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DC gun case oral arguments with the Smart Guys substituting as counsel.

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HH: Yesterday in the United States Supreme Court, a very important lawsuit was heard, the District of Columbia Versus Heller about gun control. We have with us the Smart Guys, Erwin Chemerinsky from Duke University Law School of the left, John Eastman, Dean of Chapman University Law School from the right. Together, they’re going to field the questions that were asked from the Bench yesterday. I’ve got the audiotape of the justices asking questions. Erwin, you don’t mind representing the District of Columbia, do you?

EC: Not at all. I filed an amicus brief on their behalf.

HH: Those gun-seizing liberal bureaucrats. And John Eastman, you don’t mind defending the Constitution again, do you, in representing Heller?

JE: No, that’s my primary mission on this show.

HH: All right. Let’s get to Justice, Chief Justice Roberts asks the first question to Erwin Chemerinsky, District of Columbia counsel. Question number one:

JR: It’s certainly an odd way in the 2nd Amendment to phrase the operative provision. If it is limited to state militias, why would they say the right of the people? In other words, why wouldn’t they say state militias have the right to keep arms?

HH: Erwin?

EC: Well, if you look at the entire text of the 2nd Amendment, it’s clear about the right to have guns for militias. It speaks of keep and bear arms, which has relationship to militias at the time. In fact, in James Madison’s initial draft, there was language that said that people shouldn’t have to serve in the military if they’ve got conscientious objections. That makes it clear that that’s what this amendment was about.

HH: Justice Souter for Dean Eastman:

DS: It had nothing to do with the concern of a remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves, bears and grizzlies, things like that?

JE: Of course it had to do with that. I mean, it’s actually served several purposes. It allowed for us to have a well-armed militia in the way that my learned counsel opponent has just described, to be called up immediately to help suppress insurrections, or repel a foreign invasion. But it also allowed us to defend ourselves, and more importantly, the provision is also there to make sure that the citizenry, and by militia, they meant the entire adult male population. It was the citizenry. Those terms were used interchangeably, because everybody was part of the militia, that a well-armed citizenry would insure against governmental tyranny. And that was a part of the provision as well. It makes no sense to say that if we’re going to try and check governmental tyranny, that the only people that get to keep and bear arms are those that are operating pursuant to the government.

HH: Justice Scalia for Professor Chemerinsky:

AS: Blackstone thought it was important. He thought the right of self defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.

HH: Erwin?

EC: The Constitution doesn’t say that. If we want to be textualists, the framers of the 2nd Amendment could have said the right of self-defense being essential, the people have the right to keep and bear arms. They spoke of the right to keep arms relative to the militia. And contrary to my counsel’s opposition, the militia didn’t refer to the citizenry in general. The militia was a specific thing. What the 2nd Amendment is about is making sure that Congress didn’t regulate guns in a way that would keep the states from having militias to protect the states.

HH: Justice Breyer also for Erwin Chemerinsky:

SB: I just wondered if you could say in a minute one possibility is that the amendment gives nothing more than a right of the state to raise a militia. A second possibility is that it gives an individual right to a person. But for the purpose of allowing people to have guns to form a militia, assume the second. Assume the second. I wanted you to respond, unless you have done so fully already, to what was the Chief Justice’s question of why on the second assumption, this ban on handguns, not the other part, of the District of Columbia, a total ban, why is that a reasonable regulation viewed in terms of the purposes as I described them?

HH: Erwin?

EC: The 2nd Amendment exists to protect the right of people to have guns for the militia. If it could be shown that the District of Columbia law kept people from having the weapons they needed for serving the militia, then it would be unconstitutional under the 2nd Amendment. But not even the District of Columbia says that this is unconstitutional, because it’s going to keep people from being to adequately serve in the militia.

HH: Professor Eastman, you have a comment?

JE: You know, sure. I mean, I’ll go back to the original point. I mean, we’re reading too much into a descriptive clause at the beginning. If we were to apply that rule, the patent clause would not allow us to retroactively give additional copyright and patent protection to the Disney trademarks, because it’s no longer necessary to advance the sciences and good arts. Retroactively doesn’t do that. And yet, the Supreme Court held just a few terms ago that we don’t look to that preambular clause to define the scope here. And the same is true here. A well-regulated militia being necessary to the security of a free people kind of sets the groundwork, but what for is otherwise an original and individual right, the right of the people. It doesn’t say the right of the militia or the right of the states through its militia to keep and bear arms, but the right of the people shall not be infringed. And it’s that phrasing, right of the people that is used lots of other places in the Constitution to describe individual rights that are retained by the people.

HH: Justice Stevens for Dean Eastman:

JPS: Do you think it has the same meaning that it would have if it had omitted the introductory clause referring to militia? And also, the other question I wanted to ask you, does the right to keep and bear arms define one or two rights?

JE: Oh, good questions, Justice Stevens. Yes, I think it would mean the same thing, even without the well-regulated militia clause. That defines one of the reasons for this clause. They’re talking about one of its purposes, but the operative language is the right of the people to keep and bear arms. And I don’t think that’s two rights. I think that’s one right. To keep and bear arms was a common common-law phrase at the time. I suppose we could parse it and say you get to keep them but you can’t bear them, and you could bear them, but the only people that got to keep them were the state militias in the arsenals. And so this right to keep and bear arms both given to the people is actually a further evidence of why this is not limited to the militia context.

HH: Let’s play the Justice Stevens question for Counsel for D.C. again for Professor Chemerinsky:

JPS: Do you think it has the same meaning that it would have if it had omitted the introductory clause referring to militia? And also, the other question I wanted to ask you, does the right to keep and bear arms define one or two rights?

EC: I think that Counsel Eastman made a crucial concession here. The Supreme Court has long said that no clause in the Constitution should be deemed superfluous or just redundant. The only way you can come to Dean Eastman’s position is to ignore half of the 2nd Amendment. He says it would mean the same thing without it, it would be rendered mere surplusage. I think that first clause tells you what the right is about. It’s the right of people to keep and bear arms for the purpose of militia service. Also, it’s important to focus on the phrase keep and bear arms. It doesn’t say people have the right to have arms for self defense. I think the phrase keep, and especially bear arms is all about militia service, reinforcing that the first half of the amendment is that. And I think it’s also important that Dean Eastman is ignoring the entire history of the 2nd Amendment. From 1791, when it was passed, until at least right now, never has the Supreme Court interpreted the 2nd Amendment as just being about, or being in any way about an individual right.

HH: Dean Eastman?

JE: Yeah, you know, Justice Scalia a moment ago referenced Justice Story’s treatise, the first treatise on the Constitution. And Justice Story takes this clause, and he’s looking at the clause, and the adoption of it, from a vantage point much closer to that than we are, having sat on the Court with people who were actually involved in the drafting and ratification of the clause. And he says that it means three things. He says that it means the right of the people through the militias to be called up and be able to respond quickly to insurrections or to foreign invasions, the right of the people in their own individual capacities to defend themselves, and most importantly, the right, it provides a moral check on government, so the government doesn’t become tyrannical. The fact that…the moral check is very interesting language. It puts it in the same context that the introductory clause here does, that it taps into this notion, you know, Thomas Jefferson’s yeoman farmer notion, that a people that are capable of defending themselves, and fending for themselves, through a well-regulated militia, which again was the entire adult citizenry, that that kind of thing is necessary to the security of a free state. Not any state, you don’t need that in a despotism, you need it in a free state. You need free citizens who are capable of fending themselves. All of that is tied up there. It’s what Story’s referring to. He was a justice on the Supreme Court, a much closer vantage point than we are. And the Supreme Court has never held that this is only a militia collective right, either. So this is a new question for the Court, and I hope they get it right.

HH: Justice Kennedy for Counsel Chemerinsky:

AK: Do you think Madison was guided by the experience and the expressions of the right in English law, including the Bill of Rights of 1689?

EC: Generally, the answer, I would say, is no. I think that Madison thought that they were writing a Constitution quite different from English law. I think much of the Constitution, as Professor Crofky showed in the 1950’s, was about all the ways we wanted to part from English law. I don’t think that the 2nd Amendment was about codifying English law.

– – – –

HH: Let’s go back to the questions. This is the Chief Justice, John Roberts, with a question for Counselor Chemerinsky:

JR: What do these various phrases under the different standards that are proposed, compelling interest, significant interest, narrowly tailored, none of them appear in the Constitution. And I wonder why in this case we have to articulate an all-encompassing standard? Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how this restriction, and the scope of this right, looks in relation to those? I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the 1st Amendment just kind of developed over the years as sort of baggage that the 1st Amendment picked up. But I don’t know why, when we’re starting afresh, we would try to articulate a whole standard that it would apply in every case.

EC: For every right in the Constitution, for all discrimination that’s considered under equal protection, the outcome depends on the standard of review. How deferential will the courts be to the legislature? How much will the courts scrutinize and not defer to the legislature? The Court inescapably has to answer that question with regard to the 2nd Amendment. 42 states have provisions in their state constitutions that give individuals the right to have guns. Every one of the 42 states says regulations are allowed, so long as they’re reasonable. That’s what the Court should adopt, but it’s going to take a different standard. It’s got to give the lower courts the guidance of letting them know what is the standard of review.

HH: Here is Justice Stevens and Justice Roberts posing a joint question for Counselor Eastman:

JPS: Do you attach any significance of the reference to the militia in the 2nd Amendment? To understand the amendment, you must pay some attention to the militia requirement.

JR: So a conscientious objector, who likes to hunt food, you would say has no rights under the 2nd Amendment. He’s not going to be part of the militia, he’s not going to be part of the common defense, but he still wants to bear arms. You would say that he doesn’t have any rights under this amendment?

HH: I’m sorry, that’s for Erwin Chemerinsky.

JE: No, I think that was for me.

HH: Go ahead, then.

JE: Yeah, that’s for me. No, the well-regulated militia introductory language defines the, particularly at the time, when the militia was the entire adult citizenry, that it was synonymous with the people, the conscientious objecture doesn’t mean you don’t also have the right to keep and bear arms outside of the operation of the militia. What, Justice Stevens, you’re doing here is trying to read a descriptive clause as if it’s a finite and restrictive clause. And we don’t do that elsewhere in the Constitution. We don’t do it, as I mentioned earlier, with respect to the Article I, Section 8 clause dealing with patents and copyrights. We don’t read to promote the progress of science and the useful arts as a restriction on the authority subsequently given to Congress to secure for limited times to authors, the exclusive right to their respective writings and discoveries. The fact that it’s descriptive rather than restrictive, I think, is critical here.

HH: Justice Scalia for Erwin Chemerinsky:

AS: You’re being unrealistic in thinking that the second clause is not broader than the first. It’s not at all uncommon for a legislative provision, or a Constitutional provision, to go further than is necessary for the principle purpose involved. The principle purpose here is the militia. But the second clause goes beyond the militia, and says the right of the people to keep and bear arms. Now you may say the kind of arms is colored by the militia, but it speaks of the right of the people. So why not acknowledge that it’s broader than the first clause?

EC: There’s no indication that the second clause is broader than the first clause. In fact, the choice of words in the second clause indicate that it’s not. It doesn’t say the right of the people to have firearms for self defense is protected. It doesn’t say the right of the people to have firearms for self defense in hunting is protected. It says the right to keep and bear arms is protected. Notice it uses the word arms. It uses the phrase keep and bear. I would say those are phrases that indicate what this is all about, is people having guns for purpose of service in the militia. It’s not that the militia was referring to every male. The militia was a specific thing, like a police force. That’s what people had the right to have guns for.

HH: Justice Stevens for Dean Eastman:

JPS: How do you explain the fact that you include self defense. In only two states, Pennsylvania and Vermont, did refer to self defense as a permissible justification, and all of the others referred to common defense, through defense of the state. And in the Articles of Confederation, and the Constitution itself, there’s no reference to self defense.

JE: I think it’s irrelevant. If you found all the other states prohibiting the keeping and bearing of arms for self defense, that might have some weight. But the fact that only two delineate further than providing for the common defense, one of the was you provide it for the common defense was to have the individual citizens, who are each capable of defending themselves, come together collectively when necessary.

HH: Last question, Justice Souter for both counselors, Chemerinsky and Eastman:

DS: Is there any record evidence that the anti-federalist objections to the Constitution that ultimately resulted in the 2nd Amendment were premised on any failure to recognize an individual right of self defense or hunting, or what not, as distinct from being premised on concern about the power of the national government under the militia clauses in Article I?

HH: Professor Chemerinsky?

EC: There’s no indication that the 2nd Amendment was meant to address the anti-federalist concern by giving individuals the right to have guns for self defense. The anti-federalists were very concerned about the power the Congress would have to call the militia into service. The 2nd Amendment is about making sure that state militias would be adequately armed. But it didn’t in any way bestow on individuals the right to have guns. And keep in mind, never in American history has the Supreme Court interpreted the 2nd Amendment that way.

HH: Dean Eastman?

JE: Yeah, and actually, there are several comments during the ratification debates expressing great concern about the power of the national government. And a number of the amendments, including this one, were offered in part as checks to make sure that government doesn’t become out of control. The freedom of speech to criticize the government, and I would contend, and Justice Story confirms in his own treatises, the ability of the 2nd Amendment to serve as a check on the power of the national government. Now you don’t get there only by relying on government-sponsored militias. They had two kinds of understanding of militia. There was the regulated militia, which was the one formally called into service by the government, and there was the irregular militia, which was all able-bodied citizenry. And this clause was designed to protect both.

HH: Let me ask you both, we’ve got thirty seconds left, twenty seconds each, what’s going on in these questions? Thanks for doing this exercise, but what do you hear in these questions, Erwin?

EC: My sense of the questions is that there’s going to be five justices who are going to take the individual rights position, but it’s not at all clear what test they’re going to use. I was surprised by how much they wanted to focus on the details of the framers’ intent in 1791.

HH: John Eastman?

JE: I actually think there’s going to be more than five to hold that there’s an individual right that’s protected here. Where the big fight will come, and I think it’ll be a 5-4 fight, is whether we’re going to treat it as a fundamental right that gets strict scrutiny, or whether we’re going to treat it as just any old right that only gets rational basis of review, and is highly deferential to the government.

HH: Fascinating stuff, Gentlemen. We’re out of time, thanks for playing along. It’s great radio.

End of interview.


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