HH: We’re joined on this Thanksgiving Eve by the Smart Guys, Erwin Chemerinsky, professor of law at Duke University, soon to be the new dean at the new UCI school, and Dean John Eastman, my dean at Chapman University Law School. Gentlemen, Happy Thanksgiving to you both, it’s always a pleasure. One of the things I’m thankful for is that we can have these conversations each and every week about matters of importance to the Constitution, and agree to disagree civilly. Erwin, I want you to start, this is a huge case, this gun case. Can you set out what we know about Supreme Court precedence when it comes to the 2nd Amendment?
EC: Sure. I want to start by echoing what you said. I, too, am so thankful that I have the opportunity to be on your show and to work with both of you. The Supreme Court last dealt with the 2nd Amendment in 1939, in United States Vs. Miller. The Court there upheld a federal statute that regulated basically assault weapons, at least at that time, assault weapons. And the Supreme Court expressed the view then that the 2nd Amendment does not protect the right of individuals to have guns, that the 2nd Amendment is about a collective right, keeping Congress from regulating guns in a way that would keep states from being able to protect themselves. And since 1939, there’s been no Supreme Court case that’s directly dealt with the meaning of the 2nd Amendment.
HH: Now John Eastman, were you surprised that the United States Supreme Court of today has taken this case, and can you tell us what law it involves?
JE: Well, I’m not surprised at all. This has been percolating for a while now. And there are three statutory provisions in the District of Columbia at issue. One prohibited you from registering any handguns after 1976. And then the second prohibited you from owning an unregistered handgun. So if you didn’t have one before 1976, you weren’t every allowed to own one. And then the third prohibited you from having a long gun, or a shotgun, in your house, unless it was completely disassembled, and couldn’t be used. And so these are fairly stark prohibitions on the right to self defense, which many argue is part of the 2nd Amendment protection. And so I think that this issue is more squarely presented than it has ever been. We’re not talking about sawed off shotguns or bazookas, or any other things. It was sawed off shotguns was at issue in the Miller case back in 1939. We are talking about, you know, the basic right of self defense here. And there’s also been a cottage industry of scholarship over the last twenty years looking at this question very seriously, in a very scholarly way, on what the founders understood the 2nd Amendment to mean. And it’s brought around such prominent legal scholars as Larry Tribe and Akhil Amar. It brought around the Department of Justice in two important footnotes in expressing the views of the Department on two prior gun cases before the Court. And the Attorney General actually shifted positions here in the last five years on what the Department’s view of the meaning of the 2nd Amendment was.
HH: Now Erwin, could you set up for us the two models, the individual model and the collective model, and explain to the audience how these compete for dominance in the world of 2nd Amendment theory?
EC: Sure, and I think that both have behind them a huge body of scholarship. One view says that the 2nd Amendment is about an individual’s right to have guns. It focuses its attention on the last clause of the 2nd Amendment. And is says that, as John argued, that the 2nd Amendment is about a right of individual protection. Some even believe that the framers of the 2nd Amendment meant there to be the ability of people to arm themselves against their government. The other side says that the key is the first clause of the 2nd Amendment, that talks about a well-regulated militia being necessary, and says that people have the rights to have guns only for service in the militia, and in fact, what the 2nd Amendment is about is a collective right. It’s meant to keep Congress from regulating guns in a way that keeps states from protecting themselves. I actually think that there’s a problem in just seeing it as a competition between these two models, though that’s probably how the case is going to be briefed and argued at the Supreme Court, because even if it’s the individual rights model, there’s still the question of how much deference should the Court give to legislative action in this area, how aggressive should the scrutiny be? My argument would be even if it’s an individual rights model, we should treat guns like any other property, and allow government regulation, so long as the regulation is reasonable.
HH: Now John Eastman, is that the standard that Miller articulated, and will that be the standard you expect to be emerged, a reasonable regulation will be upheld? And then the question is whether or not these D.C. regulations are in fact reasonable. Is that the model you expect to come out of this Court?
JE: No, I don’t think so. I think this Court, based on the significant recent scholarship of this subject, uncovering the original meaning of the Constitution, in my view, or the 2nd Amendment, in my view, is going to find a personal right, a fundamental right, in fact, one that is as fundamental as the freedom of speech in the 1st Amendment. And once they reach that threshold, and reasonable regulation is not the standard, regulations of, restrictions on that right, that fundamental right, the ability to own, keep and bear arms in order to defend yourselves against thugs, for example, against criminals. But also, you look at Joseph Story, who in the key treatise in the 1830’s, looking at the founding understanding of these things, talks about the moral check that having a right to keep and bear arms would pose on governmental power from becoming tyrannical. I think that when the Court looks at that, it’ll find that this was a fundamental right that not only is recognized in the 2nd Amendment, but is in fact a human right, or a natural right that preexists government, the right to defend yourself. And I think once you reach that step, now we’re talking strict scrutiny, that government regulations have to be furthering a compelling governmental interest, and they have to be narrowly tailored for that interest.
HH: Erwin, let me ask you, let’s assume for a moment that the Court decides that the 2nd Amendment is in fact the militia model, the collective model. That doesn’t necessarily end it, either. Then they have to go back and find out whether the 9th Amendment is referring to these un-enumerated rights. And it seems to me that a country birthed in revolution has to have understood at the time of the framing the right of an individual to arm himself with whatever was the best weaponry of the time. What’s the argument against that logic?
EC: First, of course, you’re assuming that what the framers intended is going to be controlling for the meaning of the 2nd Amendment today. There’s only a few justices on the Court who would take that approach. But putting that aside, I think what John’s argument misses, and what your question misses, is there’s a very impressive body of scholarship that says that the 2nd Amendment’s intent was just about keeping Congress from regulating guns in the way that keeps states from protecting themselves. It was never meant to protect an individual right to have guns. And where I’ve read all this literature, and I’ve got to say, I think for every article that does a great job on the individual rights model, there’s a great article that says it’s the collective rights model. When you to text, when you go to framers’ intent, when you go to policy, each side, I think, has a very strong argument, and it’ll be interesting to see what the Supreme Court does, which is why I like the out of saying it’s just not a fundamental right, that in fact the Supreme Court has never applied the 2nd Amendment to state and local governments, because they’ve never treated it as a fundamental right.
HH: John Eastman, I’m going to go to break, and I’m going to try and keep you guys with us, and Duane will check with you, because I think this is a fascinating conversation. But what about the idea that a nation birthed in revolution clearly anticipated an armed citizenry?
JE: Well, they did. And you know, the collective right understanding that tees off of the Preamble clause, a well-regulated militia being necessary to the security of a free state, well, what’s a militia at the time that that’s written? It’s every able bodied man between the ages of 16 and 35, or 16 and 45. The well regulated militia was, in fact, the body politick. Every single well bodied man, not only had the right, but they had the duty to keep and bear arms in order, they were the front line against domestic insurrection and foreign invasion, but also, and this is, I think, the important piece that is often overlooked in the debate…and it sounds like the music is playing. Let’s come back.
HH: We’ll come back and continue this conversation about this most important case, probably, of the 2007-8 term, the D.C. gun control case.
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HH: John Eastman, when we went to break, do you think this is the most important case of the 2007-2008 term for the Supreme Court?
JE: Well, one of two. The third run at the Guantanamo Bay detainees is going to be extremely important as well.
HH: You’re right about that. So Erwin, when we went to break, we were talking about how this is going to turn out. We’ve got a short segment here. Just handicap the Court for us, between a restricted decision and an expansive 2nd Amendment rights decision, how do you see the Court breaking down?
EC: I don’t think that we can predict here. I mean, we can obviously project what we want the Court to do, because when we predict for you, what we’re doing is looking at their past opinions, and assuming they’re going to carry over into the future. There aren’t past opinions here. There is an opinion by Justice Thomas, where it was a concurring opinion, when he gave a strong sense that he will take the position that John was articulating, the individual rights position. But the other justices haven’t yet spoken on this question. And there’s all sorts of complexities here. For example, will some of the more conservative justices take a judicial restraint position, saying we should defer to government, and we should follow precedent? Might some of the liberal justices be persuaded by some of the individual rights scholarship on this subject? I think this is an impossible one to even guess. We could certainly say what we want to see happen, but I don’t think we can really predict.
HH: John Eastman?
JE: You know, I agree with part of that, but we do have a tea leaf here that’s important. And that is the Court did something that it doesn’t do very often, and that is it rewrote the question that was presented in the cert petition. And they rewrote the question this way, whether the three provisions of the D.C., District of Columbia code that we spoke about earlier, violate the 2nd Amendment right of individuals who are not affiliated with any state regulated militia, but who wish to keep handguns and other firearms for private use in their home. That seems to presuppose that there is an individual right. Now, we’re going to find out the length to which government can restrict it. Now maybe I’m reading too much into that, but that’s a rather extraordinary restatement of the question as it was presented.
HH: And what’s that tell you?
JE: I think it tells me that there are, that there’s a majority of the Court that accepts the notion that this is an individual right. And where the dispute is going to be is how much it can be regulated, how strong a right is. Does it rise to the level of fundamental right, where it can be regulated only subject to strict scrutiny, or is it going to be something less than that, where reasonable regulations will be upheld.
HH: Okay, last question, gentlemen, if you file an amicus here, what are you going to be arguing, Erwin Chemerinsky?
EC: I am going to be filing an amicus brief. I’ve already agreed, and what I am going to be arguing is that even if it’s an individual right, it should be treated the same as any other property right. Reasonable should be enough. I also want to say it’s interesting how John read the rephrasing the question to support his view. I read it as wow, what they’re saying here is do individuals have a right apart from militia service at all, and I read it as a very favorable phrasing for my side.
HH: Interesting. John Eastman, will you be participating as amicus, and how will you be arguing?
JE: We expect to be participating, and I think we’re going to argue from a line in Justice Story. When he talks about the right of the citizens to keep and bear arms as the palladium of the liberties of the Republic, and then he goes on, and I think this is really key, since it offers a strong moral check against the usurpation on arbitrary power of rulers. And he says that even recognizing that you know, your well-armed citizenry isn’t going to stop the standing army of the national government. It’s going to be a moral check. And I think what he’s tapping into here is the importance of learning how to defend ourselves as a people. It’s the model of Flight 93 that went down in the grasslands of Pennsylvania against terrorist attack, that they took matters into their own hands if necessary. It’s that capability of self-government that I think is tapped into by the 2nd Amendment, and we’re going to try and tease that out a little bit in our brief.
HH: John Eastman, is the Center For Constitutional Jurisprudence signed on with anyone yet to do this?
JE: Not yet. We typically file our briefs by themselves.
HH: Okay, so…but if someone came to you from the gun community, and they asked you to represent them, would you be open to that?
JE: I would be open to it.
HH: I think they really ought to do that. And Erwin, who are you representing?
EC: That’s not clear yet. I’ve been asked by the D.C. government to do a brief of this. But who it’s going to be on behalf of, I can’t…that hasn’t been decided yet.
HH: Do you have any idea who’s going to be arguing this case for the D.C. government? This is so huge, I’d hate to see it argued poorly.
EC: It’s not going…Alan Morrison, the former head of Public Citizen, former Stanford Law professor, I understand, who’s now in essence, the solicitor general of the District of Columbia, is going to be arguing for the District of Columbia, and he is a terrific advocate with a great deal of Supreme Court experience.
HH: John Eastman?
JE: Yeah, I don’t know. My guess is that the Department of Justice of the United States government might move to intervene or file an amicus and ask for part of the argument time as well, given the shift in the Department of Justice’s position over the last five years.
HH: Well, do we know who is representing the plaintiffs at this point?
JE: My understanding is that the particular representation is, oh boy, I’m going to draw a blank on his name. So let me not mess up his name, and I’ll try and look it up here quick.
HH: Again, I recommend to any gun rights group out there, they find John Eastman at Chapman and bring him on board quickly, and the same goes for any handgun control group. It’s going to be a big, big case. John Eastman, Erwin Chemerinsky, once again, a happy and safe Thanksgiving to you and yours. I look forward to talking to you next week.
End of interview.