therefore unprotected? And that's a really just a, an interesting issue that we might have to face in the next uh, 20 to 25 years, uh, as the Second Amendment [inaudible 00:50:14] develops.
Rosen: [00:50:15] Many thanks for that. Well, it is time for closing arguments in this extremely illuminating uh, debate and discussion about the scope of the Second Amendment. And Clark, the first uh, one is to you. Uh, tell our listeners why you believe that the New York law that the Court is considering violates the Second Amendment if the Court reaches the merits.
Neily: [00:50:38] Right. So I think it's clear that the Second Amendment or uh, uh, that the law in New York is inconsistent with the Second Amendment uh, for two reasons. First because New York's lawyer conceded as much at, at the podium before the Supreme Court. Conceded that it doesn't uh, advance public safety, um, and that there is some right to, to transport uh, firearms outside the home. I think those concessions will ultimately uh, sink the case for New York if the Court does get to the merits. I also think that's a correct interpretation of the Second Amendment uh, substantively. Um, it doesn't just say people have a right to keep arms. It says people have a right to keep and bear arms. And we don't do head counts among founding era state constitutions and other documents to see what rights are and are not protected. Um, the right ... Whether you have a right of free speech or free press or the right to assemble doesn't depend on whether or not enough state constitutions happened to mention those rights. So that's not a mode of textual analysis that we apply in any other setting, and the Supreme Court's not going to apply uh, that highly restrictive uh, uh, mode of analysis to the Second Amendment.
I think at the end of the day the question is going to be whether uh, the government in any case, including the New York uh, case before the Court now, has the ability to come forward with evidence to show that the particular regulation that is under consideration actually does advance some important government interest. If that becomes the new standard for the Second Amendment. And it would be a new standard, because most of the lower courts have been applying a far more lenient standard that really is indistinguishable from the lowest standard of review, which is called rational basis review. If we get some form of heightened scrutiny going forward, then the volume of regulations, of gun regulations that are struck down by the courts, will increase. Do I think it will be a massive increase? I do not. But purely for prudential reasons, I just don't think the courts want to be deeply involved in shaping gun policy in this country. But a larger number of gun regulations will be struck down under a more searching form of scrutiny if the Supreme Court decides to go that way in this case, and that really is uh, the most interesting thing about this case.
Rosen: [00:52:41] And Darrell, the last word is to you. Tell our We The People listeners whether you believe that the New York regulation violates the Second Amendment or not.
Miller: [00:52:51] Great. Um, well I think I have to respond to Clark, uh, because it's not just a headcount, right? Again, if Scalia's approach is the right one, and I'm not saying that it is, it's really just trying to figure out what common speakers of English would have understood words to mean at the time that they were spoken. Uh, that's not a headcount, that's a falsifiable empirical statement. Um, the Constitution of the United States uses the word "domestic violence". Uh, you could find one or two maybe outlier usages of "domestic violence" to mean um, wife battery in the founding era, but that's not what that term was uh, routinely used for uh, at the founding era. So it's not just a nose count, it's, it's a falsifiable empirical fact. Um, uh, the issue that uh, you asked me to address directly, which is you know, whether it's constitutional or not, uh, I'm going to um, refer to uh, what I filed uh, in the Amicus case, which is um, I'm not sure how intermediate scrutiny would apply in this particular case.
What I think is that if the Supreme Court is going to uh, make a decision about uh, uh, an approach to the Second Amendment, it should use a fairly conventional legal analysis. That conventional legal analysis asks uh, a couple questions. The first is uh, a scope question. Are we even dealing with a uh, Second Amendment matter? That's usually guided by something like his- uh, historical analysis. Uh, and then when uh, you're not certain about that answer, you go to some form of uh, scrutiny. Uh, to the extent that the plaintiffs in this case and other Amici wanted something that is far more rare uh, and far more unsettling to the, the doctrine which is uh, only those regulations that existed in 1791 when the Second Amendment was ratified are constitutional and any regulations that didn't exist in 1791 are unconstitutional, uh, or you must have a close analog, to the extent that that is the kind of test that um, some want uh, the Court to adopt, I think that is untenable, uh, and isn't applied to any constitutional right. So to the extent that the Court adopts uh, such a strict text history and tradition text, it will be giving Second Amendment rights uh, super-protection, not ordinary constitutional protection.
Rosen: [00:55:23] Thank you so much, Neily and Miller for a really illuminating uh, civil and vigorous discussion of the scope and meaning of the Second Amendment. Clark, Darrell, thank you so much for joining.
Miller: [00:55:38] Thank you.
Neily: [00:55:39] Thank you.
Rosen: [00:55:50] Today's show was engineered by Kevin Kilburn and produced by Jackie McDermont. Research was provided by Lana Orick, and Jackie McDermont. Homework of the week: Dear We The People Listeners, of course it's the books of our two great panelists, Neily's "Terms of Engagement: How Our Courts Should Enforce The Constitution's Promise of Limited Government" and Miller's "The Positive Second Amendment: Rights, Regulation, and the Future of Heller." Dear We The People listeners, I hope you're doing your homework, and if you are, can you please write to me? [email protected] and tell me what you thought of the book in question, or just tell me that you read it. It is urgently important that you continue to cultivate your faculties of reason and to educate yourself during the precious days between podcasts. Don't be idle but continue to learn and grow. And please rate, review, and subscribe to We The People on [inaudible 00:56:42] Podcasts and recommend the show to friends, colleagues, or anyone everywhere who like you is hungry for a weekly and daily dose of constitutional learning and debate.
And always remember, as the holiday seasons approach, that the National Constitution Center is a private nonprofit. We rely on the generosity of people from across the country who are inspired by our non-partisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work including this podcast to constitutioncenter.org/donate.
Sending Thanksgiving gratitude to all of you for listening and learning on behalf of The National Constitution Center. I'm Rosen.
