On November 3, the U.S. Supreme Court will hear oral arguments in New York State Rifle in Pistol Association Inc. v. Bruen. The case was brought by two men who were denied New York concealed carry permits, along with New York’s National Rifle Association affiliate, against the superintendent of the New York State Police, Kevin Bruen. The lawsuit challenges a provision of New York’s law regarding concealed carry permits—which allow owners to carry guns in public in a concealed manner—requiring anyone who does not automatically qualify for a permit (including some state judges, correctional facilities employees, and others) to show that they have “proper cause” for the permit in order to receive one.
On this week’s episode, host Jeffrey Rosen is joined by two legal scholars who filed briefs on opposing sides of the case—Judge J. Michael Luttig who filed in support of Bruen and David Kopel who filed in support of the New York State Rifle and Pistol Association. They detail the arguments they made in their briefs as well as what’s at stake in this case, and debate how to interpret the text, history, and meaning of the Second Amendment in light of whether the Court should uphold the New York law.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Michael Esposito, Chase Hanson, and Lana Ulrich.
PARTICIPANTS
David B. Kopel submitted a brief in support of the New York State Rifle and Pistol Association, arguing that New York’s denial of concealed carry permits should be struck down as unconstitutional. David is a Research Director at the Independence Institute, an Adjunct Scholar with the Cato Institute, and an adjunct Professor of Constitutional Law at University of Denver Sturm College of Law. He is also the author of the forthcoming casebook Firearms Law and the Second Amendment, and was part of the team that argued the key Second Amendment case District of Columbia v. Heller.
Judge J. Michael Luttig wrote a brief in support of Kevin Bruen, superintendent of the New York State Police, arguing that New York’s limits on concealed carry permits should be upheld. He is currently counselor and special advisor at the Coca Cola Company. His previous roles include judge on the United States Court of Appeals for the Fourth Circuit from 1991-2006, Assistant Attorney General for the Office of Legal Counsel, and Supreme Court clerk.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Judge J. Michael Luttig's brief
- David Kopel's brief
- The Statute of Northampton (1328)
- District of Columbia v. Heller (2008)
- McDonald v. Chicago (2010)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: Hello, friends. I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. On November 3rd, the Supreme Court will hear the Second Amendment case, New York State Rifle and Pistol Association versus Bruen. The question in the case is whether states can deny people the right to conceal carry a weapon outside the home. On today's episode, I'm thrilled to be joined by two of America's leading commentators on the Second Amendment, who have written important briefs on opposite sides of the case.
David B. Kopel submitted a brief in support of the New York State Rifle and Pistol Association. He is research director at the Independence Institute, an adjunct scholar with the Cato Institute and an adjunct professor of constitutional law at the University of Denver Sturm College of Law. He's the author of the forthcoming case book, Firearms Law and the Second Amendment, and was part of the team that argued the landmark Second Amendment case, District of Columbia versus Heller. David, it is wonderful to have you on the show.
[00:01:18] David B. Kopel: Thank you very much for having me. It's the, the whole program, the Constitution Center does is, is very good for for civic virtue and the continuation of our constitutional republic.
[00:01:29] Jeffrey Rosen: And Judge J. Michael Luttig wrote a brief in support of Kevin Bruen, Superintendent of the New York State Police. He is currently counselor and special advisor at the Coca Cola Company. He was previously judge on the United States Court of Appeal for the Fourth Circuit, Assistant Attorney General for the Office of Legal Counsel, a great friend of the Constitution Center who is celebrating his 40th wedding anniversary this week with his wife Elizabeth. Judge, it is wonderful to have you back on the show, and happy anniversary to you and Elizabeth.
[00:02:02] Judge J. Michael Luttig: Thank you, Jeff Rosen. I sincerely appreciate the well wishes. It's a pleasure to be with you and, and the National Constitution Center always. It's a special pleasure to be here today with Professor Kopel.
[00:02:14] Jeffrey Rosen: Well, let's begin with the New York State statute and the stakes in the case. David, the New York statute authorizes local official to issue unrestricted license to carry loaded handguns on a showing of proper cause. Seven other states have statutes like New York, requiring the showing of particular need to carry a handgun in public. Tell us about the New York law and those seven other states and what the stakes are in this case.
[00:02:40] David B. Kopel: Sure. So as you say, the norm in the United States, and in 42 states, and in the District of Columbia, yeah, and, and in some of our territories as, as well, is that if you want to carry a firearm for protection lawfully, in many states you don't need a permit and in many other states you do need a permit, and the statute specifies fair objective reasons for people to qualify for the permit. For example, you might have to go through a biometric fingerprint based background check and also pass a safety training class.
There are three states that nominally have on the books statutes for issuing the carry permits, but in practice, virtually nobody ever gets a permit. That's the situation in Hawaii, where only security guards on duty get permits. In Maryland and New Jersey, you basically have to prove an imminent specific death threat in order to get a permit, and in five other states including New York, some of the jurisdictions in those areas issue fairly to qualified proper trained background checked adults, but some of them are very arbitrary and say, "You can't exercise your right to, to bear arms unless we decide you have a good enough need such as specific criminal threats or maybe you're a diamond merchant carrying your wares." things like that. So that really negates the Second Amendment, because the Second Amendment right belongs to the people as a whole, and just as the government can't say, "Oh, you don't really need to keep a gun in your home for protection.", the government can't likewise say that only a tiny subset of the people can be able to bear a, an arm for lawful protection.
[00:04:30] Jeffrey Rosen: Judge, you have written that the eight states that require a showing of particular need to carry a handgun in public are not the only laws that would be rendered unconstitutional if the court rules against the New York law. You note that many other jurisdictions, in fact most of them restrict carrying handguns in many public places, including schools, parks and public transit, and these laws too could fall if gun advocates prevail in Bruen. Tell us more about those other laws that might be vulnerable and, and your view of the stakes in this case.
[00:05:01] David B. Kopel: Yes Jeff, that's correct. You know as Professor Kopel explained, there are seven to eight states that have proper cause requirements for a, a license to carry a firearm in public. There are a host of other states who have what are called multiple location restrictions on the public carry of, of firearms. So for instance in those states, variously they, they may prohibit public carry and on the public streets, in public buildings, in schools, in homes of worship, houses of worship, in businesses, theaters, concert halls sporting events and the like. But all told, today, across America, there are, there are many, many restrictions on the public carry of, of firearms. And depending upon the, the, the court's ruling and, and the scope of, of that ruling, most, most of those laws would, would would subsequently be held unconstitutional.
[00:06:08] Jeffrey Rosen: Well, this is a very meaningful conversation because it's a discussion about the text, history and tradition of the Second Amendment. When he was a judge on the U.S. Court of Appeals, Judge Kavanaugh was the first to say that the Second Amendment test for determining the constitutionality of gun bans and traditions was text, history and tradition. Justice Barrett seems to have embraced that view, and both of you have filed briefs coming to different conclusions about the text, history and tradition of the Second Amendment. David Kopel, tell us about your central argument and why you believe that the text, history and tradition of the Second Amendment supports striking down the New York law.
[00:06:47] David B. Kopel: Well, you, you start with the text. There are two rights recognized in the Second Amendment: The right to keep arms and the right to bear arms. The right belongs to the people. So you, it's really the, analytically very much the same as, as District of Columbia versus Heller, which struck out a ban on, the district's ban on handguns. Some people said, "Oh, this right of the people actually only applies to a subset of the people, namely those who are in the militia." And the court said, no, when the, the right of the people means all of the people. And likewise on the right to bear arms, the textual implication is if the, the people have right to bear arms, then most people have to be able to, if they choose, carry a, an arm for lawful protection. This doesn't exclude a licensing system. And every right necessarily has its exceptions, so when the Supreme Court said in, in Heller it explicated the Second Amendment and the right to, to keep and bear arms, it said this doesn't apply to felons and the mentally ill because the people as a whole have a right but there's an exception within that. And likewise on the right to bear arms, the court said it's okay to ban carrying guns in "sensitive places" such as schools and government buildings. And Judge Lut-, Luttig ad-, adverted to some of the laws that exist on that.
The, a victory for the plaintiffs in this case doesn't get rid of the sensitive places doctrine. Now maybe the court will provide some more clarification on what places are sensitive or not, but just like the ban for felons or the mentally ill is an exception to the general right to keep arms, the sensitive places rule is an exception that proves the rule to the general rule about the right to bear arms in places that aren't sensitive. And since Heller, lots of courts have had to deal with what's a sensitive place or not, and lower courts have been doing a fine job on handling it. And usually the courts that say, "Oh, this sensitive places declaration goes too far.", deal with things that I, I think by common sense people would say do go too far. The Illionis Supreme Court struck down some rule that you couldn't carry a gun within 1,000 feet around a park, and likewise the Illinois Supreme Court said, "Chicago can't ban all licensed carry within the city forests." On the other hand, laws against say carrying in, in post offices, have been upheld. Maybe the Court will give us some more detail on that, maybe not.
And as far as the history and tradition, with the exception of a statute in East New Jersey, which was a separate colony for a little while, in the 1600s that restricted concealed carry of handguns, the American tradition from 1606 up through 1900 was the court, the legislature could regulate the manner of carrying handguns. Most commonly especially by the end of the 19th century, courts said, "It's okay to ban concealed carry as long as open carry is lawful."
Now there are people who will say, and I guess Judge Luttig's brief is among this, that the Third Statute of Northampton from 1328 in England and different American laws in the 1800s prohibited gun carrying generally. But you can't find cases of actually anyone being prosecuted from 1606 up to 1900 for carrying a firearm peaceably. You can find prosecutions for carrying a gun concealed against the law, but not under any theory that carrying in general, was im-, was prohibited. And the only exceptions to that, there were two, two Black men in Boston and two Black men in the District of Columbia who were prosecuted for carrying guns peaceably. Only one of them had the the resources to appeal, and as soon as he did, the, the prosecutor dropped the case. Other than that, there is no judicial record of prosecution against people for peaceable carry in the United States from the earliest days up through 1900.
[00:11:13] Jeffrey Rosen: Judge Luttig, you are one of America's most distinguished originalists, and you have filed an important brief disagreeing with David Kopel's account of the history. You note that there are three varieties of founding error statutes that support the proposition of legislatures may impose limits on public carry, including blanket prohibitions on open or concealed carry in public, in New Jersey, New Hampshire, and North Carolina; regulations and restrictions on public carry in other places, including in Virginia, Massachusetts and Tennessee, and compulsory carry statutes. Tell us about those three categories, why you believe that text, history and tradition support striking down the New York law, and also what do you think of David's argument that regardless of what laws were on the books, no one he says between 1606 and 1900 was prosecuted under the theory that you could not carry guns peaceably.
[00:12:08] Judge J. Michael Luttig: Jeff, the Supreme Court, decision in, in District of Columbia against Heller over a decade ago was, was unquestionably a landmark decision from the Court. It was essentially the first time in, in 225 plus years that the Supreme Court had, had turned it, its full attention to the Second Amendment. And in that case you know as Professor Kopel pointed out, the Supreme Court held that, that there was a, in, in fact a Second Amendment right to keep and bear arms within the, the home and its cartilage. It did not address leaving for today the different question of the scope of the, the right to public carry.
The reason we are discussing in this case the history and tradition of the Second Amendment right, is that the Supreme Court instructed us to do so. The Supreme Court held, in, in the course of its its opinion in, in Heller that, that the Second Amendment right is an individual right, but it's not an unlimited absolute right, and instead it was a preexisting right that is, the scope of which is defined by the history and tradition of regulation and postscription throughout history. It's not disputed and indisputable that from time immemorial, from England to the colonial America to the founding of our country, you know through the 14th Amendment ratification and up to the, the current day, that the, the people through their elected representatives in the legislatures have regulated the public carry of firearms. It's uninterrupted history and tradition.
Now the petitioners, you know of course have to, to attempt to distinguish that three to four centuries of history and tradition, and they do so in various ways. For instance, in, in the way that Professor Kopel points out that, charging that, that, that respondents, you know, are unable to point to a single prosecution under this or that statute at the time. But that argument misses the mark. The, we look at history and tradition because of its democratic grounding, so we, we are looking at primarily, you know, the legislation and rules and regulations that were enacted by the democratic, you know, process, and on the face of the many statutes from before the founding through the founding into the current day, these statutes themselves on their face regulate and limit the public carry of firearms.
So in our brief, we're at pains to point out that it's irrelevant to history, and to, to the history and tradition, that a commentator or even a court narrows the construction of, of a particular statute. Why? Because it's the democratic decision embodied in the legislation itself that constitutes the history and tradition that, that we're in, in, in search of. Likewise, in, in, in the fact that there, that, that, that are not even, that there are no prosecutions under a particular statute, you know, 200, 300 years ago, is in our view utterly irrelevant.
In fact the petitioners only raise that argument to my knowledge in their reply brief, and and, and I regarded it as almost tantamount to a confession of error. I said to to my colleagues, "That's the last argument I would have ever wanted to have to make to the Supreme Court, that there is not a history and tradition of regulating public carry because there has never been a prosecution under the relevant statutes that anyone can, can, can discern." but, but in any event, the, the only point in our view is that there's three centuries of uninterrupted history and tradition of, of the regulation, if you will, of public carry of, of firearms. That history and tradition, according to Heller, the Heller court, is despositive of the, the issue that, that's going to be argued next week in the Supreme Court.
[00:17:15] Jeffrey Rosen: David Kopel, what's your response to Judge Luttig's argument, that there are three centuries of uninterrupted history and tradition of regulating public carry if we look at the laws on the books passed by democratic legislatures, and could you respond to the specific categories that he identifies, including those in three jurisdictions at the time of the founding that categorically restricted both concealed and open carry of guns in public places, see New Jersey law barring privately to wear any pocket pistol or New Hampshire law or any other who shall go armed offensively.
And then I'll just put his second category on the table, the founding era statute in three other jurisdictions that also restricted public places carry. See Virginia law, nor, nor go nor ride arm by night, in fairs or markets, or in other places in terror of the country or Massachusetts 1795, right or go arm defensively to the fear or terror of the good citizens of this commonwealth. You've been immersed in the Second Amendment debate, of course, for a long time. Are these, is this a significant argument about history and tradition as it appears to be? And aside from the fact that you say these laws were not enforced and didn't lead to prosecutions, what's your response to them as a window onto the original understanding of the founders and to the history and tradition enacted by Democratic legislatures?
[00:18:37] David B. Kopel: The reason these laws weren't enforced against peaceable carry is because they're by their own terms, they didn't apply to peaceable carry, just as you said in quoting some of those statutes from such as from Virginia, it was the statutes were against carrying arms offensively, or to the terror of the people. And in fact, the case law held that that has to be an essential element of the indictment. You can't just say he was carrying a gun. You have to show that he was doing it in a way to the terror of the people.
So the authoritative case construing these statutes comes from North Carolina and, and the common law that that backs them up comes from North, the North Carolina case State v. Huntley, where some guy was going up and down the highway, making death threats against people and carrying guns while he was doing so. The North Carolina Court said that's fine to prosecute that guy under the common law. You don't even need a statute to do it, because of how Huntley was acting. And the court went on to say, the carrying of gun itself constitutes no offense. Everybody's free to, to carry a gun for business or pleasure, peaceably, as long as they want to do so.
So it's in likewise, Massachusetts, and other states had a law that said, if somebody is behaving in a dangerous manner, they can be forced to post bond. So for example, under the statute, if we were neighbors, and you saw me walking around the street, again saying I was going to kill somebody, and waving guns around and things like that, you could bring a complaint in court, and on the evidence just described, that I was threatening to cause a breach of the peace, I would be forced to either stop carrying a gun, or post bond for good behavior.
That's what the statutes actually say. The idea that they were general prohibitions on carry is a grave misreading of the actual text of the statutes. The, the one supporting statute that that does exist is the thing I mentioned, back from old East Jersey colony that, that had ceased to exist by the early 1700s, when it got merged. And that statute apparently didn't stick around very long. Because in the 1710s, New Jersey has a statute about how slave owners can authorize their slaves to carry guns. And so, and lots of other states and colonies had statutes like that, too. And so we have statutes providing the conditions under which slaves can be allowed to carry guns, basically with a permission slip from their, their master. It kind of explodes the idea there was some general prohibition. And the Supreme Court essentially said the same thing. In the Dred Scott case, the court's, Justice Tony's opinion, said, "Well, if we recognize free Blacks as citizens of the United States, then they would have the right 'to keep and carry arms wherever they went.'" So plainly, the Supreme Court thought that keeping and carrying arms wherever you go, is a existing right as of 1857 of all American citizens.
[00:21:51] Jeffrey Rosen: Judge, what's your response to David Kopel's intervention that the laws in your second category that forbade people from bringing guns into public places for purposes of causing terror didn't bend the peaceable carrying of guns? Tell us more about your, your first category where you do identify laws that forbid carrying guns, both concealed and open carry in public places, categorically. And pull back, it's very important to, to talk about the details. But you were persuaded to file a brief in this case, because you found this historical evidence. Were you, were you surprised by it? Have other courts or commentators considered it before? And why do you think it's so significant that you felt moved to bring it to the attention of the U.S. Supreme Court?
[00:22:38] Judge J. Michael Luttig: Yes, Jeff, the, you know, the, the statutes that that Professor Kopel's referencing, as I indicated earlier, on their face, prohibited or restricted the public carry of, of firearms. There was no element of that offense of intent, or, you know, it was not a malum in se offense, and one did not have to prove as an element of the offense the offensive carry, or carry that would have put fear or terror in, in the ordinary citizens. The founders, as well as, as English law prior and in, in all of, of the legislatures since the founding, when they've enacted statutes of this kind, you know, have not made intent or offensive carry an element of the offense. For 300 years, the Democratic representatives of the people have assumed, if you will, that the mere public carry of firearms, dangerous firearms was sufficient, in and of itself to warrant limitation and prescription. Now, I don't want to get too deep into the into the, to, to the the weeds here, but, but I want to make some news [laughs] for the National Constitution Center here today, and I, and I'm sure that that Professor Kopel and others will, will want to check me on this as they should.
But in doing our research for this brief, we discovered something that has not at least been briefed in this case yet, but that's, that's immensely important, the very issue that we're talking about right now. And the point is this, the petitioners rely heavily on, on the English statute of Northampton. And that statute is interpreted by the King's bench in, in what's known as the Knights case, hundreds of years ago. In doing our, our research for our brief, we discovered that that actually, the King's bench in the Knights case misquoted the statute of Northampton, so to make it read that there wasn't effectively an intent requirement in the prescription of, of public carry in fairs and markets and, and other public locations.
There was not that limitation in the original statute. And the petitioners have, have you know, contended that many of the founding era statutes in particular, were modeled after the, the statute of Northampton. And they've contended, so also modeled on that statute's requirement for offensive carry, or or or an an an intent based carry. And apparently, that's not the case at all. And we're looking forward to that, that argument being laid out before the Supreme Court by the New York Solicitor General next week. But the main point that, that, that I want to leave your listeners with it is that no matter what gloss, interpretive gloss, one can put on these on these founding era statutes and, and, and other English laws, by the courts or anyone else, the, the point is that the democratically elected legislatures regulated the public carry of firearms, you know, widely and broadly, in, in a myriad of different ways. And that was without limitation as to intent or offensive carry.
[00:26:50] Jeffrey Rosen: Thank you for making some news on We the People. It's always great to have breaking news about misconceptions of the statute of Northampton and, and David Kopel, you haven't had a chance to consider that argument. If you have a response to that claim, that would be great. But more broadly, what is your response to the judge's broader claim that is in his first category, statutes in three jurisdictions categorically restricted both concealed and open carry guns in public places without any intent requirement whatsoever?
[00:27:22] David B. Kopel: I'd say just look at the statutes. Let's, let's look at the language, Massachusetts 1692, punching quote, "Such as shall ride or go armed offensively before any of Their Majesties, justices or their other officers or ministers, other off, their office or elsewhere by night or day in fear or afraid of Their Majesties liege people." New Hampshire 1699, "Justices of the peace should arrest, "affrayers, rioters disturbers or breakers of the peace or any other who shall go armed offensively."
The claims that there was a categorical ban on carry are absolutely unsupported by early American history, except for the, there were rules against slaves who didn't have their, their master's permission. There were laws say against Indians carrying guns in towns. People weren't part of the you know, American polity, but for regular law abiding, peaceable Americans, there were no bans in 1791, in 1789, or at any time before that on either open or concealed carry, with the exception of the East Jersey, short lived East Jersey laws we talked about in the late 1600s.
And you, you can argue that the King's bench got it wrong in 1686 in construing a statute from 1328. And, you know, maybe they did, but whether or not they did, the unanimous interpretation by the English courts after 1686 was that peaceable carry was lawful. Every single case in England after that, from there up through the early 1900s until the, the English Parliament changed the law was that peaceable carry was lawful. In fact, the leading, a leading annotated addition of Blackstone by Edward Christian from 1794 said that everyone is at liberty to carry arms, except not for hunting because in England, commoners couldn't go hunting.
So all the English interpretation by the courts after 1686 is that everybody can carry. They had exceptions, because they just had Bill of Rights, adopted in 1689, didn't apply to Catholics, and so Catholics could only carry if they swore an oath of allegiance to the king. You know, what we really have going on here is trying to go back to the tyrannical days of the 1300s and 1400s and saying those laws were what got adopted in the Second Amendment. To the contrary, the English Bill of Rights of 1689, which affirmed the right jobs for self defense for, for Protestants in England, rejected that tyrannical tradition. And likewise, we know from James Madison's notes introducing the Bill of Rights, including the Second Amendment in the Congress that he thought the English Bill of Rights including its right to arms, was too narrow and defective. So you can't say just because Edward III did something in 1328, that Americans forever after are subject to those same kind of abusive limitations, because even the English didn't think that from 1686 onward.
[00:30:44] Jeffrey Rosen: Thank you so much for that. Your brief does indeed note Madison's rejection of the English Bill of Rights, which We the People listeners can find on the interactive constitution, which says strikingly that subjects which are Protestants shall have the right to keep and bear arms. Judge Luttig, it is important to get into the details and I want We the People listeners to read your brief and that of David Kopel. But, but reading from your first category, you do argue that statutes in three jurisdictions categorically restricted both concealed and open carry of guns in public places, without any intent requirement of any kind. And you quote New Jersey law barring privately to wear any pocket pistol, New Hampshire or any other who shall go armed offensively. North Carolina, no person may go nor ride armed by day or night. Those are the three in your first category. Help us explain the significance of, of this as part of your conclusion that there is an unbroken tradition of regulation of the kind you described and connected to the broader purposes that you believe that the founders were trying to achieve when they passed the Second Amendment.
[00:31:50] Judge J. Michael Luttig: As a general matter, Jeff, all the statutes that we're, we're now discussing, were constructed, essentially as follows. The citizens were prohibited from going armed, to, to the fear of the general population. As a textual matter, and this is the detail that, that we're, we're getting to now, as a textual matter, that kind of statute, of which there were many during the founding period and before, that statute so constructed would be interpreted as the legislature, having assumed that the carry would be in to, to the fear of the general population. And therefore, the statute would not be interpreted to require, as a separate element, an intent to carry publicly, so as to terrorize or instill fear in the general population. That's the way the statutes were, were written. And that's the way for the most part, the way they were interpreted in the few instances where they were interpreted. But largely, we're left with and we're supposed to be left with the statutes themselves on their face.
[00:33:26] Jeffrey Rosen: David Kopel, this is an argument in the weeds in history in a productive way. But I wonder how having been part of the Second Amendment debate for a long time, how significant you feel this debate is, about whether we should take the laws the judge notes on their face or, or take their enforcement. Justice Kavanaugh and Justice Barrett and other judges who look to history and tradition do generally look to laws on the books in deciding what the tradition is. And the judges' significant intervention is that states have had laws like this on the books for a very long time. And he also has a third category of cases, and it says that the fact that there were requirements of public mustering and that people were compelled to carry guns in some public places is affirmative evidence that the carrying of guns in public places wasn't an individual right, but was left for debate and decision in the legislative arena. I guess I'll ask you in this final round of responding to the judge's brief, how significant you think the originalist justices will find this evidence given where we are in the, in the debate about the original understanding of the Second Amendment?
[00:34:29] David B. Kopel: Why, I guess I'd say originalist judges typically look both at the, the text of statutes and at their judicial interpretation and application. And in this case, it's all on one side, that carrying the statutes themselves refer to carrying offensively to the terror of the people. I think it's completely implausible. Statutes list, statutes list the elements of an offense. They don't go around and give commentary on the effects of the crime. A law against bank robbery, doesn't say, comma, and thereby hurt and harming the economy, which, which is an effect of bank robbery. They don't talk about the effects of the crime. They talk about what are the elements of the crime by Edward Koch's, Koch's interpretation influential treatise, and by every other treatise, the American Justice of the Peace treatises, everything else, everyone interpreted these statutes to require the element of both being offensive, or doing so in a manner that terrifies the people.
The North Carolina sup- supposed statute that was cited never existed. It is a miscitation to a book in 1792, written by Francis Xavier Martin, which purported to list English statutes that were in effect in, in North Carolina. The North Carolina legislature actually officially in, I believe 1838 condemned the book for having included statutes that were never enforced in, in North Carolina. And to my chagrin, I forgot the second part of your question.
[00:36:02] Jeffrey Rosen: I was asking how you think that conservative justices or justices who care about text history and tradition like Justices Kavanaugh and Barrett, as well as Justice Gorsuch and, and Justice Thomas and the others will view the historical evidence that Judge Luttig has presented.
[00:36:19] David B. Kopel: Because politely as a fabulous construction built on no foundation, with the exception of East Jersey, for a, a period of maybe 20 years, prohibiting concealed carry of handguns, while allowing open carry of handguns. There aren't any restrictions on general peaceable carry. There may be restrictions against carrying the gun, you know, in, in a certain location. Oh, and the point is, the second point was the requirement in almost all the colonies except for Pennsylvania, that in certain situations, people must carry guns, such as when going to church, to court, to public assemblies, when working on the fields, when going on a trip. And there are many, many such statutes. And Judge Luttig's brief says, "Oh, well that proves the government was in charge of carrying arms. And so therefore, the government can ban the carrying of arms."
Well, that's the same kind of argument that was rejected in Heller about keeping arms. The militia laws of the colonies in the States required people to keep arms. And in fact, it wasn't just the militia. Many colonies have laws that said any householder, including an adult woman who was the head of her house, had to possess certain arms. So there were lots of mandates that people had to keep arms. That doesn't prove that the government could ban the keeping of arms. And likewise, there were many, many, many mandates that people bear arms in certain situations. That doesn't prove that the government ever had the power to ban the bearing of arms by peaceable citizens.
[00:37:58] Jeffrey Rosen: Judge, you view the compulsory carry laws as evidence that the framers wanted to leave it up to democratic legislators to decide exactly what the contours of the right to bear arms should be. And in the final part of your brief, you argue that restricting loaded guns in public places is a vital, historically rooted legislative option for minimizing gun violence on America streets and public and for judges to usurp it would be counter to the framers' intent, but the question of exactly how to strike the balance between public safety and the individual right, be struck by democratic legislatures, not unelected judges.
[00:38:37] Judge J. Michael Luttig: That, that's right, Jeff, you know, to, to the your first then narrow, narrower point, you know, we just simply make the frankly the obvious argument, that if there is indeed a, a constitutional right to carry firearms publicly, whenever and wherever the need for self defense might arise, then the government could not compel you to carry them, your weapons in any particular place. You know, government compulsion is fundamentally inconsistent with a constitutional right, in, in the Second Amendment, just as it is with respect to the First Amendment, and all other amendments and constitutional provisions.
But yes, so on your larger point, we are convinced that, that there's a unbroken history and tradition of regulation of the public carry of firearms. And we are, and we are convinced also, that, that, that the court will unquestionably hold that there is such a history and tradition. It is already gratuitously said in Heller that the court doesn't doubt the constitutionality of laws prohibiting the public carry of firearms, and in certain public places, like schools and government office buildings and things of the like.
Well, that was, frankly, without any consideration of the need for the carry of, of firearms in those loc- locations. It's possible, you know, Justice Scalia course, wrote Heller, and, and I had the honor of, of clerking with him many, many years ago, but it could well have been that, that he could not have gotten his five votes in that closely divided court without some acknowledgement that, that the Second Amendment right that they were recognizing in Heller had limitations, not just within the home and the curtilage. But more importantly, looking, looking forward to today's case, had very important limitations for the public carry of, of firearms, as well.
Now then, the third point that you, you raised, which we, we make in the brief, is, is likewise obvious, namely that, that once the court holds that there is a right to keep and bear arms publicly, of whatever scope at all, then then that that opens up a Pandora's box for the court. What we don't say in the brief, but but which, which we believe is that for the conservative justices, they will not want to open that Pandora's box at, at all. And if they have to, they will open it only slightly for this reason. If they recognize, you know, an absolute right to carry firearms publicly, they will then, in effect, have to establish the court as a National Review Board for public carry regulations, which will, will sit to decide challenges to the public carry in the infinite number of public places and locations across the nation.
And, and for every public location, or for a large number of categories of public locations, the court itself would have to balance the, the twin concerns of the Second Amendment of, of the right to self defense with the equally important right of public safety, that the twin concerns that underlie the, the Second Amendment. In effect, Jeff, that would be to do with respect to the Second Amendment. What the conservative judges and, and justices have criticized the court for doing in other areas of the law, such as abortion, that is that they would be setting themselves up to constitutionalize, you know, the infinite number of locations, public locations where one may or may not carry their firearms.
I don't think the court wants to do that. And, and I, I don't think the conservative justices want to do that either. But that's a necessary result of, of their holding that there is a constitutional right, that cannot be abridged by state regulation. And obviously, the other justices would, would not want to do that either. So this is a very difficult case for the Supreme Court. We've discussed a lot among ourselves why the court took this case and whether it understood the history and tradition of public regulation that it's going to be confronted with now. I for one, you know, have suggested that I doubt the Supreme Court, this current court was, was familiar with the history and tradition that they're gonna have to face into.
[00:44:03] Jeffrey Rosen: David Kopel, a, a strong statement from Judge Luttig. He said that if the court recognizes a right to keep and bear arms publicly without restrictions, that would be a Pandora's box that would establish the court as a National Review Board for regulations in an infinite number of public locations. He compared it to Roe v. Wade, in which by applying a kind of strict scrutiny for rights of reproductive choice, according to critics put the court in the business of, of serving as a National Review Board for abortion regulations. Your response?
[00:44:35] David B. Kopel: I, I think the concerns are, are overstated. When you take something that is textually in the Constitution, not abortion, which, which isn't textually there at least, and people can have opinions about whether it should be implied. But when something is textually in the Constitution, the courts are supposed to enforce it. In fact, just like an opinion Judge Luttig joined in, in 1997, Runnebaum v. Nations Bank of Maryland, saying that carrying a firearm is a constitutionally protected activity, and individuals have the constitutional right to do it.
And there, the court discussed the right to bear arms to carry out, carrying a firearm in the same paragraph as the right peaceably to assemble. So once the Supreme Court finally got around to seriously enforcing the First Amendment right to peaceable assembly, you know, of course, they had to decide follow on cases of what are the boundaries of that, you know, you could have a big loud rally in a public park, but you can't have a big loud rally in a public library.
Lower courts have done fine on deciding these these issues already, following what Heller said, which is there is a right to carry firearms for defense. That's already in Heller. But that right doesn't apply in sensitive places such as schools and government buildings. Courts and all in the, the 42 states that currently fully recognize and respect the right, the Second Amendment right to bear arms have dealt with these sensitive places cases and they've, they've done fine, and it hasn't opened up some kind of jurisprudential deluge.
There, there are probably under two dozen cases, since Heller, where state courts and lower federal courts have, have dealt with the sensitive places issue. You can make pro con arguments about any particular one. But that's well within the ability of the courts to handle. We have same, the same point with when the Court affirmed the right to keep arms in the Heller case, while you, there are going to be exceptions to that. The court named, there's two specific exceptions of felons and the mentally ill, who even though they may actually have a, a real need for a gun for self defense, are within the Second Amendment not allowed to do so. And lower courts have then had to do other cases on, well, what about other categories of, of prohibited persons, persons with misdemeanor domestic violence can convictions, persons under domestic violence restraining orders, and the courts have managed to handle those things as well. So there's no Pandora's box out there, except there may be a few dozen more cases looking at the boundaries of this issue, but that that's well within what courts have always been doing in resolving cases on the, the gray zones of constitutional rights.
[00:47:23] Jeffrey Rosen: Judge, David Kopel says that unlike the right to choose abortion, the right to keep and bear arms is textually enumerated and therefore, restrictions on it should be skeptically scrutinized. And he also says that in Heller, the Court recognized the two exceptions, the right to bear doesn't apply in sensitive places and the right to keep arms doesn't apply to felons and the mentally ill. The courts have done fine in enforcing those restrictions and recognizing a right to peaceable public carry might open up a few dozen cases, but that's well within judicial competence. Your response?
[00:47:56] Judge J. Michael Luttig: Jeff, I think Professor Kopel's point that the right to, to keep and bear arms is textual is too simplistic when the question is, is there a, a right to carry arms publicly? I don't know, I mean I haven't thought a great deal about it. But I would not regard that right as textual in the Second Amendment, as distinguished from the right to keep and bear arms, which we know at this point applies, at least to the home and the curtilage.
But to say that or to hold that as a Supreme Court did in Heller, not to say that there is a textual right in the Second Amendment to bear arms in public. Now, I believe that the Court will hold that there is a right to bear arms in public. But we already know that the Court's going to recognize that right as limited, limitable and limited by the people in their legislatures. So the question the case is the scope of that right to carry publicly, and what will the court eventually decide is the scope of that, that right.
Now, that's where we make the argument that this is much different than the home and the curtilage, the possible restrictions, that just the possible restrictions on the right to bear arms in your home, keep and bear arms in your home, the possible limitations are relatively few in number, in contrast to the possible limitations, on the right to, to keep and bear arms publicly. That's where we make the point that I think is un, unassailable, that the Court would eventually have to decide the myriad of public locations, the myriad of public locations, where one would have the constitutional right to carry arms in public. And each time the Court made that decision with respect to a particular location.
And by the way, the public locations vary state to state. The Court itself would be thrust into the enterprise of balancing the Second Amendment right to carry against the need for public safety, precisely the kind of, of, of balancing and determinations that, that the court is, is typically as a court, any court but certainly the Supreme Court is loathe to, to engage in. Our argument is if they start down that road in the Bruen case, it's an endless road. And we don't believe the Supreme Court would want to do that. But it, it would have no choice for it to hold that there is a, you know, the, the kind of sweeping right to carry arms in public that the petitioners argue for.
[00:51:24] Jeffrey Rosen: Well, it's time for closing arguments in this extremely illuminating and meaningful debate about the text, history and tradition of the Second Amendment. David Kopel, first thoughts are to you. Please sum up for our avid We the People listeners, why you believe that the text, history and tradition underlying the Second Amendment support a right to bear arms in public that is broad enough to require the court to strike down the New York law.
[00:51:55] David B. Kopel: The text of the Second Amendment refers to the right to keep arms and the right to bear arms. And that was written in a particular way. And I think it's implausible to say that someone would write bear arms in the sense of meaning, oh, oh you have a right to carry your gun from upstairs in your house to downstairs, and no place else. That would be you could write a constitution like that, and in fact, Mexico did, where their constitutional right to arms article 10 says the inhabitants of the United Mexican States have a right to arms in their homes.
They chose to be different from the Second Amendment. The right to bear arms, because it's outside the home, can be subjected to stricter rules than the First Amendment, than the right to keep arms just like in the Fourth Amendment, which protects houses, persons, papers and effects, houses tend to get more protection than papers, typically, but they're all protected by the constitution. So it's perfectly fine. I think the court is going to say, to have a fair licensing law for carrying in public. Go through a background check, it could be biometric, fingerprint based. You might have to take a certain amount of safety training to pass the class and there and then there will be rules about where what are, as Heller said, sensitive places where guns can, carrying of guns can be banned, and that that's not a, a impossible task for courts to handle.
And it's really not an issue of courts balancing public safety. You know, back in the, the Heller case, Justice Breyer had this long pro con dissent about the social science pro and con, about whether guns are good for defense or bad for defense. They raise the crime rate, they lower the crime rate and all that. And the Court majority wasn't interested in becoming the court of general social science, because the Court said that balancing has already been done by the people when they enacted the Bill of Rights.
They put the right to bear arms and the right to keep arms in the U.S. Constitution, balancing done. And as a practical matter, despite all the terrible sky is falling scenarios, that some opponents of the right to bear arms race, we actually have a lot of practical real life experience from the 42 states, which currently do recognize the right to bear arms. And we know that when people get a permit to carry a firearm for, for lawful protection, that permit can be revoked by the law enforcement officer in the jurisdiction for misconduct, such as being arrested and so forth. And the data show and this is in the brief from the Crime Prevention Research Center, the data show that the revocation rates, for misconduct, for licensed carriers are minuscule.
They're not zero, but they're quite low. And some people would say that based on the arrest rates of right, of licensed carriers versus police officers off duty, that actually police officers have a higher arrest rate. Others people would say, "No, you can't, you can't make that exact comparison." But what, what is clear is that both law enforcement officers, and law abiding, licensed, trained citizens have a very, very, very small rate of firearms misuse.
And so it's working fine in Chicago. The District of Columbia has a law like this. All over the country, we've got 42 states, lots of big cities, lots of very dense areas. And all these scenarios that it's going to be the end of the world haven't come to pass in those states. So I don't think there's any reason to worry that the people of New Jersey are going to somehow be so much more recklessly dangerous than the people have all their sister states, such as Pennsylvania, where they can all readily obtain a permit to carry firearms for lawful protection.
[00:56:06] Jeffrey Rosen: Judge Luttig, the last word in this superb discussion is to you. Please tell We the People listeners why you believe that the text, history and tradition underlying the Second Amendment do not support a sweeping right to bear arms in public that requires the court to strike down the New York law.
[00:56:25] Judge J. Michael Luttig: Jeff, I'll, I'll, I'll double back around and answer the question you asked earlier about my interest in this case, the Second Amendment, you know, is, is not an issue that I have followed, or that I'm especially interested in, in myself. I was asked to join and write this brief by a number of my colleagues, Conservative colleagues who have served in prior Republican administrations. But when I got into it, and I did all the reading and, and research myself for purposes of, of working on the brief, I was surprised about the history and tradition that, that we we discovered and that others have, have discovered and briefed.
I concluded, you know, before I began working on the brief or even agreed to, to join the brief, I believe that that history and tradition was compelling. And then it's especially compelling to conservative jurists, and conservatives generally. Because history and tradition, of course, is, is, is one of the interpretive tools that is most favored by so called conservatives, right? You can't get any more conservative than that. The history and tradition. And and as I said, I was, I was actually surprised at the centuries of regulation of, of the, the public carry. I had not known what that history and tradition was before I, I started work working on this case, but I thought it was compelling.
So once I concluded that, I thought the case was fascinating, because presumably, it's the conservative justices on the court who would favor as a matter of, of public policy of broad, right to carry guns in public. Presumably, we don't know that.
On the other hand, they are also the justices who are most likely to believe in the history and tradition as, as the interpretive tool. And therefore, the ones who are most likely to find compelling the history and tradition of public carry that we've all detailed for the Court now.
So that's why I got involved in the case. I, for my purposes, I'm relatively indifferent to the public policy question of, of public carry. As you know, I've spent most of my life concerned with the law and the Constitution only. But in this instance, I found that the issue presented by the law and the Constitution was fascinating when juxtaposed with this conservative Supreme Court. So to, to answer briefly then your specific question, I think that the respondents and, and certainly those of us who are on the brief that I joined, would be, you know, pleased if the Supreme Court were to pit the, the textual arguments that, that, that Professor Kopel and others are making against the history and tradition of regulation of the public carry of, of firearms in order to reach its conclusion.
We believe that if the Court were to do that, that for the reasons I've explained that the, the text of the Second Amendment simply doesn't answer the question before the Court today, and to the extent that the Court and began to answer the question in Heller, it unmistakably said that public carry is limitable through the history and tradition, and so we would be comfortable. We don't believe the text answers the question, this question today. And we know from the Supreme Court itself, that history and tradition does answer that question. So we're quite pleased where the case stands now, on, on the eve of its argument.
[01:00:32] Jeffrey Rosen: Judge Luttig, you used the adjective fascinating, and I will use it as well in thanking both of you, David Kopel and Judge Michael Luttig for a fascinating discussion of the text, history and tradition underlying the Second Amendment. Thank you also for engaging each other's arguments so thoughtfully, and for providing We the People listeners a memorable example of civil constitutional dialogue at the highest level. David Kopel, Judge Michael Luttig, thank you so much for joining.
[01:01:00] David B. Kopel: Thank you.
[01:01:00] Judge J. Michael Luttig: Thank you.
[01:01:02] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Michael Esposito, Chase Hanson, Sam Desai and Lana Ulrich. Homework of the week, dear We the People friends, please read Judge Luttig and David Kopel's briefs in the New York case. And if you're more persuaded by one than the other, write in and tell me why and which constitutional arguments persuaded you. And while you're at it, please rate, review and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues or anyone anywhere who is eager for weekly civil, deep and illuminating dose of constitutional debate.
And always remember, friends of the National Constitution Center is a private nonprofit. We rely on the generosity, the passion, the engagement and the devotion to lifelong learning from people like you, across the country, and around the world who are inspired by our nonpartisan mission of constitutional education and debate. Support the mission by becoming a member at any level, $1, $5, $10. Just go online and sign up and get our great newsletters which collect all of our amazing content every week, not just these wonderful podcasts, but also our town hall videos, our Constitution 101 classes and more. You can do that at constitutioncenter.org/membership, or give a donation of any amount to support our work at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
