[00:00:31:15] Adam Winkler (AW)—As most Americans know, the language of the Second Amendment in maddeningly ambiguous. It says,

“a well regulated Militia, being necessary to the    security of a free State, the right of the people to keep and bear Arms[,] shall not be infringed.”3

It’s almost like [James] Madison, who wrote that provision, finally discovered the comma and wanted to put as many of them as he could within that text. But, as a result of all those commas, it is kind of unclear exactly what the Second Amendment was designed to do, at least on the face. And the Supreme Court was facing two competing interpretations, really.

One interpretation, which had traditionally been adopted by the Federal courts, was that the Second Amendment protected the right of state Militias to be free from Federal interference. So, the Federal government could not disarm the state Militias. A competing view grew...has arisen and, in fact, has been in American dialogue and political debate since the founding, which was that the Second Amendment protected a right of individuals to own guns for personal self-defense, totally apart from service in a state Militia.

So, the Supreme Court was really charged with sorting out which of these two views of the Second Amendment is the right view of the Second Amendment. And the Court, in a landmark decision, held that the view that the Second Amendment protects an individual’s right to bear arms was the correct one.

[00:02:05:04] GWorks—How did the Court reach its decision?

[00:02:09:04] AW—Well, the Court got there through what was purportedly an originalist methodology by the lead proponent of originalism in the Supreme Court, Justice Antonin Scalia. He wrote the majority opinion for the Supreme Court, a 5–4 decision in the Heller case, striking down that DC gun law. And, he got there mainly by looking at history, by saying, ‘when we look back at what the Founding Fathers intended, they intended that ordinary civilians be armed.’

The Founding Fathers were very much opposed to the idea of a Standing Army. This has reasons to do with the traditions that they were used to in England. They thought a Standing Army would be used by the King to control the people, to disarm the people and provide a security force that he would use to tyrannize ‘We the People.’

So, when the Framers wrote the Second Amendment and referred to a “well regulated Militia,” they were talking not about a Standing Army, they were talking about a citizen Militia: ‘We the People, called out to arms to defend our nation and to fight.’ And the Framers believed that civilians with guns would prevent government from becoming too tyrannical.

[00:03:29:08] GWorks—How did Justice Scalia address the language of the Second Amendment?

[00:03:33:08] AW—Well, there are so many different issues that he had to address. What does the Second Amendment mean by “the right of the people to keep and bear Arms”? Did that mean the people as a collectivity? That’s what the ‘Militia theory’ had argued—that ‘We the People’ come together as a collectivity…act in the Militia to protect our liberties.

However, Justice Scalia said, if we look at the way the phrase “the people” is used throughout the Bill of Rights, in the First Amendment it says, “the right of the people to peaceably assemble.”4 We don’t interpret that to mean anything other than an individual right of persons to associate and organize for political reasons. When the Fourth Amendment says, “the right of the people to be secure in their homes from unreasonable searches and seizures,”5 we don’t interpret that as a collective right. We interpret that as the right of individuals to be free in their own home from government over-reaching.

So, he says, ‘Well, we must understand “the people” in the same way in the Second Amendment as we do in the First Amendment and the Fourth Amendment and in some other provisions of the Constitution.’ We interpret those really as a reference to the people having individual rights.

And, there was disagreement among this view. Justice [John Paul] Stevens, in his dissenting opinion in the Heller case, argued that, “We the People” was a collective reference and wasn’t quite the same as the Fourth Amendment or the First Amendment.

Justice Stevens and Justice Scalia disagreed on a number of other textual matters in the Second Amendment. What does it mean “to keep and bear Arms”? Justice Scalia said that’s an individual right to have an arm in your home for self-defense. Justice Stevens said that’s a right that’s associated with military service. You ‘bear arms’ in a military context not outside of a military context in his view.

And so, they disagreed on many aspects...almost every word of the amendment occasioned some disagreement between the two contending sides.

[00:05:28:22] GWorks—Would you discuss Justice Stephen G. Breyer’s dissent?

[00:05:32:22] AW—Sure. No good Supreme Court opinion goes without a number of concurring or dissenting opinions.

Justice Breyer’s opinion was a dissenting opinion. He sided with Justice Stevens but wrote for himself to suggest that, regardless of the nature of the right to bear arms, whether it’s an individual right or a collective right, that there must be ample room for states to carve out gun control laws. And that he thought the District of Columbia was well within its rights to ban hand guns, which are a type of firearm often used in crime. The vast majority of criminal acts committed with a firearm are committed with a hand gun. They do a lot of damage. Easy to conceal. Easy to port...transport around. So, Justice Breyer thought that the Court should balance the right versus the ability of cities and states to protect public safety.

[00:06:28:02] GWorks—Are Justice Scalia’s views in Heller “originalism”?

[00:06:32:02] AW—Well. They are but they’re not.

So, on the surface, Justice Scalia’s opinion seems like the real embodiment of originalism. And, in fact, right after the decision came down, it was heralded as a triumph of originalism, the crowning achievement in Justice Scalia’s decades-long effort to make originalism, not living constitutionalism, the foundation of constitutional meaning today.

But, as I argue in Gunfight, actually his opinion is quite a bit more complicated than that. And, in very important ways, seems to adopt a living Constitution approach.

There’s a really important paragraph towards the end of Justice Scalia’s opinion, where he says, ‘nothing in this opinion should be taken to cast doubt upon long-standing prohibitions like bans on felons or the mentally ill from having firearms, laws restricting guns away from sensitive places like schools and government buildings, or commercial sales restrictions, like background checks, things like that.’6

And that is an important paragraph because, when interpreting the Second Amendment, we must do more than just identify the nature of the right. We must use that amendment to try to figure out what are the exacts limits on what government can do. That’s…Can it pass this law? Can it pass that law? That’s where the rubber hits the road in constitutional analysis. And Justice Scalia, by saying that laws banning felons and the mentally ill and laws banning guns from sensitive places, laws restricting commercial sales—by saying those things are all legitimate, the Court was not embodying an originalist methodology, because none of those kinds of laws were in existence when the Founding Fathers wrote the Second Amendment. Those laws trace their heritage mostly to the Twentieth Century and are a result of modern-day regulation. So, in many ways, Scalia’s opinion turns out to rely on the same kinds of living constitutionalism that Justice Scalia inveighs against so often.

[00:08:33:12] GWorks—If the opinions in Heller agree there is room for gun regulation, are the opinions distinctions without a difference?

[00:08:39:12] AW—I don’t think that they’re distinctions without a difference. And, I think one of the important differences they might have is in terms of public debate.

I think that if the Supreme Court had said that the Second Amendment does not protect an individual right to bear arms, it would lead to a lot of unhappiness, it would lead to a real re-invigoration of the guns rights movement—it’s already a strong movement in America. But I think you’d see a much more powerful movement. In fact, there are some who have suggested that the election in 2008 of Barack Obama might have been very different had the Supreme Court that summer held that the Second Amendment did not protect an individual right to bear arms because it might have stimulated gun owners who are known to turn out in force for their favorite candidates to really show up and give more support to John McCain who might...they imagine might have pushed for Justices more friendly to the individual right to bear arms.

So, there are differences in a variety of ways.

But one of the distinctive features of Scalia’s opinion, that people often miss, is how it did carve out plenty of room for states and localities to enact gun control laws. And, indeed, to this day, there have been well over 200 Federal court decisions on the constitutionality of gun control since Heller was decided. The vast majority of them uphold the challenged gun control laws. Only a very, very small number of laws have been called into question.

[00:09:58:14] GWorks—How is life after Heller different?

[00:10:02:14] AW—Well, I think for the vast majority of gun control laws that were politically feasible, I guess that’s a small number these days, there’s really no effective difference. The Court’s not going to strike down the laws and these laws, whether they get passed or not, really doesn’t have much to do with the Second Amendment per se.

I think there’s a big implication in the Heller case that might be positive for the gun debate more generally.

I’m hopeful that, by clarifying that the Second Amendment protects and individual right to bear arms, that government can never come and take away all of the civilian guns, that that might quiet the gun debate in the long run, that maybe in the long run gun owners will not feel that every gun control law puts us on a slippery slope towards disarmament because the Supreme Court hopefully will say repeatedly that government can never take away all the guns. And if they do that, I think there are a lot of gun owners out there who would support laws that gun control organizations call ‘common sense’ or ‘reasonable gun control laws,’ things like extending background checks to all gun purchasers, restrictions on the most dangerous types of weapons, other kinds of laws, might be supported by many gun owners who today refuse to support them because they’re afraid of losing their right to bear arms entirely.

So, I’m hopeful that Heller points a way to restore some balance into the gun debate and maybe help us break the current stalemate over guns in America.

[00:11:32:29] GWorks—Did the Court consider the political implications of deciding Heller?

[00:11:36:29] AW—It’s so hard to say what was in the minds of the Justices when they write their opinions. All we really have are the opinions themselves. Maybe years later we’ll get some draft opinions that will provide more answers as to exactly what they were thinking when they wrote the opinions. But, I think it’s clear to any student of constitutional history that, over the course of American constitutional law, our interpretations of this fundamental charter have shifted and moved with social movements, with changes in understanding about how we think about different phrases.

There is no question that the framers of the Fourteenth Amendment in the 1860s, passed right after the Civil War, did not intend the guarantee of equal protection of the laws to outlaw racially segregated schools. Now, we know that because they had racially segregated schools at the time and even the most liberal, progressive state, like Massachusetts, had racially segregated schools. And no one at the time ever suggested that the Fourteenth Amendment outlawed racially segregated schools. It wasn’t until about 80 years later that the Supreme Court held that indeed the Fourteenth Amendment protected the right of individuals to be free from race discrimination in places like public schools.7 And that’s a result of the Civil Rights movement, it was a result of World War II and how that...how our experience in World War II changed fundamentally our understanding of what...the harms of race discrimination.

So, there’s no doubt that the law moves and shifts with social movements and with development of ideas. And, I think there is no doubt that in America today, the view the Second Amendment protects the individual right to bear arms is very well accepted, very well established and, even if you believe in a living Constitution, I think you should agree that the Second Amendment protects the individual right to bear arms.

[00:13:29:15] GWorks—Thank you, Professor Winkler.

[00:13:31:15] AW—Thank you very much for having me.

—End of Part Two—

To Part Three

EDITOR’S NOTES

GOVERNINGWorks conducted this interview on Wednesday 31 August 2011. GWorks produced and edited this video and its transcript.

GWorks would like to thank Professor Adam Winkler for his generous participation in GWorks Interviews and Professor Winkler and W.W. Norton, Inc. for providing a Reviewer Copy of Gunfight: The Battle Over the Right to Bear Arms in America before its publication and this interview.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.

Please note:  Footnote numbering continues from GWorks Interviews Adam Winkler (Part 1 of 6) Heller

3 Second Amendment.  Please note: The Constitution includes a comma between “Arms” and “shall.”

Transcriptions of citations to the United States Constitution use the United States Constitution as published by the Legal Information Institute at the Cornell University Law School. This includes a link to the CRS Annotated Constitution, an invaluable publication of the Congressional Research Service. For punctuation and capitalization, GWorks uses the Pocket Edition of The Constitution of the United States and the Declaration of Independence as published by the Government Printing Office.

4 The First Amendment reads in full,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

5 The Fourth Amendment reads in full,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

6 District of Columbia v. Heller, 554 U.S. __ (2008) (slip op., at 54–55). Justice Scalia writes:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

7 Brown v. Board of Education, 347 U.S. 483 (1954).

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