What Is The True Meaning of The Second Amendment?

Wednesday, February 12, 2003

Transcript prepared from a tape recording.

Agenda:

9:45 a.m.	Registration
10:00	Panelists:	Akhil Reed Amar, Yale University
		Robert J. Cottrol, George Washington University
		Robert A. Goldwin, AEI
		Sanford V. Levinson, University of Texas
	Moderator:	John C. Fortier, AEI
Noon	Adjournment

MR. FORTIER: [in progress] as to its meaning, that would be agreed to by the panel and the audience. The strange character of the amendment can be seen in the fact that it has two clauses, one a preface discussing the militia, a well-regulated militia and its relation to a free state, and the second declaring the right of the people to keep and bear arms.

How are these two clauses related? Does the right to keep and bear arms depend on the organization of a militia, and if so, how so?

The two clauses raise perhaps the fundamental question about the Second Amendment. Is the right to keep and bear arms an individual right or a communal one, tied up with states and militia?

Beyond this larger question, interpreters of the Second Amendment have to deal with a number of other words whose meaning is not clear on their face.

What did the word "militia" mean to the Founders, and that it be well-regulated? Why does the amendment speak of people rather than persons or citizens, and does that shed light on individual right and collective right debate?

Finally, what does the phrase "keep and bear arms" mean? Is it an indication that the arms are meant for military service or for personal use such as self-defense or hunting?

A quick history of the origin of the Second Amendment may also shed some light on its meaning. The Bill of Rights was not included in the original Constitution but many anti-Federalists and state ratifying conventions called for it.

But it was James Madison, who had originally opposed a Bill of Rights, who shepherded a number of amendments through Congress and, in 1792, Secretary of State Thomas Jefferson announced the ratification of Ten Amendments that we call today the Bill of Rights.

In addition to its origins, we should consider subsequent developments to its meaning. The Fourteenth Amendment and the Supreme Court's incorporation of much of the Bill of Rights, applying them to the states, is certainly one of the most significant constitutional developments we've had since the ratification of the Bill of Rights itself.

What does the Fourteenth Amendment mean for the Second Amendment? Did the Framers of the amendment have a different, more individual rights-oriented view of the right to bear arms?

Does the Fourteenth Amendment apply the Second Amendment to the states? Finally, it's important to note that the Supreme Court has, for the most part, avoided this issue with the last case being over 60 years old, the last major case.

Recently, the Justice Department caused "a stir" by changing its statement of policy on the Second Amendment, changing it from one that was more of a collective right, stating that it's more of an individual right, and most recently, this past Monday, plaintiffs were emboldened by this change in policy and challenged the District of Columbia's gun control law, one of the strictest in the country. So we have long-term constitutional questions of interpretation, but of course we have very practical consequences to these different interpretations.

So the final issue we hope to discuss today on the panel is what relevance the changes in meaning or different interpretations of meaning of the Second Amendment will have for potential litigation and challenges of various state laws across the country.

These are difficult questions but we have an excellent panel of people to discuss it and I'll start with AEI's Bob Goldwin who is a resident scholar here and has directed our constitutional studies program.

Bob is particularly well-versed in the founding and constitutional issues, and I will recommend a book, "From Parchment To Power," which has been written, Bob wrote in 1997 or published in 1997, on how the Bill of Rights came into being, how James Madison, originally an opponent of the Bill of Rights being added to the Constitution, ended up, in some ways, the "father of the Bill of Rights" and of course this includes the Second Amendment.

We'll turn next, after Bob Goldwin, to Bob Cottrol, who is professor of law at George Washington University, also specialized in American legal history and has written extensively on matters of the Second Amendment, and, in particular, I recommend a collection of essays that he has, a collection of original source material and essays that he has on the Constitution, on the Second Amendment, "Gun Control and the Constitution: Sources and Explorations of the Second Amendment," and also he has published several books on African American legal history as well.

I'll turn then to Akhil Amar who is the Southmayd professor of law at Yale Law School, has written widely on numerous issues, including the Second Amendment, and here I would also recommend a book of his on the Bill of Rights.

With Bob Goldwin's book, I think the two of those books form an introductory course on the Bill of Rights which I recommend to all of you.

Amar has also clerked for Judge Stephen Breyer and spoken widely in the country and written both in legal journals and in popular journals.

Finally, Sandy Levinson is the W. St. Garwood and junior chair of Law and professor of Government at the University of Texas. He's both a political scientist and a constitutional lawyer, scholar, and he's the author of books such as "Constitutional Faith" which is an extremely important book about constitutional interpretation, and has written a significant Law Review article on the Second Amendment entitled "The Embarrassing Second Amendment," which called to task his compatriots in academia for not taking the Second Amendment as seriously as they should.

I will start with Bob Goldwin, and Bob Cottrol, Akhil Amar, Sandy Levinson, and we'll try to keep our remarks to twelve minutes or so, twelve to fifteen minutes, we'll have some discussion on the panel and then we'll open it up to questions in the audience.

MR. GOLDWIN: I'll point out that you have at your place a sheet that gives us successive versions of the Second Amendment, and that will help you follow my argument.

It should not surprise us, I suppose, that knowledgeable constitutional experts disagree on the true meaning of the Second Amendment.

After all, the amendment was written more than 200 years ago and we're all familiar with the tendency of technical words and phrases to lose or change their meaning over a period of centuries.

Also the Second Amendment, like most amendments, was written not by a single author but instead by several committees, committees of congressmen who disagreed in various ways amongst themselves.

Our task today to determine as best we can the Second Amendment's true meaning is made more difficult by these facts about the origin of the amendment but certainly not impossible, because the authors, the members of the House of Representatives in the first Congress, left a helpful record of their debates and their successive revisions of the text to aid us in getting at the meaning of the key terms and phrases.

So what does the Second Amendment mean? Some scholars go back to Aristotle, Machiavelli, Blackstone, and many other foreign sources from other times for guidance in interpreting the Second Amendment.

It is also a common practice to quote the pronouncements of contemporary American figures like George Mason and Patrick Henry, who had much to say that seems relevant, but who were not in the Congress and who played no role in the decisive debate and votes.

I think it makes better sense to look to the authors of the amendment themselves, the members of the first Congress who spent several months, on and off, debating and revising the amendments, for the vital help they can provide in getting to its true meaning.

As we all know, the Constitution was ratified without amendments. More than a 100 amendments had been proposed during the ratification process, mostly by opponents of the Constitution, many of these opponents wanted either to obtain the amendments prior to ratifying the Constitution, or else to ratify only on condition that their amendments would be adopted.

But all such efforts failed. No amendments were adopted prior to ratification and all ratification by the several state conventions were unconditional.

The formulation most widely used by those state conventions that proposed amendments was that the state was ratifying, in full confidence, that their proposed amendments would be considered by the first Congress, and when the first congressional elections were held, James Madison was elected to the House from Virginia, after pledging that he would bring forth amendments.

Once elected, he adhered to his pledge, sort of. The amendments Madison proposed differed in important respects from those that had been proposed by the anti-Federalists in Virginia and in other states.

He not only ignored scores of articles that had been proposed by the state conventions. He also cut some of them in half. For example, one of the most popular proposals provided for state militia linked to a provision strictly limiting standing armies. Six states advocated such a dual provision, twice as many states as had proposed protection of freedom of the press or speech or religion.

The Virginia version read as follows--and you have the text: "That the people have a right to keep and bear arms, that a well-regulated militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free state. That standing armies in times of peace are dangerous to liberty and therefore ought to be avoided."

This contrasting of militia and standing army, one proper, natural and safe, the other dangerous to liberty, was a commonplace.

Alexander Hamilton devoted three of The Federalist Papers to the subject, and we can see evidence of the same thinking in the Articles of Confederation and in the Constitution.

Much of the contrast centered on opposing provisions for keeping up the one or the other, the key to understanding the word "keep" in the phrase "to keep and bear arms."

The Articles of Confederation placed a limit on the standing armed forces any state could keep up.

It read as follows: "Nor shall any body of forces be kept up by any state in time of peace except such number only as in the judgment of the United States and Congress assembled shall be deemed requisite to garrison the forts necessary for the defense of such state."

But the articles treated the militia quite differently. The militia were to be kept up without limit. "Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use in public stores a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage."

A remnant of mistrust of a standing army is evident in the Constitution. Congress has granted the unqualified power to provide and maintain a Navy but the power regarding land forces is qualified to raise and support armies but no appropriation of money to that use shall be for a longer term than two years.

As for the militia, Congress has power to provide for organizing, arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States, but the Constitution does not have in it the assurance that the Articles of Confederation had, the imperative that every state shall always keep up a militia.

There were many who were concerned that the new powers of the Federal Government over the military would lead to a change in the balance of standing armies and militias, with a reduction or a neglect of the proper arming and maintenance of the state militias because of the lack of explicit assurance that every state shall always keep up a militia.

To correct that silence and address that concern, Madison proposed his militia amendment which read, in part, as follows:

"The right of the people to keep arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country."

The use of the word "keep" there is consistent with its use in the previous examples of passages from the Articles of Confederation, always in a military context, and its meaning becomes even clearer when linked to the word "bear" in the phrase "to keep and bear arms."

Madison's first version of what became the Second Amendment contained a conscientious objector provision, which was ultimately deleted. The complete text of Madison's proposal was as follows: "The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country. But no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

The best clue to the meaning of the word "bear" in the phrase " to bear arms" is in that conscientious objector clause that Madison proposed.

In that clause, it is clear, is it not, that bearing arms is meant in a strictly military sense, not in a private sense.

In fact in the next version of the amendment, as revised by a special committee of the House, with Madison as one of the members, the phrase "to render military service in person" was replaced by the phrase "to bear arms."

This revised version is the one that the House approved and sent forward to the Senate for concurrence.

It read: "A well-regulated militia composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed. But no person religiously scrupulous shall be compelled to bear arms."

The right of the people to bear arms, that is, the collective right of the people to keep up a militia and the individual right to serve in the militia must not be infringed.

The debate in the House on the amendment focused almost entirely on the conscientious objector clause. Eldridge Gary expressed a concern that as worded, it could be twisted to keep members of certain religious sects from serving in the militia, and he linked that to the successful efforts of the British at the beginning of the revolution to prevent Massachusetts from establishing an effective militia.

He saw danger in granting a discretionary power to exclude anyone from militia duty. He was against giving the authorities the power to declare who are those religiously scrupulous and prevent them from bearing arms.

Gary and all the others who spoke to this amendment clearly too the phrase "to bear arms" to mean militia duty.

There is no record of the deliberations in the Senate that produced the final version. They deleted the conscientious objector clause and the clause indicating that the militia is composed of the body of the people, and so significant clues as to the meaning of the terms in the amendment were erased, but the meaning of the key phrases I have dwelt on remained unchanged, and there we have the final version, 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.

The conclusion seems obviously. The Second Amendment is about the collective of states to keep up a well-regulated militia and the individual right of the people to bear arms in the militia.

Private ownership of guns is not what the Second Amendment is about. In all of the debate in the first Congress on the Second Amendment, such a right for any private purpose was never mentioned. The entire discussion was of militia.

If the authors of the amendment are any guide for our understanding of their own handiwork, the subject matter of the Second Amendment is militia, not private uses of guns.

But does that mean there is no personal right to have a gun for such purposes as protection of the home and for hunting? If you had asked those members of the first Congress whether there is such a right, I think they would have replied yes, of course, it goes without saying.

Many people have guns in the home and everyone has the right to hunt, but there's no evidence in the record of the deliberations in the first House of Representatives that that right has anything to do with the Second Amendment.

At best, it is one of the countless rights we have that are not mentioned in the Constitution, like the right to own a dog for protection of the home and for hunting.

What is the status of rights that are not enshrined in the Bill of Rights or mentioned anywhere else in the Constitution? When the amendments were being debated in the House, it was pointed out that there are too many rights to list, such as the right to go to bed when you choose and to get up when you choose, the right to wear a hat or not ,and so on.

What happens to those rights, what protection do they have if other rights are given explicit protection and they are not?

Madison said that question so vexed him, that he was not prepared to go forward with his amendments without what is now the Ninth Amendment. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

A few examples of other rights not mentioned in the Constitution but retained by the people would include the right to marry or not, to have children or not, to own a house or a car or a dog.

But the exercise of these rights can be regulated or controlled or licensed without denying or disparaging them. You need a license to marry, a birth certificate for the children, a deed for the house, registration for the car and even a license for the dog.

A right to own a gun, like other rights not mentioned in the Constitution, can be licensed and regulated and controlled without denying of disparaging the right, and without concern that a provision of the revered Bill of Rights is being violated.

It may come as a surprise that even those who argue that the Second Amendment establishes a private right to own and carry a gun for persona use agree that gun control legislation is constitutional.

For example, Don B. Cates [ph], Jr., perhaps the leading exponent of the reading that the Second Amendment provides for the private right of individuals to own guns, whose legal articles are frequently reprinted by the National Rifle Association, writing in the Encyclopedia of the American Constitution, has this to say about gun control legislation: "Interpreting the Second Amendment as a guarantee of an individual right does not foreclose all gun controls. The ownership of firearms by minors, felons, and the mentally impaired, and the carrying of them outside the home by anyone may be limited or banned. Moreover, the government may limit the type of arms that may be kept. Gun controls in the form of registration and licensing requirements are also permissible so long as the ordinary citizen's right to possess arms for home protection is respected."

So the policy consequences would not be much different, whether we agree with my reading of the Second Amendment, that it is not about private ownership of guns or Mr. Cates' reading, that it does secure the private rights of gun owners.

The main consequence would be that legislators could approach the subject of gun control strictly on the merits of how it might affect crime, murder, suicide, accidental shootings, and so on, all without being distracted and intimidated by constitutional concerns.

I have one final point. As I have said, I think congressmen in 1789 would have agreed that they had a right, though not enshrined in the Bill of Rights, to hunt and have a gun in the house. The right may not have changed since then but the circumstances for the enjoyment of that right have changed significantly.

There are restrictions on hunting now that were unthinkable then, not because the right has changed but because the circumstances for exercising that right have changed.

The same is true for all aspects of gun ownership and use. One can assert that there is a right of gun ownership but that still requires legislators at the federal, state and local levels to assess the changed circumstances in which that right can be exercised.

However one reads the Second Amendment, the same prudential problems remain. Gun enthusiasts who agree with the sensible conclusions of Mr. Cates are obviously not the problem. The big problem stems from those who argue that the purpose of the Second Amendment is to assure an armed citizenry ready to resist the government with their guns as a defense against tyranny.

In other words, these persons contend that the Constitution authorizes armed resistance to the officials duly elected under the provisions of the Constitution. They contend that this armed citizenry provide the ultimate protection of our liberty, not the institutions and principles of the Constitution that the Founders relied on as the guardians of our liberties. The separation of powers, the federal system, the bicameral legislature, the free and frequent elections, the independent judiciary, trial by a jury of our peers, and so on.

Nothing could be more absurd than to think that the Constitution provides authorization for armed resistance to the constitutional order when it is not to our liking.

The right to resist is not in the Constitution because it is legitimately resorted to only when the constitutional system has broken down completely and given way to unlawful tyranny or no government at all, when the rule of law has been destroyed and the Constitution no longer has any authority to exercise. It makes no sense to claim constitutional authority for such resistance.

Taking up arms against government authority is indeed dealt with in the Constitution in Article 3, Section 3 ,not as a defense of liberty as the gun advocates would have us believe, but as the very definition of treason.

Treason against the United States, the Constitution reads, shall consist only in levying war against them.

Thank you.

MR. FORTIER: Bob Cottrol.

MR. COTTROL: Yes. What I'd like to do, I guess, is to spend my time saying a few words about language and history and how that can help us to understand the Second Amendment, if you will. I think it's important to understand that the Second Amendment has to be seen within the context of essentially linking three constitutional moments in our history.

The first came before we were a nation, namely, the English Bill of Rights of 1689. That document has a provision securing the right to arms for Protestants, who were, at the time, 90 percent of the English population.

Also it's part of, obviously, the U.S. Bill of Rights, the ratification of which is occurring between 1789 and 1791, and it's also a part of that constitutional moment which was the Fourteenth Amendment, 1866 through 1888.

I'm concerned, in this debate, with the importance of language, and basically how did the Framers see not only what they were doing, but, indeed, what had gone before them? What did they perceive of as the bundle of rights that they had fought the revolution for and that they were, indeed, trying to preserve with the new Constitution?

Now in doing this, I'd like to assume the kind of arcane theories of linguistic analysis that we often see in law and literary journals these days. My favorite phrase on that I guess is deconstruction. I'm still trying to figure out reconstruction.

So I want to look at plain meaning in this discussion. First, let's consider the text of the amendment. I often think that the people who argue the collective rights view almost have it exactly reversed. It's not in fact a matter that the right to keep and bear arms is dependent on the well-regulated militia but, rather, the well-regulated militia is indeed dependent on the right to keep and bear arms.

The command or imperative part of the amendment is the right of the people to keep and bear arms, the second clause.

The first part, I would submit, creates no legally binding language. It doesn't now; it doesn't in 1789. Imagine an absolute tabula rasa. There's been no Court decisions on the Second Amendment, no interpretive essays on the Second Amendment, absolutely nothing.

An attorney walks into court and says a well-regulated militia being necessary to the security of a free state. What can he claim from that? There's no command there. There's no limitation on government or expression of individual rights in that phrase.

It's the second that contains the imperative, that contains the limitation on government or the expression of a right of the people.

What is meant by "the people"? Well, I think we have to look to the rest of the Bill of Rights. The rest of the Bill of Rights speaks of the right of the people to peacefully assemble and petition in the First Amendment. The Fourth speaks of the right of the people to security in their homes.

The Ninth speaks of retention of other rights. Are we really to believe that Madison and his colleagues meant something else by "the people" with the Second Amendment? It's possible; highly unlikely but possible.

But it's interesting that the advocates of the collective rights view have failed to come up--and believe me, they have looked assiduously--they have failed to come up with any contemporary statement supporting the notion that the people at the time, that anybody at the time read the people differently in the Second Amendment from the way they read them in the other amendments.

I think we can get something also from the debates and, indeed, from meaning, from the final language of the amendment, and also language and alternatives that were rejected.

The Second Amendment had its origins in four related but distinguishable proposals that were before the Congress.

One was the prohibition on a standing army. Second was the protection of a universal, that is, all adult men or all free adult men, or at a minimum, all free adult white men. Protection of a universal as opposed to a select militia and to safeguard state control of the militia.

Three, to provide exemption for those with religious scruples from militia service, and four, to safeguard the right of the people to keep and bear arms.

What do the debates and the alternative proposals shed on how to interpret the final amendment? Well, first of all, we have clear evidence that they knew how to right a collective rights amendment, if they were interested in doing so.

Roger Sherman of Connecticut proposed an amendment that in fact would have been a states rights or collective rights amendment. His amendment was "The militia shall be under the government of the laws of the respective states when not in the actual service of the United States, but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them, but military service shall not be required of persons religiously scrupulous of bearing arms."

That I submit is what a collective rights or states rights amendment would look like, or at least one possible way of doing it. They knew how to do that if they were so inclined. That was rejected. That was not taken up. That was not the amendment we have.

What about the religious exemption? Well, it was imposed, in part, because it was believed that it would interfere with the universality of the militia, the idea that you would get the whole free adult male population as part of the militia.

Final language also is interesting because in the Senate there was a proposal to add common defense language next to the right to bear arms.

This was defeated, indicating, once again, you know, they had collective rights alternatives in front of them, and they in fact rejected them.

I think the Senate's particularly interesting because two historians, Sol Cornell and Jack Rakov [ph] were both advocates of the collective rights view, have pointed out that the Senate was in Federalist hands and much more conservative and much more predisposed towards the collective rights view, and yet even the Senate rejects this common defense language.

What about Madison's placement? I think that something else that we have to consider is the placement that Madison originally wanted. Originally, he wanted to interleave the Bill of Rights into the text of the main body of the Constitution.

He first wanted to put it in Article 1, Section 9 of the Constitution, making it clause three, along with a bill of attainder and individual right, the ex post factor clause, and near the habeas corpus. In other words, in the portions of the main body of the Constitution dealing with individual rights.

He contrasts this with his original placement of, for example, the Seventh Amendment, the civil jury trials, which he wanted to place in Article 3 dealing with the judiciary.

Their concern was with a universal militia, and a universal militia, I would argue, equipped with their own arms, which indeed is called for in the first militia act of 1792.

This is seen as having political and moral as well as military purposes. Madison in Federalist 46 speaks of the advantage of being armed which the American population has, and sees it as a replacement for--not as a replacement for a standing army but at least as a potential counterweight.

I would disagree with Dr. Goldwin to a certain point. Yes, the Constitution does not offer a right of revolution but, certainly, under either the individual or collective rights view of the Second Amendment, we have to see that as either the militia or the people as a whole, as a counterweight to the potential excesses of a standing army.

This, by the way, is a point that even that arch Federalist, Hamilton, conceives in Federalist 29, when he says, "Let the people at large be armed, but let's have a select militia because they know what they're doing."

Madison, by the way in Virginia, in the Virginia convention discusses the militia as enforcing law as an almost super posse comitatus, the posse comitatus being the emergency impressment of the citizenry to enforce the law, again with their own arms.

Every statement we have from the founding era speaks of it as an individual right, whether we're talking about T...[?] Cox, Noah Webster, Samuel Adams, George Mason. Blackstone, I believe, is the key that links these three constitutional moments. The Framers are certainly aware of Blackstone and Blackstone speaks of the right to arms in the English context as the fifth auxiliary right, one of the rights which are necessary to make the primary rights of Englishmen, the right to life, liberty and property secure.

Blackstone's importance increases in the 19th Century. Blackstone is the primary vehicle by which American lawyers in the antebellum era learned the basics of the common law. The first edition of Blackstone in the United States is published in 1803 by America jurist and commentator St. George Tucker.

St. George Tucker writes an annotated version of Blackstone and one of the things is he does a commentary on Blackstone's discussion of the fifth auxiliary right, of the right to arms in England, and discusses how much more robust the right is under the American Second Amendment.

Certainly antebellum jurisprudence, if we look at it, takes the Second Amendment as an individual right. We see it in such state cases such as Lumpkin v. Nu--Nunn v. State, rather, in Georgia. Justice Story speaks of the right to bear arms as "the Palladium of liberty." Taney, in Dred Scott, clearly sees it as an individual right.

And all this I think leads us to the Fourteenth Amendment. It's certainly I think clear, that if we look at the debates over the Fourteenth Amendment, there's an intention through the privileges of immunities clause to make the Bill of Rights and particularly the First and Second Amendments applicable to the states. Jonathan Bingham, Jacob Howard, and others make that quite clear.

Now we can get into the incorporation controversy and precisely what it is the Supreme Court has done with incorporation in the 20th Century, and I think they've done a rather clumsy job of it; but that's another set of issues as opposed to the issue of what it is the Framers of the Fourteenth intended, and I think the historical record is fairly clear on that.

Let me just conclude by saying I think it's important to look at the text through the eyes of the historical actors. The text, it seems to me, is not really ambiguous, and, indeed, almost nobody saw any ambiguity or any collective right in the Second Amendment, it's curious enough, until the 1960's and until the national gun control movement.

It was a view that was virtually unknown before the 1960's. But even if you say that the text is arguably ambiguous, and I don't think it is, why do all the existing sources point to the fact that Americans of the late 18th Century, of the antebellum era and the Reconstruction period, and indeed, beyond, all read the Second Amendment in individual terms?

Where is the evidence that anybody, until the 20th Century, read it the other way? One final note on Dr. Goldwin's point. I think there is a fallacy that often arises in the Second Amendment debate and it's the fallacy of the absolute right. You know, does the Second Amendment mean there's an absolute right to arms? If one says that the Second Amendment doesn't protect a right to arms but perhaps the Ninth Amendment or some other vehicle does, does that mean an absolute right? Well, of course not.

The absolute right, it seems to me, is a fallacy and is a "straw man." The question is within the context of a right to arms, what, indeed, becomes reasonable regulation? Thank you.

MR. FORTIER: Akhil Amar.

MR. AMAR: It's a great privilege to be here in the nation's capital on Lincoln's birthday, and I mention Lincoln, in part, because he's what we have in common in this room today, and the country outside. Our parents and grandparents and ancestors came from different parts of the globe, professed different religions, come from different cultures, but we share a national narrative. Lincoln is very much at the center of that. So is the Constitution, including the Second Amendment, and including the reconstruction amendment as well, the Fourteenth Amendment, and also state constitutions which talk, current state constitutions which talk about the right to keep and bear arms.

So like Bob Cottrol, I'm going to talk about three moments in our national narrative, but less the English background and more, I'll start with the founding, move on to the Reconstruction, and then say a little bit also about the current state of state constitutional law which uses this phrase, "keep and bear arms."

The Constitution itself, it seems to me, invites just this kind of attention to, actually, the national narrative, the history of the American people underlying the text. The text is actually written in a chronological way. The amendments were not interleaved into the original document but added as chronological postscripts and post-postscripts, and in that way, actually, the very ordering of the constitutional text calls attention to history. There's layers and levels.

It's like when you go to the Grand Canyon and you see the epic history just visible to the naked eye, the sedimented layers of different geological events or in a constitutional context, different things that happened to the American people that left a textual trace.

So the original Second Amendment, as Dr. Goldwin I think has identified, is very much a product of the American Revolution. So that's a revolution waged in the name of liberty and localism by local governments against a central imperial authority with a paid professional volunteer standing army of mercenaries and Hessians, and foreigners, they're outsiders, and so the American Revolution is a localist revolution.

The heroes of that story are the amateurs, organized locally, the local militias of Concord and Lexington and Bunker's Hill, and you see--and the fear is of a central standing army. So the original Constitution has lots of provision that Dr. Goldwin mentioned, that juxtapose a central standing army against local militias, with a preference for local militias.

It's fundamentally the Second Amendment, which is an elaboration of these ideas, is at its heart, I think, a military amendment. Since Bob Cottrol invited us to attend to location of text, it's right next to the Third Amendment, which is about the quartering of troops, again an anxiety, but what we would today call a military industrial complex, a culture within a culture that might have its own values and might, distanced from the underlying society and might run amok.

And you see that idea in the phrase "bear arms," which is a military phrase, and the work militia which has a military resonance. But I think you see it in the larger grammatical structure of these two different clauses.

My 6th grade teacher, Ms. Taylor, would say that this thing looks almost like a dangling--there's almost like a dangling modifier. Well, the first clause says militias, the second clause says people. But it's not ungrammatical, if people means militia and militia means people, which was clearer in an earlier version, that said "a well-regulated militia, comma, composed of the body of the people." The militia is, comma; the militia are the people in arms.

We don't quite have something like this today in America. Here's our image today. Militia. Paid volunteer, semi-professional, sort of National Guard. We're not them, quite. And people, we think individuals. Those are very different. Individuals, women, children, or a paid professional militia.

The Second Amendment is written against a backdrop when the world was different. People here means the political people, the polis. We, the people, do ordain and establish the Constitution. Women actually aren't quite part of that process. The people who have a right to assemble in the First Amendment are, at their core, a political people who can assemble in conventions to modify the document, right to retain and reserve to the people, in the Ninth and Tenth Amendments, have a kind of political resonance.

The Fourth Amendment is different. It talks about the word persons. It's the right of the people to be secure in their persons as individuals, houses, papers and effects, and so it has more of an individualistic dynamic.

But people here is, in fact, the voters. So women aren't quite part of the militia and they're not quite part [of the] vote. So people means, in fact, voters. That's who your militia are too. They're basically everyone. They're not paid professional, culture within a culture, National Guardsmen. They are a part of the general society that has an obligation to do part-time mustering on the town square. The more I think about, I said think about the jury. The voters are the jurors, the jurors are the voters, it's localized locally, as are militias, and the jury can be a grand jury as well which helps in the prosecution of laws, and the posse comitatus is just kind of an extension of that, and the militia is linked to that.

What are militias? They're just jurors with guns in their hands, but it's people, the citizenry, not Hessians, not foreigners, not on a volunteer basis, not individualistic, not quite guns in homes at the core, but a collective localist structure that doesn't quite exist today.

We see it with juries but it doesn't quite exist in our military policy. If you want to try to see what it was like 200 years ago, think Switzerland, think maybe the Israeli army or something, where sort of it's the people in arms-

MR. AMAR: [continuing]. So the militia are the people, the people are the militia, bearing arms is paradigmatically military, it's next to a Third Amendment and it's localistic in nature, and there's an anxiety about a central standing army.

If you look at it that way, Second Amendment, which today is so central to gun control debate, is actually much more like the question, really, about does our military today really look like America? It would be issues like after the Nineteenth Amendment, women in the military, or blacks, are they--after the Fifteenth Amendment in which they were made part of the people, and the Nineteenth Amendment when were made part of the people--are they integrated on equal terms within our military structure?

This is part of a Constitution that has concerns about whether the representatives in Congress are going to look like us or not; whether our juries are going to look like us or not. That's the core set of concerns.

I don't, by any means, now, mean to deny that you couldn't read it more broadly. Many other amendments have been read broadly. We don't limit the First Amendment right of the people to assemble, just to political conclaves of voters, it can be read more broadly, and so too this language.

Especially when you remember that almost all adult male voters are part of your militia and they have their guns, and they're keeping them in their homes, their private homes. It's capable of being read more broadly.

But the moment of the founding, just to get a clear picture of it, it's about Minutemen bearing guns, not Daniel Boone gunning bears. It's not quite about hunting and an individualistic [inaudible]. Now fast-forward to the Reconstruction.

Now this central standing army, of which there was so much anxiety at the founding, well, it's beginning to look a little bit better after Gettysburg and Vicksburg, and these local militias, well, we have some more doubts about whether they really protect liberty or not. They just waged, not to put too fine a point on it, treason against Mr. Lincoln and his government, which is right after Goldwin ended, and in this story now--so our national epic gets rewritten and we have a different and more celebratory view of the national army.

So now they're not them, they're us, they're looking for a few good men, it's Tom Hanks and a multiracial, multicultural band of brothers in World War II. That's a different national narrative than anxiety about this central standing army that can't be authorized more than two years at a time, and the local militias are disfavored and more individualistic view of the right to keep and bear arms.

The key language here is the language of the Fourth Amendment. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

What are those privileges and immunities? Now that's individual is a privilege. It's privacy, it's less personal about people, political, more individualistic. Among the privileges and immunities of individual citizens, women included as well as men, blacks as well as whites, even though they're not yet voting, is the right to have a gun in your home for self-protection.

This is especially important because blacks cannot trust local police forces to protect them from private violence, from Klansmen.

So founding vision, when arms are outlawed, only the central government will have arms, Reconstruction vision, when guns are outlawed, only the Klan will have guns. Now it's more individualistic, it's more private. Women have this right.

Let me read you, actually, a sentence from the key civil rights act of 1866. This is the companion statute to the Fourteenth Amendment. It's a companion to the Freedman's Bureau bill, and it affirms laws concerning personal liberty, personal security, and the enjoyment of property, real and personal, including the constitutional right to bear arms. So now "bear arms" here is not being read in a paradigmatically military way but a private way. Individuals need this right in their homes to protect themselves, and the NRA is formed after the Civil War, and it's not quite as self-conscious, I think as it should be, of the Reconstruction story as influencing its worldview about rights, in general, and gun rights, in particular.

On this view, among the other privileges and immunities of citizens--speech, press, religion--but these are rights not just against the Federal Government but against states as well.

That's if you think that the Fourteenth Amendment, which doesn't specify all the privileges and immunities but says that they're out there--if you think--one way to look at is what did they think were the fundamental rights and freedoms, privileges and immunities?

One of the things that they thought was fundamental was a gun in the home, and they read Blackstone who says this, and Blackstone's more influential in 1865 than he is in 1789, because in 1789, who is he? He's an English guy who sided with the British against Americans, and you can rely on him a little bit but there's some anxiety about that.

But 80 years later we can, fourscore years later we can forget that a little bit, and he's how Lincoln learns his law, on his own, reading Blackstone.

But here's another way of understanding what are fundamental rights and freedoms, privileges, and immunities, maybe even also, glancingly, alluded to in the Ninth Amendment. What do Americans today think that their fundamental rights and freedoms are? and maybe not a fixed-in-time idea but an evolving idea, and one place to look, if judges aren't just going to look in their own guts, which makes me very nervous, would be to look at state constitutions and state practice.

When you do that, you actually find the phrase "bear arms," which 200 years ago was emphatically military, and a host of state constitutions explicitly linked now to recreational use of guns, and self-protective use of guns in homes. Many of these state constitutional amendments were adopted in the '70s and '80s. I think there was probably, it seems to me, some maybe organized campaign behind them.

The NRA may have been very much lobbying for them. But words change their meaning over time. "Bear arms" meant something different in 1866 than it meant in 1789, and modern state constitutions have a much more individualistic vision of the right than the Founders did.

One final thought. The world is so different from 1789, not just cause you've got different military technology that's a lot more dangerous, and legal institutions that once existed, like a militia on the town square, that mustered, that no longer existed.

But on the right of revolution, the Founders were slightly paranoid about government, but, you know, even paranoids have enemies, and there was a good reason to be paranoid 200 years ago. We had just fought a war against an imperial empire. The history of the planet was such that there'd never been a democracy that could work on a continental scale. You don't know if the First Amendment's really going to work out or not.

So there's very good reason to be skeptical and to have the Second Amendment in reserve, if the First Amendment fails.

I think, actually, our national experience over 200 years has meant that there's less reason to be quite as paranoid today or uncertain as there was 200 years ago, and so these folks today who actually do sound, in Montana and elsewhere, who sound a little bit like the Founders in their paranoia of central power, aren't quite like the Founders cause they're ignoring the last two centuries which the Founders did not ignore in their own lifetimes.

So this is one of the reasons it's such a complicated amendment. The world, 200 years ago, even a 100 years ago, is so different, legally and socially, than the world today.

MR. LEVINSON: First, I want to express my very deep gratitude for being invited to this event.

I also want to ask John if you'll let me know when I've spoken for twelve minutes, and then just cut me off at fifteen, because there are four points I'd like to make, and they could go on indefinitely. So this is a genuine request.

The first point is really probably the most abstract one, which involves the notion of looking for a true interpretation or a true meaning of the Second Amendment. This opens a mare's nest of issues in basic constitutional theory.

One obvious debate is between originalists and non-originalists, just to put things on the table. I'm a decided non-originalist. So although I think the issue of the historical origins of the Second Amendment are fascinating, and it is what originally drove me to write the piece that you mentioned in the Yale Law Journal, and I certainly agree with both Bob and Akhil, that the Fourteenth Amendment is also a gripping part of the history of interpretation of the Second Amendment, for me, what people long ago thought it meant is not dispositive evidence as to what it means for us.

I'm much more a partisan of what Akhil's colleague, Bill Estridge [ph] calls a dynamic interpretation, that is, where you have to look at the history of interpretation of a patch of text and not simply a moment frozen in time, and one of the paradoxes of the debate that you've already seen is that you have what, for lack of a better term, might be called 1787 or 1789 originalists, and 1868 originalists, and as a matter of fact I kind of agree with both of them.

I don't completely agree with Professor Goldwin and I'll get to that in a moment, but I do agree, by and large, with Professor Goldwin and my friends, Jack Rakov and Paul Finkelman, who's made similar arguments, that if one is looking at the original understanding of the Framers of the Second Amendment, that is, members of Congress, then the understanding sketched out by Professor Goldwin might well be correct.

But so what, if one also believes that the understanding of the Fourteenth Amendment sketched out by Bob Cottrol and Akhil Amar is correct, and there you have to talk about well, who should prevail, given that you have very shifting understandings of what this patch of text has meant.

Now where I disagree with Professor Goldwin and my friends, Jack Rakov and Paul Finkelman, is that even if one is a 1789 originalist, there's no good reason, I believe, to privilege the understandings of the people who wrote the amendment as against the most likely understandings of the people who ratified the amendment and in fact gave it content as part of both legal and popular ideology.

This of course is a basic split within the camp of originalists. You have so-called original intent buffs who try to recapture, as much as possible, what it is that authors meant, and then you have original understanding buffs who quite correctly point out that what really gives meaning to a text is not necessarily what its authors intended but what the reading community, at a particular time, would have thought the language meant.

This is true of constitutional amendments. This is also true of statutory interpretation and the like, and even if one concedes, therefore, that a federalist Congress, quite suspicious of the people, might have been trying to write as restrictive an amendment as possible, I don't think they successfully did it by adopting this language.

I disagree with my friend Bob Cottrol, that plain meaning really leads you to see one understanding or another. It does seem to me, though, that the historical record shows that most people who interpreted the Second Amendment gave more what has come to be called an individual rights reading--and I'll return to that in a moment--than the focused militia reading, and Bob mentioned, and I think it's very important to mention the Dred Scott case, because I think the Dred Scott case, at one and the same time, is the most despicable case in our history but also one of the most genuinely interesting and informative about the development of American popular legal norms.

The reason blacks could not be citizens, not to put too fine a point on it, is because citizenship really mattered. It brought with it a whole bunch of rights and one of these rights, according to Chief Justice Taney, was the right quote, "to keep and carry arms wherever they went," unquote.

Now if you think about it for a moment, it makes no sense to interpret this as the right to carry arms in a militia of the strong organized state-run variety. It is much closer to what is traditionally, or has come to be called an individual rights reading, and Taney was not simply an outlier. The Republican Party platform of 1856 was the first platform to refer to, quote, "the right of the people to keep and bear arms," the Second Amendment, but this isn't phrased within the right of a well-regulated militia, et cetera, but, rather, you have an insurgent political party claiming that the right of the people to keep and bear arms was not being adequately protected and if they were brought into power [audio blip] that would do so.

Interestingly enough, the 1864 Democratic Party platform also referred to, quote, "interference with and denial of the right of the people to bear arms in their defense," unquote.

Now one of the points of invoking both the Republican and Democratic platforms is not simply to show that there was a certain kind of political consensus by this time. That there might be a robust right to keep and bear arms. But also to underscore how scary this right can be. Because when the ordinary person read the Republican platform, the first thing that came to their minds was radical abolitionists, John Brown, ultimately, you know, and this is scary.

Then, in 1864, you read the Democrats, and when they're talking about the right of the people to bear arms in their defense, given "copperhead Democrat" and the like, this might not be the most reassuring message to a Lincolnian, and it's simply a matter of fact that of course the Second Amendment has always been caught up in the political passions of the times and views as to what sorts of people are being denied a right to bear arms, and what in the world might happen if these kinds of people got arms.

It's very rare that there's a consensus that, well, it would be just fine if people we mistrusted, indeed, despised, really enjoyed a vigorous right to bear arms.

Now the dynamic interpretation of course continues. For better or for worse, you have Miller v United States in 1939, which in turn generates literally hundreds of lower court cases that rather mindlessly follow the Supreme Court on this issue, which generates a far, fare more limited understanding of what the Second Amendment means.

I don't wish to defend this particular understanding anymore, quite frankly, than I'm particularly committed to defending these other understandings. The point that I want to make is that, inevitably, one's understanding of the Second Amendment is going to be something more, I think ought to be something more than simply trying to figure out what some group of people in the distant past meant or thought the language means. We always have to talk about what it is that makes sense for our own society in our own time.

With regard to the point that Professor Goldwin invoked and that usually comes up in these debates, that is, the difference between an individual right and a collective right view, I want to argue that demonstrates the fallacy of the excluded middle.

When people talk about the collective view, they're almost always referring to the idea of a state-run militia. On the other hand, when people talk about an individual view, they often invoke the notion of fairly atomized individuals using guns to hunt or to protect themselves against ordinary criminals.

I think that is a fallacy. I agree with Bob and Akhil, that the collective rights view, if it's defined as restricting the right to bear arms, simply the members of a state-run militia, is too restrictive, but I also disagree with the view that it is plausible to understand the Second Amendment as having anything to do with hunting.

There, you and I completely agree, or, quite frankly, that it has much to do with the rights of ordinary individuals to protect themselves against burglars, cause I think even the most paranoid of anti-Federalists really didn't think that the national government was going to be in cahoots with ordinary criminals.

Rather, I think that the excluded middle, I would prefer to use the term communitarian, rather than collective or individual. That is to say, the vision, for better or for worse--people can obviously differ on this--the vision is that individuals possessing arms could, as a community ,rise up against a potentially tyrannical national government.

But the whole point of arms, particularly then, was that an individual, him or herself, was not going to be an effective revolutionary. You had to engage in a communal activity. You had to persuade other people that there was in fact good reason to rise up.

Now this relates the contemporary debates about the scope of a right to bear arms, if you think that the Second Amendment does have a reasonable robust meaning, for me, this provides a knock-down answer to the notion of well, do you believe that an individual has the right to possess a nuclear weapon? The answer is no, because that would allow the individual to be a tyrant, every bit as much as one's most paranoid fantasy of the state.

That to allow any individual to possess an arm that could be so dispositive as to preclude the necessity, actually, to persuade other members of the community that there is something "rotten in the state of Denmark," would itself be precluded by the Second Amendment, which does have this vision of a community and not of isolated paranoids being able to inflict significant damage on the government.

So that's the first major point. Have I done twelve minutes already? Okay. Racing through the next, actually two points, because I've done the second one as well. The third point has to do with the title of my piece in the Yale Law Journal, "The Embarrassing Second Amendment."

That was focused, frankly, on the extent to which my fellow political liberals were embarrassed by the Second Amendment, in so far as most people that I hobnob with like gun control, don't really take the Second Amendment seriously, thought that the last word on the Second Amendment was provided by Chief Justice Burger in a Parade magazine article on its meaning.

The point of my article was to say this just isn't playing fair with a really interesting part of the Constitution, that ought to be studied and debated rather than airily dismissed. Now in these precincts, it might make more sense to talk about why some conservatives are embarrassed by the Second Amendment, and I think the reason really is brought up in Professor Goldwin's last point, that the conservative embarrassment with the Second Amendment is that, especially if you're an originalist and if one agrees with the Cottrol/Amar reading, is that it really does evoke a certain right of the people to overthrow a government.

It doesn't simply refer to nice placid hunters, or even people in John Lott's vision, protecting themselves against a burglar who breaks in at night. But, rather, it takes very seriously the possibility of sedition and armed overthrow, and thus the attempts to deny that the Second Amendment has anything to do with that.

Now I don't believe that the Constitution authorized revolution. I do believe that the Constitution recognizes that we come out of a revolutionary heritage in which a government that was thought to be legitimate by most lawyers of the time was overthrown by armed rebellion led by George Washington, and so the Constitution, I think, can legitimately be read as saying that we have to take certain risks.

It's easiest to make this argument with regard to the First Amendment, where most, though not all constitutional interpreters, but I think there's a broad-ranging consensus today, that the First Amendment allows a variety of seditious speech, that can't be suppressed until there really is a significant danger to the state.

We have to run the risk of increasing the danger to the state and hold off until that danger is really very significant.

Similarly, with the right to bear arms. That does undoubtedly generate a certain risk to the state but I do believe that one can say, well, until you pick up your arm and make the appeal to Lott's heaven, you can't be suppressed. There is no serious argument that the state must recognize a right to revolution, and cannot punish people who pick up their arm and march toward Washington or toward Austin, or whatever it is.

But what we are talking about is what kinds of risks must be accepted in a free society, and it does seem to me a plausible argument, whether or not I think it's the one true argument--I think reasonable people disagree on all of this--that it is a plausible argument to say that our particular notion of a free society must run more risks than less free societies. That's one of the meanings of a free society.

MR. FORTIER: We'll have a little time for discussion here. Let me throw our three areas for discussion and hopefully provoke a few fights.

First, on the founding era, the most vociferous advocates of an individual right to bear arms, or maybe I shouldn't use the term "bear arms," for purposes other than simply military purposes were anti-Federalists who wrote outside the Constitutional Convention, often, and had originally advocated for a Bill of Rights, but as Bob has shown a little today, and certainly very extensively in his book, Madison was not a friend of the anti-Federalists and didn't introduce all the amendments that they would have liked. In fact anti-Federalists opposed many of the amendments that were passed through the Congress.

How does that affect our understanding of the Second Amendment? How the more individual rights-oriented statements of the anti-Federalists, how should we judge them, given the history of how the Bill of Rights came into being?

Second, the Fourteenth Amendment. Three of the panelists have addressed the Fourteenth Amendment. Are we happy to say--I think there's agreement that there was a more individualistic interpretation of both rights in general, but of the Second Amendment, that this was an individual right rather than one bound up in militias.

But are we in agreement that there was [inaudible] as to incorporating the Second Amendment as an individual right, applying it to the states as the Supreme Court has not chosen to do, more complicated than that? Was there a collective aspect to it which made the incorporation or [inaudible] to the states more complicated?

Finally, we've talked a little bit about relevance today but are we all willing to say that there's not so much relevance as to the interpretation as to what sort of regulation would be permitted for guns, or could we have a little discussion about the way these different interpretations would affect current legislation?

MR. : I'd like to address, I guess, the Fourteenth Amendment question because I think that the Second Amendment has suffered from what I would call two great episodes of constitutional denial in American constitutional discourse.

One is the denial of the Second Amendment, which is sort of a sin of liberals, by and large, that Sanford Levinson has been trying to address since his article. The other, the sin of conservatives, which is a neglect of the Fourteenth Amendment and the incorporation doctrine.

You know, I think that the anti-incorporation arguments tend to be incredibly weak, when we actually stop and look at it. That if we look at the record of the 39th Congress, at what is said, I think incorporation is fairly clear. There's no real contesting of the idea of incorporation, and the anti-incorporation argument tends to be really argued on the kind of periphery of the issue rather than facing is squarely.

Now having said that, I think the Supreme Court, institutionally, has done a very bad job with incorporation. It kills off the privileges or immunities clause, which is the original home of incorporation, the slaughterhouse, and then does a sort of jury-rigged selective incorporation in the 20th Century which is totally unsatisfying and totally indefensible intellectually.

So that, you know, I can't blame anybody for being dissatisfied with incorporation, given the way the Court has gone about doing it. But I think if we return to, you know, what was the intentions of the 39th Congress, I think the record, the evidence for incorporation is strong and the evidence against it is very weak, and I would obviously include the Second Amendment as among the rights that they indicated they intended to incorporate.

MR. : If I can just add a couple of words to what Bob has said, and here I'm not telling him anything he doesn't know, because in fact I've learned a great deal from his articles on race and the Second Amendment.

I think that one has to recognize the fact that Taney's understanding, though expressed in a quite extreme way, was not necessarily an outlier's understanding. So that I think that it's no coincidence that the earliest Second Amendment cases involve the Klan or blacks possessing arms, and I think that one of the grim realities is that the judges engaging in the original interpretation of the Fourteenth Amendment, weren't that much more enamored of what one might be called robust black citizenship than Taney. They certainly were more liberal than Taney with regard to blacks having basic rights of citizenship, that is, the right to sue and be sued, own property, testify in court and the like.

But one of the things that is so interesting and rich about Dred Scott and one of the reasons that I hope my fellow members of the legal academy will spend more time reading Dred Scott and not merely denouncing it, is that it really does spell out a robust notion of citizenship, and I think that [audio blip] an interesting kind of reversal with regard to the point I made with regard to Professor Goldwin's presentation, where, if you look at the original intentions of the people who framed the Fourteenth Amendment, I think they're exactly what Bob has described.

On the other hand, if you shift to original understanding of the people who ratified, and then the people who immediately started interpreting it, the record is obviously much, much more mixed, so that once again, even if you're an originalist, you have to decide whether you're going to focus on [audio blip] Howard, or on the ratifiers of the states, and of course you also have a special problem with the Fourteenth Amendment that Bruce Ackermann [ph] has especially emphasized, the circumstances of its ratification, that is, ratification at the point of a gun by the Confederate entities.

That also I think inevitably complicates things, and I think quite bluntly, the courts that started interpreting the Fourteenth Amendment were more sympathetic at the end of the day with Andrew Johnson and so-called moderate Republicans than they were with the radical Republicans, and therefore they really wanted to minimize the meaning of the war and the meaning of the Fourteenth Amendment.

I mean, again, this is a reason why it is so appropriate that we're having this discussion on February 12th.

MR. ORNSTEIN: I'm Norm Ornstein of AEI. I'd like to ask you, given the interpretation the Justice Department has now given to the Second Amendment, if you would address your own feelings about that, but also whether the reasoning used by the Justice Department, if there is an extensive amount of it that we can turn to, satisfies your own tests.

MR. : The little bit I've seen of their reasoning is that there is no reasoning in it. They are following a federal District judge's skimpy historical account, and he picked it up from certain law professors' articles, and they've simply endorsed it without really providing any reasoning of their own.

MR. : You know, probably three of us on this panel are conflicted out with regard to expressing, you know, detached views of either some of the lower courts, these days, or the DOJ. I think one really serious issue presented, and here I will answer your question but also go back to some of my comments about taking originalism seriously, is that there's no reason to think that judges are skilled historians, whether they're coming out with liberal opinions or conservative opinions, from my point of view kind of doesn't matter.

There's an opinion that I presume you would be much more approving of from the 9th Circuit, last month, that also makes, I think at the end of the day, fairly offhand reference to the work of Jack Rakov as presenting the last word on the meaning of the Second Amendment.

I think that a very real issue is whether you want judges to start kind of playing the role of historian, I'm not really a historian but I play one on TV ,because I think inevitably, even if they write better opinions than the Emerson opinion in terms of, you know, depth or off-handedness or the like, it's still going to be what was referred to several decades ago after Brown v. Board of Education, law office history.

That lawyers just aren't equipped, either by training or by temperament, to write a scholarly essay in which they say, well, look, there's something to be said on one side, there's something to be said on the other side, it's really complicated, but at least today, reviewing the record, this is my best understanding of what was going on.

Instead we write briefs which end up arguing, look, there's only one way for a person to look at this, and either Professor Rakov of Don Cates, depending on which side you're on, provided that way, end of discussion. This isn't serious historical inquiry.

MR. : I'm not sure that we can avoid having judges play historian at some level. I think I disagree with Sandy, that at some level--and we can debate which level--original intent and original understanding is important, that--and I think, you know, the Second Amendment may be a very good illustration of that.

Because here we're arguing about fundamental meaning and not degree of effect that we're going to give a particular constitutional provision, and at some level we have to make a decision on what was it originally intended to mean, and then once we make that decision, we can decide what follows from that. But at some point we have to do the historical work, we have to come to a historical conclusion.

We can't just simply say to judges, you know, forget the history, give us some interpretation. History's fundamental to the interpretation.

MR. AMAR: There were, I think, two different executive interventions. There was a letter sent by John Ashcroft with his official letterhead, and then there as a change of policy announced by Solicitor General Olson in a brief to the Court.

I remember, when I saw the Ashcroft letter, which I think actually sort of cited my work, I sort of smiled a little bit, cause in the first half of one's career one's never cited for things one did say, and then in the second half apparently one is cited for things one didn't say.

Because I thought, well, gee, my position actually was a little bit more nuanced than that, and if he's saying that about a current text that ma be pretty accessible, how much more complicated it is when there are 200 years between--

MR. : Better call the author.

MR. AMAR: The interpreter. I think here's the real issue. As Dr. Goldwin said, in his view, there's not that much end-of-the-day difference between Cates's view and his own, whether you think it's a right in the Constitution, subject to all sorts of reasonable regulations, see Don Cates, or something unenumerated, perhaps, but nevertheless entitled to some protection but just not unreasonable abrogation.

Here's what General Olson said in the footnote. "There's an individual right that we recognize but it's subject to reason, regulation," and he said "no federal law that we've reviewed would seem to violate our new understanding."

Now the D.C. case, which I guess was just filed, is going to be perhaps an interesting test, because that's not merely a licensing requirement but maybe a total prohibition, at least that's what its critics say, and there might be some unique issues about the District of Columbia and national security and the rest. That's also uncomplicated by any question of incorporation against the states or anything like that. It's direct application against the Federal Government.

But, see, on one model you could say, well, the Founders have had a problem with registering or licensing firearms. Well, 200 years ago you knew who had guns--everyone, pace Michael Bulio [ph], and so you might have thought well, the--and they were part of the militia, they were sort of--there was actually part of a process.

The idea that before you had a gun, you had to show you know how to use it. That wasn't so much an offensive idea 200 years ago. That was the militia muster, and if you have to pass a book test and a practical test to drive a car, you know, and if cars can be licensed, why not guns on the same model, and maybe even a tracing of ammunition and the rest. All those would be reasonable regulations that I think under the Olson position would be perfectly fine, even if there is a right.

But the D.C. flat ban on any gun in a home for private self-protection is where it might matter, and maybe Bob Cottrol knows more about the D.C. law than I do, but that's actually where you're going to see the first test of just what General Olson really meant.

MR. : Or, actually, the New York Sullivan law presents interesting issues with this, cause it's now standard First Amendment law, agreed to, I think, across the political spectrum, that Sheriff Smith can't have basically unfettered discretion as to who gets to march down Main Street.

But the way the Sullivan Act is enforced, I gather, it is pretty much unfettered discretion by New York authorities as to who gets a permit to carry a gun and if there's any kind of individual right, then that has to be unconstitutional.

That the public authorities, among other things, would actually have to give reasons as to why you couldn't have a gun, and those reasons would have to stand up before a court.

Again, I think all of us agree that there are all sorts of people who could be disqualified from having a gun but the question is whether public authorities would have to write a letter explaining why we have reviewed your application and we don't think you're gun-worthy, rather than just say, kind of, "Go away," or just send a one-sentence letter saying permit denied.

MR. : But if the [audio blip] of the authority is to, is challenged, under what provision would you challenge it? The right to bear arms or this unenumerated right is being denied or disparaged?

MR. : Well, in most states, as a matter of kind of legal positivist fact, I'd probably bring my claim under the state constitution because as Akhil has suggested, most states, again for better or worse, depending on your political views on guns, most states in fact do recognize some kind of right to bear arms.

If I'm forced to do it as a federal case, then, again, simply, frankly, on opportunistic grounds, I would bring it as a Second Amendment case, rather than a Ninth Amendment case, because I don't think the current Supreme Court is likely to offer very robust readings of the Second Amendment, of the Ninth Amendment, but I can imagine a majority of this Supreme Court saying, well, look, we do have this text, and we do have this history, and might support this kind of challenge.

But if we were talking about the Warren Court in 1966, I'd probably bring it up as a Ninth Amendment case.

MR. AMAR: And you might be advised to mention the due process clause, either of the Fourteenth or the Fifth Amendment. The Emerson case out of Texas, the 5th Circuit case, could have been just conceptualized as a kind of procedural due process notice case.

You walk into courtroom, having no idea that when you walk out the gun that's in your closet, in your house, has actually become contraband in that 30-minute hearing, and if they did that with toasters or cars, that might have raised some due process issues, and one sneaking path into more protection of guns, that may be the least doctrinal resistance, would be a kind of due process, it's a kind of property entitlement but maybe it gets a little bit more than other kinds of property--

MR. : Actually, I disagree with Akhil on this, because I mean I thought the most interesting part of Emerson, by far, was the argument that Akhil has just alluded to, but it's also very, very wide-reaching because it basically does accept the proposition that ignorance of the law can serve as an excuse, and I mean I happen to believe--and I would happily cite Richard Posner for this proposition, that in the modern administrative state where there are literally millions of regulations that people are ignorant of, that there is something to be said for ignorance serving as an excuse but precisely because it would be so potentially wide-ranging, the appeals court stayed away from this.

But whenever reporters called me about the Emerson case, I always said look, the really interesting and revolutionary part of the decision is the due process part, and they never were interested in writing about that because the Second Amendment is thought to be so much more dramatic.

MR. : [inaudible].

MR. : I'd like to raise a question for my fellow panel members, and perhaps the audience as well. Akhil's rightly said look, the Second Amendment was written in a very different time, a time when we were thinking of a universal militia, of all of the political people which would include the entire adult white male population, and now we're obviously in very different circumstances.

We have more than 200 years of history. Since then we also have a professional armed force and a semiprofessional National Guard and a Reserve.

Let's think of the current crisis right now, which is we are on the verge of going to war with Iraq. The National Guard is going to be largely deployed into the combat zone. We're also going to face a situation where large numbers of police officers are military reservists. In fact they constitute the backbone of the military police and the army and the security forces and the Air Force.

Should we revive the notion of the universal militia? Is our government afraid to ask us to

MR. : [in progress] that a universal militia might require, you know, and for the moment divorce it from the question of should it be with our individual guns in our homes, or should it be guns stored in an armory. But have we sold ourselves the idea that we can have this kind of separation of protector and protected that would seem very strange to the framing generation but yet what we consider to be perfectly normal? Should we be considering ways of reviving and modernizing that concept?

MR. : In light of an orange alert [inaudible].

MR. : Isn't that the most embarrassing part of the Second Amendment, which is that to give effect to that view, the historical understanding or the communitarian understanding, you really have to say that the people have to have military weapons and the government can't know who has them either. All the people have military weapons or the people are entitled to have military weapons and the government can't know who has them, because if the government knows who has them the government can take them away.

MR. : If I might-

MR. : And if the right is to bear handguns rather than semiautomatic rifles, it's not an effective collective defense.

MR. : Well, I think you're speaking of the Second Amendment in one capacity, which is potential resistance to the government and that's an arguable point with respect to that.

I'm speaking of it in the second capacity, potential support of the government. You know, sometimes we actually have to support our government and this may be one of them.

So if we're taking of our revolutionary cap for the moment and putting on our backing up of the government for another, we don't have those issues but we have another set of issues which is should we be demanding more universal participation?

MR. : Article I speaks of a federal pore to provide--Article I, Section 8, to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions. Lincoln invokes this in mid April after the fall of Sumter, and as Bob mentioned, the militia, actually, in this original communitarian vision has kind of a dual role.

Ordinarily, it exists actually to suppress the forces of anarchy and disorder. That's like a jury which ordinarily, actually, you see acts to convict the wrong-doers, and every so often if a jury, for example, thinks that the government is really the wrong-doer, it rises up and in effect nullifies or acquits and that has a sort of analog of the militia, in effect, which is not individuals one by one, but organized in communities and collectivities, sort of rising up and saying in effect we won't do this.

But that vision really presupposes a world where people are trained for citizenship. For example, they perform jury service on a regular basis, and that's a public school in which they learn their rights and responsibilities

It imagines a world where they regularly muser. It imagines a world where, for example, we would teach in our public schools gun safety. Apparently, you know, since Sandy invokes liberals and conservatives, the liberals want sex education, you know, but not gun education, and maybe the conservatives might want gun education but not sex education, and so this would be about rights, responsibilities, excuse me, as well as rights, and in that way it addresses some of the anxieties about just an unregulated free for all. Well-regulated is a phrase that we haven't quite talked about and it doesn't quite mean fully, just legal regulation, but it does have connotations of sort of orderliness to it, and community virtue.

MR. : If I could mention something just along the lines--I was once having a conversation with a fairly well-known gun control advocate and he said, "Well, don't you believe in any kind a gun control?" and I said, "Well, yes, everybody should go to the range once a year and have to qualify." The person said, "Does that mean, then, that if they don't, they lose their guns?" I said, "No. You don't get to go home until you do."

QUESTION: Ken Misugi [?], Claremont Institute. I went to a seminar sponsored by Don Cates, who was mentioned a couple times, and I strongly commend them. They're scholarly, and then, at the end, you get to go out and shoot automatic weapons.

QUESTION: But K...[?]'s made a point here and he put a great deal of emphasis on the phrase "bear arms," and I thought at the time it was kind of silly. But, on reflection, I think it makes--that is, the arms in question have to be something you can [audio blip] this can't refer to a Howitzer, or something, something like that. I think it's important because that would point to the individualistic element here while also keeping in mind the phrase "the people."

MR. : It's a point that he makes in his Michigan Law Review article, it has to be of a weight that one could carry. Two or three points. One, it's a linguistic reminder that actually even sort of, that words and phrases sometimes acquire terms of art. "Bear" might be the same as "carry." "Arms" is, in many dictionaries, synonymous with guns. But the phrase "bear arms" actually has a different resonance, or it did 200 years ago, than say the words "carry guns."

Two hundred years ago, there was a functional argument on behalf of this, which is Sandy Levinson's point, that the arms that one individual could carry couldn't really threaten all the rest of us.

"One man, one gun" was a little bit--one shot--especially when it takes a minute to reload your musket, is more like "one person, one vote." One person could not threaten lots and lots, given the weapons technology of what one human being could carry.

Today, you see, that's no longer true, because with a suitcase that can be carried, this entire city could be threatened. One madman. So there was a rough correspondence of capacity to kill and be killed, very important, let's say, in Hobbes, that conduces to a certain kind of equality that every person could kill or be killed by someone else.

But today--and think about that again. It's about the distribution of power. Like in the representation context, you know, Are we overrepresenting some people? Are the people who have military power an unrepresentative minority of the broader society, and with the new technology something could be borne, could be carried, but with a lot more threat to many, many more people than was true of the weapons technology 200 years ago, which might suggest we should take the idea of carry arms and translate it functionally rather than literally in terms of a weight or poundage requirement. Instead, a kind of capacity to threaten other people.

One of the restrictions that has been proposed, for example, for guns, is about the size of the clip you can get. Or how many bullets you can buy in any given time period.

MR. : But also should be pointed out to Don Cates that "bear arms" was strictly a military term at the time of the writing of the amendment, and that's clear from the successive versions, where serving in the military, in person, is replaced by the phrase, "to bear arms," and the fact that the understanding of it seems to have changed over the years doesn't change the fact that originally they were talking about establishing militia and that the whole amendment was considered the militia amendment.

Sandy referred to the fact that we have to think of how the phrase was understood by the people who ratified the amendment. But I don't know where he gets his information about the understanding of those who ratified the Bill of Rights, because as far as I know there's no record available, anywhere, of the discussions and deliberations in the many conventions and legislatures that ratified the Bill of Rights.

How you can refer to just a small group of people who originated the language as if they had no special standing, being in the Congress and deliberating, very carefully working on the language, and then a mystery occurred, that is, the deletion of phrases that would contribute to our understanding of the meaning of the key phrases, deleted by the Senate, and we don't know what their reasoning was, because the deliberations of the Senate at the time were secret.

All we know is their decisions, not their reasons. So I don't understand how we can diminish the significance of the obvious meaning of the phrases just because it has been misunderstood down through the years and acquired a different meaning.

But I still stick to what I think is the current meaning of "bear arms." Nobody says, in a movie, "Look out for that guy, he's bearing arms." They say he's got a gun, and the phrase "bear arms" I think has no real currency except from people who have taken it from the Constitution and are engaged in changing its meaning.

MR. : [Audio out.]

QUESTION: Mark Overstreet from National Rifle Association. I wanted to start out answering Bob's question about a potential revitalization of the militia. But there's so many things to talk about. It's like a guy in a candy store. You have to pick and choose; otherwise you hog the microphone.

I actually wanted to ask a question of Dr. Goldwin at some point, but let me first answer Bob's question.

As I understand it, the militia, ever since 1792, has been statutorily defined to include the great body of the male population. It's only a 20th Century development that the National Guard was identified as a subset of that and made a organized component. So perhaps all that's required to lead to a revitalization of the militia would be modern circumstances.

If the need arises, perhaps that will occur, and Bob Dallad [ph], some years ago, in an article, mentioned that that indeed had occurred in World War II. Some people in Maryland, I believe had gone into service in that respect.

But I have a question for Dr. Goldwin. Unless I misunderstand what you're saying, what inspires me is what Dr. Amar said, which is talking about the state constitutional amendments. I think it's 44 state constitutions have a right to arms provision. Only a very small number of them mention recreational or nondefensive uses as being one of the reasons for protecting the right, and any that do also mention defense as other reasons, and some mention collective defense and/or defense of a state and defense of the individual. But any that mentions defense of the individual also mentions defense of the state, collectively, and then the rest of them are very broad statements.

Some duplicate the Second Amendment, or the operative portion of it, just a simple declaration of arms, or a simple generic reference to defense.

Is it your position that these statements, which are largely defense-oriented and only occasionally single out personal defense as an additional reason for protecting the right to arms, that these are mere duplications, the state merely saying yeah, we do have a right to have our own militia?

It seems to me that given the existence of the Second Amendment, to start with, and these states adopt these other provisions, they must mean something.

So if your position is that the federal amendment is a declaration of a collective right, then what do these state amendments mean, or does this not tell us anything at all about what the Second Amendment means?

MR. FORTIER: Okay. Let's get to two other questions very quickly and then we'll answer them--you can start answering--well--

MR. : I'll be very brief.

MR. FORTIER: Very brief.

MR. : I can't answer without having the text before me and thinking more about it, but I see no reason why states can't provide, have in their constitutions provisions for a state militia, and I'd have to see the wording to be able to answer your question.

MR. FORTIER: We'll take the two questions right back to back, and then we're going to have to conclude.

QUESTION: Matt Nosenchuk [ph] from the Violence Policy Center. My question I guess primarily directed to Professor Levinson and Professor Amar is, you know, in light of your efforts to sort of fashion a communitarian notion of the Second Amendment, one which falls somewhere in the middle between the individual and collective right, and as authors of a constitutional casebook, I mean how does your view of the Second Amendment play out in contemporary constitutional litigation?

I mean, you have in the, you know, briefs filed by the Solicitor General, really no effort to articulate what standard of review would be appropriate in evaluating constitutional claims based on the Second Amendment, and the Emerson decision by the 5th Circuit is, in my view, completely incomprehensible as to what standard of review is being applied.

So I'm curious to know how you would address that in the context of your sort of notion of a communitarian right.

MR. FORTIER: We had one other question over here. I think it was back there.

QUESTION: Dennis Hennigan [ph] with the Brady Center to prevent gun violence. I want to address this to Professor Amar.

Given your view of the meaning of the Second Amendment, and the meaning of the privileges and immunities clause, are we to conclude that the Federal Government has greater power to regulate guns than the states? Setting aside individual state constitutional provisions, could the Federal Government ban handguns as not being inconsistent with the Second Amendment whereas the states could not do so because that would violate the privilege and immunities clause?

MR. AMAR: The answer--actually, my answer is the same for both. I would focus more on the Fourteenth Amendment in litigation than the underlying second, which has a more communitarian flavor.

The Fourteenth Amendment, as I understand it, is not limited to state action. We call that doctrinally, among other things, the reverse incorporation of the equal protection clause, a very clumsy, clunky formulation, and the Supreme Court today sometimes talks as if it's limited to state action, as they did in the violence against women case, United States v. Morrison.

The first sentence of the Fourteenth Amendment, a very important sentence, introduced to repudiate what Chief Justice Taney had said in the Dred Scott opinion, that blacks, even if free, could never be citizens, says that all persons born or naturalized in the United States are citizens thereof.

What it means--that has application against the Federal Government as well as against the states, which my great teacher, Charles Black, who comes to mind, not only because whenever I think of Lincoln I think of Charles, but also because one of Charles's great disciples is now in the room as well, Professor Bobbitt is now here.

Charles Black reminds us that citizenship might even have some horizo--what Europeans would call "horizontal effect" among fellow citizens, not just, it's not just individual, governmental, state, federal, but citizen, citizen. What it means to be.

What it means to be a citizen, among other things, is to have certain privileges and immunities, rights and freedoms. The second sentence had to spell that out in painstaking Simon says, "Mother, may I detail--no state shall abridge such things. Because Barron v. Baltimore required such explicitness. If anything, any obligation was to be fastened upon state governments. But to fasten such an obligation on the Federal Government did not require explicitness and so the first sentence doesn't say that.

But the citizenship clause itself means that the Federal Government is also bound to respect the rights, freedoms, privileges, and immunities of citizens of the United States.

MR. FORTIER: We could go on, I think, there are a lot of questions out there; but let's thank the panel for an excellent discussion today.