Podcast: Is the Second Amendment a Second Class Right?

Jeffrey Rosen: [00:00:00] 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 today's episode we consider the state of the Second Amendment. The Supreme Court has not decided a major 2nd Amendment case since McDonald and Chicago in 2010. But this relative silence on the Second Amendment could end this term if the Court decides in the coming weeks to hear a case called Mance v. Whitaker, the challenge to a law prohibiting dealers from selling handguns across state lines. Justice Anthony Kennedy has been replaced by Justice Brett Kavanaugh and we have a dream team for you dear We the People listeners to unpack the state of the Second Amendment and where the court has been and where it may be going. Clark Neily is vice president for criminal justice at the Cato Institute and served as co-counsel in the landmark 2008 Second Amendment case DC vs. Heller. Clark is Adjunct professor at the University of Texas School of Law and was previously senior attorney at The Institute for Justice. Clark thank you so much for joining.

Clark Neily: [00:01:20] My pleasure. Thanks so much for having me.

Rosen: [00:01:22] And Adam Winkler is Professor of law at UCLA law school specializing in American constitutional law. He is the author of Gunfight the battle over the right to bear arms in America. He's the co-author of the Constitution Center Second Amendment explainers on the interactive Constitution and the author of a new award winning book, we the corporations. Adam it is great to have you back.

Adam Winkler: [00:01:47] It's a pleasure to be back Jeffrey.

Rosen: [00:01:49] Clark, let us start with the state of Second Amendment law. Since McDonald was decided the Supreme Court has refused to hear a series of cases that have divided the lower courts, often over the dissent of Justice Clarence Thomas whose complained that the court has relegated the Second Amendment to a second-class right. These cases include the freedmen and Highland Park case from 2015 where the court refused to hear a challenge to Chicago laws that ban semi-automatic assault weapons, Peruta versus California in 2017 with the court refusing to hear an appeal from the ninth circuit about whether you can carry a handgun outside the home for self-defense and then there's the Sylvester and Bacarra case from 2018 where the court refused to hear decision of the ninth circuit that called California's 10-day waiting period for gun purchases a reasonable safety precaution. Tell us about these cases that the court has refused to hear and what the state of Second Amendment law is?

Neily: [00:02:52] Well it's important to keep in mind the relevant context here, which is that up until 2008 the Supreme Court never really weighed in on the meaning of the Second Amendment and this is not as unusual as people might think. I mean the Supreme Court wasn't even in the business of interpreting the First Amendment until well into the 20th century. And so it's, as you know very well, the Supreme Court doesn't suddenly answer all of the questions that might apply to a particular constitutional right. It tends to move very slowly, very incrementally. So when the Supreme Court finally weighed in on the meaning of the Second Amendment in 2008, and then again in 2010, of course, it left open a tremendous number of questions about the scope and the meaning of the Second Amendment and those questions are being worked out in the lower courts now. What is  somewhat surprising and somewhat unusual is the Supreme Court's unwillingness to Grant review in cases where the lower courts have disagreed about the meaning and the applicability of the Second Amendment with respect to some particular issue. And so you've got a split among the lower courts on important questions of gun regulation that affect many many people and normally we would expect the court to weigh in on at least some of those questions. But as you say for nearly 10 years now the Supreme Court has remained silent and stayed out of the Second Amendment other than the McDonald and the Heller cases. So it remains to be seen whether they'll get back into the business of interpreting the Second Amendment and if so in what case.

Rosen: [00:04:27] Many thanks for that. Adam, describe the cases in which the lower courts are split on Second Amendment questions and introduce our listeners to the jurisprudential arguments on both sides of whether or not the second amendment allows the regulations in question.

Winkler: [00:04:42] Well, I actually might disagree with the premise a little bit. I think actually one of the stories of second amendment jurisprudence in the lower courts, since McDonald has been a surprising amount of uniformity, especially at the circuit court level while there's been some Lower Court District Court judges that seem to have gone one way, we're finding a real consensus at the circuit court level about the Second Amendment. And what the courts are generally saying, they're upholding the vast majority of gun control laws from things like bans on high-capacity magazines and bans on military-style assault rifles, restrictions on concealed carry and most importantly the circuit courts have tended to agree about the standard of review to apply to the Second Amendment cases. One thing the Supreme Court did not do in Heller or McDonald was make clear what standard of review the court should apply going forward. And while I think Clark is right that we shouldn't expect the Supreme Court to handle a lot of Second Amendment cases in the early years, we should expect the court to articulate a clear standard of review to provide the guidance for the lower courts, but in the absence of that Guidance, the lower courts have nonetheless at the circuit level really come together around basically an intermediate scrutiny standard that if a law is very burdensome on gun rights than sometimes the courts will apply a higher standard but in general courts say that gun control laws are justifiable if there is an important governmental interest that is substantially or reasonably furthered by the underlying law, and so we don't have a lot of splits in the circuits. So we have one area where there is some difference with regards to concealed carry, but the split emerged since the last concealed carry case was petitioned to the Supreme Court.

Rosen: [00:06:33] Many thanks for that. Clark your response to Adam's suggestion that broadly the appellate courts are agreed on questions ranging from assault weapons bans to other restrictions and that they have been applying intermediate scrutiny and justice Thomas has argued that that's the wrong standard as Justice then judge Kavanaugh did as well and that the big question is whether the Supreme Court will adopt another standard and question some of these laws.

Neily: [00:07:01] Yes, I mean I think Adam is right that there is, on the surface there certainly would appear to be, some consensus among the lower courts about outcomes where I might disagree is is whether there's a consensus on the proper standard of review and the proper analytical framework. It is certainly the case that most of the circuit courts purport to be applying an intermediate level of scrutiny to these cases but a very powerful argument can be made and I think has been made by a number of scholars that it really isn't intermediate scrutiny that these courts are applying; it's really the rational basis test sort of dressed up and, you know, given the name of intermediate scrutiny, but with none of the substance. I myself, I'm sympathetic to that view and I think if you look at the analysis in these cases particularly, for example, the seventh circuit decision upholding the assault weapons ban in Highland Park. If you look at that case the court acknowledges that this the government failed to present any evidence that the so-called assault weapon ban would actually promote Public Safety or produce any other public benefit. In true intermediate  scrutiny case that would be the end of it and the government would lose but instead what the seventh circuit said was, well this law might make some people feel safer even if it doesn't actually make them safer and so that's sufficient. That is not a true application of intermediate scrutiny; that's rational basis all the way and the Supreme Court explicitly took rational basis review off table in the Heller case. So my sense is that if the Supreme Court accepts a Second Amendment case and orders the lower courts to apply a genuine intermediate standard of review as opposed to this this sort of substantial rational basis test that we will very likely see this apparent consensus and outcomes among lower courts begin to disintegrate.

Rosen: [00:08:53] Dear We the People listeners just to review our constitutional law, rational basis review means that courts generally uphold the law in question as long as it's rationally related to a legitimate governmental interest. Strict scrutiny, which you get under the first amendment requires that the law be necessary to achieve a compelling governmental interest and intermediate scrutiny, like Goldilocks means that the law is reasonably related to a substantial governmental interest that the gist is if it's rational basis review, the government usually wins and intermediate review you balance the interest and strict scrutiny the government loses. So Adam tell us about which standard of review you think the Supreme Court might adopt and tell us about the debate among the justices. Justice Kavanaugh as a lower court judge questioned intermediate scrutiny and prefered to have a more history based approach. The liberal justices may be more sympathetic to it. But give us a sense of how the justices might divide on this important question of the level of scrutiny.

Winkler: [00:09:52] Well, it's a great question and it -really one possibility is that the court even with a majority of justices in support of more vigorous Second Amendment protections might not agree on the standard of review. It does seem like several of the justices are unhappy with the intermediate scrutiny that's being applied by the lower courts. Justice Thomas has dissented from denials of cert and second amendment cases and said that the courts are treating the Second Amendment as a second-class right because they are not applying a heightened standard of review. And as you mentioned judge Kavanaugh-Justice Cavanaugh when he was a judge on the DC circuit, ruled in a case called Heller II, a major Second Amendment case. He was actually in the dissent in that case and authored his own view of what standard of review should apply under the Second Amendment and he rejected the traditional tiers of scrutiny that courts have approached Second Amendment issues with so far and said that true allegiance to Justice scalia's opinion in the Heller case requires a historical analysis where we look to see whether history and traditions supports a particular gun regulation. It'll be interesting to see when it gets to the Supreme Court how that plays out. I think it's highly unlikely that a majority of justices, especially Chief Justice Roberts will take that history-based view which would really significantly curtail the ability of lawmakers to enact gun laws to address new problems, new issues that have previously arisen or hadn't previously been seen.

Rosen: [00:11:33] Many thanks for that. Clark, you are arguably the Thurgood Marshall of the Second Amendment. You've brought many of the cases that have led to Heller and McDonald. Which standard of review do you think the Supreme Court should adopt and the Second Amendment compels? Intermediate scrutiny or strict scrutiny or history based approach, and why and how would such a standard apply in the cases that the court might consider?

Neily: [00:11:57] Well, of course the easy answer, the most straightforward answer is that if the Second Amendment right to own a gun is considered to be a so-called fundamental right, then it would presumptively receive strict scrutiny, the highest level of scrutiny that the court applies to constitutional rights including free speech and religion and so forth. There has been some suggestion that at least some of the justices do in fact view the Second Amendment as a fundamental right and so that might point in the direction of strict scrutiny, but one always has to keep in mind sort of the pragmatic instincts that many Supreme Court justices have and I think for that reason that it is extraordinarily unlikely that the Supreme Court will in fact apply strict scrutiny to the Second Amendment regardless of whether that's the more powerful or persuasive doctrinal argument. And the reason I think they probably won't apply strict scrutiny to the Second Amendment is purely consequentialist. I think I'm very skeptical whether there are five justices on the Supreme Court that want to put the court in the position of having to apply a very searching level of scrutiny to gun regulations because that will certainly result in a very significant number of them being struck down. Why? Because it turns out to be almost impossible and I shouldn't even say almost, it turns out to be practically impossible to produce any evidence that any gun regulation has produced any positive public policy outcome. People hope, we can think, we can guess but in terms of actually presenting evidence that any given gun regulation or restriction actually advances some genuine government interest, there's just no evidence that can be presented and that would mean that virtually all gun regulations would fall under strict scrutiny or I should say would fail under strict scrutiny. And for that reason alone, I think the Supreme Court will not apply it.

Rosen: [00:13:42] Many thanks for that. Adam, in your individual explainer for the Second Amendment you argue that the founding era laws indicate why the first amendment is not a good analogy to the Second Amendment. Therefore strict scrutiny should not apply and you say the principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. What do you mean by reasonable regulations? Do you support a sort of rational basis review? And what do you think that the text and history of the Second Amendment compel when it comes to the standard of review?

Winkler: [00:14:14] Well, it's really interesting. If someone like justice Kavanaugh is really serious about taking a history and tradition approach to thinking about gun regulation, it would suggest that the standard of review the court should apply would be a reasonable regulation standard, something broadly deferential and I say that because remember, the right to bear arms is not just a function of the Second Amendment. State constitutions have protected the individual right to bear arms unquestionably an individual right, unlike the Second Amendment where there's been so much debate over the years but the state constitutional provisions have been the basis of hundreds of cases challenging gun control laws, and there's a very well-developed jurisprudence of the right to bear arms in American constitutional law even outside of the Second Amendment and the standard that the courts have applied for well over a hundred years has been essentially a reasonable regulation standard that's broadly deferential. It's not the same thing as rational basis review. Rational basis review could perhaps justify eliminating all firearms if it was, you know, rationally related to a legitimate government purpose and the reasonable regulation test instead says that you can regulate arms, but you can't ban them or prohibit them from- prohibit people from accessing them. I don't think that's the standard that the courts are going to apply. That was argued in the Heller case in at least some of the amicus briefs. I argued one in an amicus brief and I think that's partly why the court has rejected rational basis review, so I don't think the court's going in that direction, but I do think it's really interesting that we talk so much about these standards of review, but they may not matter that much. So we've seen in some states in recent years, partly as a result of arguments about the reasonable regulation standard in state constitutional law, a couple of states have upped the standard of review under their state constitutional provisions for the right to bear arms, places like Missouri and Louisiana have adopted strict scrutiny standards for right to bear arms challenges, but what do we find in those? It's that even though gun laws are being challenged in those States the courts are still upholding the gun laws. I think that that Clark is absolutely right that judges when dealing with this issue tend to defer largely because the issues are tied up very intimately with Public Safety and where is Clark says there's no evidence to support the idea that any gun regulations work, I think that actually there's a lot of disagreement on that and it's the kind of thing that's probably best left to the legislature to figure out the details without too much judicial interference.

Rosen: [00:16:45] Clark what standard of review do you think the justices should apply setting aside the pragmatics of what they will adopt and among the Lower Court decisions that are arguing that the second amendment has become a second-class Right, which do you find most persuasive?

Neily: [00:17:05] Well, I think that whatever standard they stay settle upon it should be something that resembles true intermediate scrutiny, by that I mean a couple of things. First off the burden should be on the government to demonstrate that the challenged regulation in fact advances some genuine governmental interest. To go back to the so-called assault weapons ban in Highland Park, Illinois, as I noted before the court acknowledged in that case that there wasn't any evidence that had been produced by the government that the so-called assault weapons ban actually enhanced Public Safety in any way. In any intermediate scrutiny case, whether it's a free speech or any other kind of case that would be the end of it. If the government can't produce any evidence to demonstrate that the regulation actually benefits the public then the law must be struck down. I think the Supreme Court should apply some version of intermediate scrutiny that requires the government to carry that burden of producing credible evidence that the law will genuinely advance and generally does advance some important government interest and that there is not some reasonably less restrictive approach that would have produced a similarly efficacious result. That's the typical requirement in or- that's the standard requirement in true intermediate scrutiny cases and what you'll see is that has been missing in these purportedly intermediate scrutiny cases in which the courts have upheld so many different gun regulations and that's what tells us that it's not true intermediate scrutiny. The government's not carrying any evidentiary burden and it's not being required to show that there are not reasonably less restrictive Alternatives that it could have turned to and that means that the courts have not really been applying true intermediate scrutiny and they should.

Rosen: [00:18:48] Adam what do you make of Clark's proposed intermediate scrutiny with bite if that's what you want to call it or at least with some bite and might the court adopt it and if it does what kind of laws might be struck down?

Winkler: [00:19:00] Well, I guess you know that sort of Clark's view kind of corresponds with this view that the Second Amendment is being treated like a second-class right in some of these lower cases, but I actually think that what Clark's proposing is to make the 2nd Amendment a special right, one that's unusual because he proposes an intermediate scrutiny standard that is actually not the strict scrutiny standard that's applied in the First Amendment or in any other area of review. There is only a requirement that the government provides some evidence. Not that it provide a clear causal relationship that it can make an unquestionable claim that is irrefutable that the law would further the governmental interest. That's not the standard under intermediate scrutiny. There was just the third circuit case that upheld a ban on high-capacity magazines and one of the judges dissented from that opinion and he argued again the second amendment was being treated like a second-class right because of the scrutiny standard that the majority applied while it looked at evidence, it looked at testimony, it made reasonable inferences from the evidence that was in the record. The dissent said no. No, we have- we want empirical studies, you need to show us with empirical evidence, empirical studies showing that this large capacity magazine ban will work and achieve the goals that you have for it. What that means is really so the state has to figure out a way to somehow ban high-capacity magazines, in some places, allow them in other places, do a peer reviewed and statistical study to try to come up with statistically significant results and only then can it adopt a law? I question whether there's any Court that's ever required lawmakers to do something like that in any area of law. So the second amendment is not being treated like a second-class right. What the problem is is that people are unhappy that it's not being treated like a special right.

Rosen: [00:20:49] Thanks for that. So Clark your response to Adam's suggestion that your test would make the second amendment a special right and more specifically where in the text and history and original understanding of the Second Amendment do you root your proposed intermediate scrutiny test?

Neily: [00:21:07] Right. Well two things: first I have to say with respect that I think Adam is making a bit of a caricature of intermediate scrutiny. I have litigated intermediate scrutiny cases of various kinds including First Amendment cases, and that's simply not the way they work. The government doesn't have to come forward with a truly irrefutable evidence, it doesn't have to have an entire, you know cartload of empirical studies but it does have to produce significant credible evidence that the regulation in question, whether it's a gun regulation or a speech regulation will in fact address some genuine problem in some genuinely efficacious way and that's not a huge burden. I certainly agree with that but it's all the more telling that the government has not been able to do that, hasn't been able to meet even that very modest burden in the vast majority of these cases. So I think that you know, that's- the first point is that intermediate scrutiny certainly doesn't require, you know, this irrefutable level of proof. It just requires reasonable proof, which they generally have not been able to muster. So I don't think that it's calling for the Second Amendment to be treated as a special right; it's calling for the Second Amendment to be treated pretty much the way we treat other enumerated constitutional rights in the Constitution. So is there something in history of the First Amendment, the second amendment that tells us, you know to treat it, to subject it to a certain level of judicial scrutiny? No, but there's nothing in the history of the First Amendment, the Fourth Amendment or any other enumerated right in the Bill of Rights that tells us what level of scrutiny to apply because that's all done, you know at the level of Doctrine and pragmatism by the courts where they try to fine-tune the right amount of protection for a given right so I would say yes, let's treat the second amendment like we do other constitutional rights and not in a way that's special but not in a way that significantly different.

Rosen: [00:22:53] Adam your response to Clark's point and in particular how should a Justice who embraces the jurisprudence of original understanding like Justice Clarence Thomas her or Justice neil Gorsuch treat the Second Amendment? Can heightened scrutiny be rooted in text or history, or is it a purely pragmatic judgment as Clark suggests?

Winkler: [00:23:14] Well, it's clear that there is no history and tradition of Courts applying heightened scrutiny to gun laws in America. Like we know that- I mean there's occasionally cases that strike down a law here or a law there, a couple in the mid-1800s in particular but overwhelmingly history and tradition suggests that the Court should apply a deferential standard to gun laws. That's a long as the lawmakers don't completely ban firearms or effectively nullify the right to bear arms, regulations should survive. That's what history and tradition says and a true originalist that looks as Scalia often did to the tradition of a right after it was adopted would probably take that history and tradition pretty seriously. Call me skeptical, I don't think Justice Thomas will approach the issue in quite that way. So I think if you look at history and tradition the answer is pretty clear in that direction. I also think that you know, we have this perhaps exaggerated view of how the lower courts are approaching Second Amendment cases. We start with a baseline. First of all, we should recognize that American gun laws are the most permissive in the world among Western industrialized countries. So our gun laws are actually not that burdensome and even places like California and New York where we have adopted some more burdensome gun laws, New York more burdensome than others, in California any law-abiding person can still go out buy a handgun, buy as many handguns as they want for self-defense in the home. They can also buy various kinds of rifles and other things. There are some limitations on what they can do but no one is really denied the right to defend themselves with a firearm in their home. And as a result America's gun laws are pretty mild and they don't offend the underlying right to bear arms. So it's surprising that courts uphold the few kinds of restrictions that we do adopt and even then, you know in the DC circuit, there's been 22 Second Amendment challenges, 14 of them have been successful. So that's a success rate of 64%. You know, that's got that's a very very high level of success and the idea that the courts are just ignoring the Second Amendment or making it a second class right probably just doesn't really fit the data out there.

Rosen: [00:25:36] Clark can we just take one final beat on the history? I always urge our we the people listeners to go to the interactive Constitution and it's striking that when you look at the historic analogs of the Second Amendment only two of the revolutionary era state constitutions, Pennsylvania and Vermont, viewed the Second Amendment as an individual right of the people to bear arms for the defense of themselves or for purposes of killing game; the other eleven used the militia language. But at the time of reconstruction as many scholars including Akhil Amar have noted, the second amendment was viewed as more of an individual or natural right that African-Americans could use to defend themselves against violence. So if you were trying to argue that to Justice Thomas and give him an originalist case for why the second amendment should not be a second-class right, what would you say?

Neily: [00:26:22] Well, I would make clear that the the people who wrote those Provisions had a belief in natural rights as I think Justice Thomas does as well and so they would argue that the Second Amendment and the state constitutional analogs do not create the right to own a gun. They simply acknowledge it and regardless of what the language of those Provisions is, regardless of when those Provisions were added to the relevant Constitution, that changes nothing. Everybody has a pre-existing right to defend themselves and to defend themselves effectively, whether it's against private violence or violence from the government. This was a Bedrock conviction that the founders of our country had and that the people who participated in the debate and the ratification of the Fourteenth Amendment after the Civil War had, and so what I would say is that we shouldn't get too hung up on the wording of the Constitutional provisions that protect the right to own guns, but rather we should focus on what right those provisions represent and it is the pre existing natural right to armed self-defense and I think Justice Thomas would be extremely receptive to that argument.

Rosen: [00:27:29] Thank you very much for putting that argument on the table. Um Adam in a recent piece in the National Review John Yoo and James Phillips made a similar argument to the one Clark has just made. The piece is called the second class Amendment: the Supreme Court should put gun rights on the same level as other constitutional requirements, and Yoo and Phillips say that the individual right to bear arms is recognized but pre-exists the second amendment's text and the Framers assumed that the federal government could protect natural rights over the passing legislative fancy, and they say Central among these natural rights as explained by John Locke and his successors at the time would be the right to self-defense, which a right to bear arms only implements like a tool. What is- what do you make of this natural rights argument? And do you think Justice Thomas and other justices might be sympathetic to it?

Winkler: [00:28:18] I don think that many justices will be sympathetic to that natural rights view and I think many historians who look at this issue also find some sympathy that there that the framers of the Constitution did believe in natural rights. The question is whether something like natural rights really helps us answer the kinds of questions that we need to ask. Now in the second amendment, the natural right story tells us whether there's a second amendment, whether the right to bear arms is one of those rights, that's an individual right that's protected by the Second Amendment, but it doesn't tell us anything about whether you have a natural right to have a large capacity magazine or a military style rifle and the natural right approach doesn't tell us whether gun violence restraining orders, a new innovation that presumably would fail the historical scrutiny of Justice Kavanaugh, there's no natural right to not have your gun taken away from you if you're a danger to yourself or to others. So I just think that when we think about things like a natural right, that's an interesting historical story. It doesn't actually move the ball forward in terms of judicial review today.

Rosen: [00:29:28] Thanks for that. Clark in his confirmation hearings Justice Thomas repudiated earlier writings where he had expressed sympathy for natural rights jurisprudence and said that he would only decide cases based on text and original understanding and not underlying principles of natural rights, you know, maybe one final beat on whether an originalist judge could openly embrace the natural rights argument and then let's get back to brass tax and talk about what kinds of regulations might be vulnerable under this natural rights or individual scrutiny with bite approach that you are proposing.

Neily: [00:30:04] Sure and let me be clear. I do not think that any Supreme Court Justice would purport to strike down a gun regulation on sort of pure natural rights. They don't do that in other settings and I wouldn't expect them to do it here. And of course it's unnecessary because we have an enumerated right in the text of the Constitution that directly speaks to the issue in question, namely whether there's a constitutional right to keep and bear arms. So I think it's somewhat beside the point about what Justice Thomas might do in some other setting. Clearly there is a textual basis for this, for judicial protection of this right. I should add however that the Supreme Court routinely defends unenumerated rights. In other words it routinely protects rights that are not listed in the text of the Constitution and there's a- I think a sound theoretical and philosophical basis for doing that. So but we can, you know, we can move past that and essentially say one way or the other it is- it's not a stretch for justices who are inclined to do so to provide robust protection for the right to keep and bear arms. Now as to what gun regulations might fall under an appropriate appropriately protective judicial review, I'm not really sure. I guess what I'd say is this: probably not very many, because I definitely agree with Adam that on balance gun ownership in America is relatively, compared to other countries, there are some significant limitations in some jurisdictions and I do want to add maybe your focus on one particular area of gun policy that I really do think is ultimately indefensible, and that's the approach that states like California and New York take to the question of who may carry a gun outside the house, in other words who can have a permit to carry a gun. Most states, the vast majority of states answered that question the way we would with any other constitutional right and that is that if you meet a set of objective criteria, so you don't have a criminal record, you don't have a mental health problem, then you are presumptively entitled to a permit to carry a gun. That's how most states do it. But in States like Massachusetts, New York, California the decision whether to allow you to exercise that aspect of the Second Amendment to carry a gun outside the home is left entirely to the individual discretion of law enforcement officers and it is absolutely disgraceful, if you look at who has been granted that right. It's basically famous and well-connected people. So in New York, Donald Trump had a concealed carry permit, Martha Stewart's daughter has a concealed carry permit, a bunch of musicians like one half of the band Journey has Concealed Carry Permits. You look at California, Sylvester Stalone has one, Dianne Feinstein had one for a while. So these permits to carry weapons in places like New York and California are handed out to wealthy and well-connected people and I would submit that with any other constitutional right, if we saw people's ability to exercise it so directly tied to their status and stature in society people would be up in arms about it. But because it's the second amendment somehow people are not upset about it, but they should be and I think the court will be as well when that issue finally gets there.

Rosen: [00:33:01] Adam, Clark has put on the table the issue raised in Peruta versus California. That was a 20-17 case where the court refused to hear an appeal from the ninth circuit, which refused to consider whether there's a Second Amendment right to carry a handgun outside the home for self-defense. The California law basically banned carrying guns openly in public, allow concealed carry only if the applicants can demonstrate good cause and Justice Thomas joined by Justice Gorsuch dissented from the court's refusal to hear the case, noting that some lower courts, including some 19th century State Court decisions from Georgia struck down bans on open carry, but upheld bands on concealed carry. So tell us about this debate and whether you think that the California law was rightly upheld or not, and how the Kavanaugh Court might deal with the question?

Winkler: [00:33:51] Well, I think that Clark is absolutely right that these permissive concealed carry policies that we have in places like California are perhaps most likely to be overturned by the Supreme Court of the gun laws that we have because the court does apparently think the right to bear arms does extend out into the street, presumably even if it extends out into the street and extends probably in a more limited way than you would have it in the home. Many of our rights we enjoy with greater scope in the context of the home rather than in public because of the public dangers of exercising something like gun rights out on the streets, but I do think that these discretionary policies are likely to run afoul of a majority of the Roberts Court in due time. So far, the court has avoided taking one of these cases on the discretionary permitting policies of places like California, but there was no split in the circuits. The lower courts had, at least at the circuit level, had upheld these discretionary permitting policies consistently subsequent to the Supreme Court's decision not to hear the Peruta case raising this issue out of the ninth circuit. We did have a ruling out of the DC circuit that struck down the permissive carry policies- sorry the discretionary carry policy in Washington DC. And so we now have a split in the circuits about this issue. And so I do think that the next opportunity the court gets, it will feel compelled to take a concealed carry case and I think discretionary carry I think is problematic if the court sees the right as extending outside of the home and I think the court will.

Rosen: [00:35:39] Thanks for flagging that important issue. Another opportunity for the court to weigh in is mance and Whitaker where the fifth circuit upheld a federal law predating the Heller case which prohibits licensed dealers from selling handguns across state lines. The court will soon decide whether to hear that case in some hope that that will provide a meaningful framework for elevating second amendment rights. Clark tell us about the Mance and Whitaker case. Do you think the court will take it and how might the court decide it?

Neily: [00:36:11] Well, you know nobody ever got rich betting on the Supreme Court to grant cert in any given case unless it was a case in which the federal government lost and then it's a virtual lock. So I think it's- I think it's you know, just like any other case, it's still more likely than not that they'll give it a pass but a couple aspects of this case I would say make it at least a potential candidate and so for a little bit more context: this case involves a federal requirement that is somewhat unusual in the sense that it singles out a particular kind of weapon, namely a handgun and treats it significantly differently than other types of firearms and while you can buy a shotgun or a rifle across state lines, with a handgun, you're not permitted to do that. If you wanted to purchase a handgun from another state you would have to have the seller in that state send a handgun to a federally licensed Firearms dealer in your state of residence who would then fill out some transfer paperwork and you have to pay a fee for that. So it really is a pretty big imposition particularly for people who maybe aren't as well off. It's going to be it as a significant amount of cost to acquiring a firearm. So a perhaps counterintuitive reason why the court might be willing to take this case is that I think it has relatively limited impact. A case involving for example concealed carry, a ruling in one of those cases would have a very significant impact and affect laws in a number of states. With the selling of pistols across state lines at issue in this case, it's a relatively insubstantial issue I mean in the sense that if you really want a pistol from another state you can get one and so that might be appealing to the court because the court often likes to move in very small baby steps when it's sort of, you know, identifying new applications for a sort of relatively young constitutional right as we might think of the Second Amendment at least doctrinally, so I think it's probably somewhat more likely that the court would take cert in this case simply because there's some ways less at stake and the implications of a ruling in favor of the Second Amendment are much less than in some of the other cases that have been presented to the court. So that would be one reason to perhaps suspect that the court might be more open to taking this case as compared to some of the other ones where it is taking a pass already.

Rosen: [00:38:21] Adam, your thought on the Mance case, how might the court decide it and how should it decided?

Winkler: [00:38:26] I don't know how the court is going to rule on this. You know, I think we have a new core, you know, then we had before. I think the court was, even the old court with Justice Kennedy on it, was uncertain how it was going to rule on some of these Second Amendment issues, which is probably why they were never enough votes for cert to take a gun case after the McDonald case at least a significant Second Amendment case after the McDonald case. So now we have justices Gorsuch and Kavanaugh on the Supreme Court. We don't know exactly how they're going to approach these problems. So it's somewhat difficult to predict but I will say that I think this case sort of highlights why so many Second Amendment challenges have failed because of the wide availability of firearms in our country, including the ability to get a handgun and most forms of rifles and shotguns in any state and keep them in your home, with some exceptions; in New York City, where you have to get a permit, a premises permit, to carry- have that gun in your home. It's just very easy to get a gun and to believe that this law that is restricting the ability to sell guns across state lines in just the way you want to do it without the addition of a federally licensed dealer, I just think it's going to be seen by many justices as just not very burdensome, that people's basic rights are not being denied. We shouldn't approach the Second Amendment issues with this attitude, well, any law that touches upon guns should be immediately suspect which is that kind of strict scrutiny approach that you would take in this area because very few of these laws are really burdensome and many of these laws exist to try to shore up our ability to enforce basic gun regulations to crack down on the black market on guns. We shouldn't make it- the NRA has already made it hard enough for the Bureau of Alcohol Tobacco and Firearms to enforce our current gun laws. We don't need the courts to step in and make it that much harder.

Rosen: [00:40:32] Clark tell us about other laws that might fall or that you think should fall under the intermediate scrutiny approach that you suggest. As we talked about, cases where the court has refused to weigh in including assault weapons bans, might the court view these cases differently under Justice Kavanaugh? And which laws in particular do you think might be vulnerable and should be vulnerable?

Neily: [00:40:59] Right. Well, I think probably the law that that is most vulnerable and in part because there are increasing numbers of them being added to the books in different states are restrictions on what are called large capacity magazines. So this is essentially the magazine that goes into a firearm like a pistol contains X number of rounds. Law enforcement tends to- members of law enforcement like police tend to prefer high-capacity  magazines that have 13, 14 even 15 rounds of ammunition because of course then they don't have to reload as often. But what is happening is that a number of states have passed laws including here in Washington DC that restrict the size of the magazine, the capacity of the magazine that you can possess and I think that those laws would be interesting to see whether those laws- so far they've been upheld by and large by the lower courts, although I think at least one court has struck down a large capacity magazine law. So the reason I think those may be vulnerable or- there are a number of reasons why I think they're vulnerable- is that the evidence in support of the large capacity magazine ban is not terribly persuasive. I think the third circuit really cherry-picked the evidence that was presented to it when it upheld the one in New Jersey and also because there's an interesting- I don't want to call it exactly an equal protection angle but it's food for thought and that is this- in virtually every jurisdiction that limits the size of magazines there is an exception for police officers and even retired police officers and I think that's quite telling because what it suggests to us that is that people who know how many rounds of ammunition you need when your life is on the line understand very well that you if you ever going to be in a lethal situation, a fight, something like that, you want as many rounds of ammunition in your weapon as it can hold and so when you have these laws that make an exception for people who know the best just how many rounds of ammunition you need when your life is in danger, that is, I think it's something that may catch the Court's attention. And again because of the ubiquity of these laws, they do have a significant effect on a significant number of people or I should add they're supposed to have a significant effect on a significant number of people, but if you actually look at the data, virtually everybody in the states that are covered by these laws simply ignores them. Even the Department of Justice and the state officials like New Jersey recognize that compliance rates with these high capacity magazine laws hover somewhere between 1 and 3%. So in effect, these laws are on the books, but virtually nobody seeks to comply with them whether that- which way that cuts in terms of the Supreme Court accepting the case or the issue for review, I can't tell you. But there are a growing number of restrictions on large capacity magazines that continue be to be ignored by virtually everybody who is covered by them.

Rosen: [00:43:44] Thanks for that. Adam, what do you make of the laws that Clark has just mentioned and do you agree with him that they're constitutionally vulnerable or not?

Winkler: [00:43:54] Well these restrictions on large capacity magazines, I think Clark is a hundred percent right that we haven't seen compliance with these laws that when we've adopted these laws California bands the possession of these high capacity magazines. There's just no evidence of any real compliance with these laws. I think that raises a whole bunch of problems, which is that the- look, not only will the law be ignored by most but what we're going to see is that when the law is enforced it tends to be enforced for someone who's caught up in criminal activity for other reasons and it may well be that we're going to see the vast majority of convictions for unlawful possession of a high-capacity magazine being imposed on racial minorities and the poor, who are often tied up and get caught up in in government investigations and criminal law enforcement. So think that is highly problematic. I actually don't think that the ban itself- it could be if it were enforced and people did comply with it, wouldn't be all that problematic. Again having less than 10 rounds of ammunition to defend yourself is more than enough based on the data. Again, if we want to look at data and empirical data, what we know is that something like 98% of self-defense shootings require less than two rounds be fired as a result. And in fact most require no rounds to be fired. So there's really no empirical evidence that suggests you really need a high capacity magazine and I think that there's so much skepticism about gun laws out there that it's even hard to imagine many gun laws satisfying any of the gun critics. When it comes to the empirical question, so take the third circuit opinion that Clark mentioned. The third circuit said, hey, look if you have to reload, if you have to take out your magazine and put a new magazine in or put bullets into your magazine because you can only carry 10, that's gonna give people in a mass shooting environment a moment, a break to try to do something and they said hey look if we look at mass shootings, that happened in the Gabrielle Giffords shooting - the high-capacity magazine jammed or something and the guy had to replace his magazine and that's when he was tackled by the by people. If you see the video of the Las Vegas shooting when the guy had a high-capacity magazine, you can see that with the moment, he shot, he shot, he shot, he shot and then the moment there was a break in the high-capacity magazine where he had to reload everyone gets up and starts to flee. That's your moment to get away from one of these situations. Now you can you know reject that evidence, but it's not that there's a lack of evidence so that people aren't making a reasonable inference that this law could help in these situations. It's just people honestly don't believe that there should be these restrictions on guns because it's part of your right and as the NRA often says, you know, these things are just the cost of freedom and I just think many people in America are pushing back against that.

Rosen: [00:46:42] Clark your response to the question of whether, if these gun laws were subject to more meaningful scrutiny, they could survive it or not. And basically Adam is suggesting you need something closer to strict scrutiny to a presumption of invalidity to strike down a bunch of laws that are pretty popular among lots of Americans.

Neily: [00:47:05] Yes, I think there's a question about whether we're talking about sort of how the Constitution should be read or is being read by the courts or will be read by the courts. And I think it's- at the end of the day where Adam and I might actually agree is that I think up until this point in our history, judicial protection of gun rights has been virtually insignificant and I think going forward it will be virtually insignificant as well. I just don't think there's much appetite on the part of the courts to go to bat for gun rights for a variety of reasons. Some of which I would probably say are relatively more legitimate than others, but I think another thing- another area where Adam and I agree is it probably won't make all that much different at different except at the margins because why well, because through the Democratic process people in most jurisdictions have chosen a policy of relative permissiveness, whereas we have emphasized throughout this discussion, it's relatively easy and even in a place like New York or California to obtain a firearm if you want as you long as you don't have a criminal background and I think that will continue and the other thing we should add of course is that, as I mentioned last time, most of us if we want to can choose to ignore whatever gun laws we don't agree with in relative safety. Where I think the problem really emerges and Adam touched on this, is in disparate prosecutions. Probably most people are familiar with the fact that prosecutions of drug crimes are wildly disparate in terms of race. Well guess what, prosecutions for gun crimes are even more disparate along racial lines. 47.3% of federal gun convictions were against black people. Blacks were arrested for gun crimes at five times the rate of white people according to Bureau of Justice statistics. So that's a- kind of a so far untold part of the gun regulation story, which is that the more gun regulations you have on the books, the more black and brown people are going to be in prison for violating those laws, whereas white people by and large can continue to ignore those laws in safety as they have always done, and I think that raises really profound concerns about fairness and about our true commitment to enforcing or not enforcing these laws and I hope the courts take a look at that when the time is right.

Rosen: [00:49:17] Thanks for that. Adam, are you concerned about this point that Clark identifies which is disparate enforcement, discriminatory enforcement of the gun laws?

Winkler: [00:49:25] I am concerned about it. I think it's an issue that we have to we've been dealing with as Clark says with regards to our drug laws and it's really a part of our gun laws as well. And it is something that we should be looking at and be concerned about. We want to pass laws that don't have a disparate impact on the basis of race and so I do think that's a concern. I will say I'm not convinced that the courts will make that a concern. The courts have not shown much interest in saying laws that have a disparate impact on the basis of race, if they can't- if you can't show that there is a discriminatory animus or purpose behind the underlying law and I don't think anyone seriously suggests that for instance a ban on large capacity magazines, which might lead to disparate enforcement results, is intended or enacted out of discriminatory animus towards a racial minorities. It's really about mass shooters who tend to be white by the way, so there's hard to prove the kind of discriminatory intent that the courts would acknowledge but I do think it is an issue for lawmakers. And that's one that they should be concerned with. I'm a little less sanguine about the possibility of the Court staying out of the second amendment in the long term. I think that the court is likely to eventually overturn the permissive or sorry discretionary permitting policies for concealed carry in a place like Los Angeles and that might make a big difference. In Los Angeles today there are less than 500 people who are ordinary civilians who are licensed to carry a gun. If we have shall issue permitting as most states have and the same rough percentage of the population possesses firearms on the streets, we go from 500 to about three to five hundred thousand in Los Angeles County just based on population numbers. And so I think that would probably make some some difference in a city like Los Angeles. And so I do think that the courts have- there's the possibility of the courts are going to get more involved in the Second Amendment. I think it's likely at this point whether the long-term consequences- what the exactly long-term consequences will be remain to be seen I guess.

Rosen: [00:51:40] Clark final point, what do you make of Adam's point that in fact the courts may indeed get more involved in the second amendment in particular? What impact do you think Justice Kavanaugh's replacement of Justice Kennedy will have on the Supreme Court's approach to these questions and what's your response to the fact that striking down the California laws might in fact be a big deal?

Neily: [00:52:03] Yeah, so I think that- I really stick to my point that I think it's unlikely that the court will involve itself in the second amendment in a significant way. Like for example the way it does with First Amendment Free Speech or free exercise of religion issues. I'm not saying I think that the Supreme Court will stay out of it altogether. I think the court will be much more reticent to involve itself in Second Amendment issues than it is with other constitutional issues and I think by and large that should be fine because with the exception of a maybe a handful of recalcitrant jurisdictions gun ownership regulations are fairly permissive in most jurisdictions and not generally problematic. I guess the- my response to Adam would be that, let me rest your mind or put your mind at ease about the likely effect of a shall issue ruling that covers the entire country. There are a tremendous number of people carrying guns at any given time whether or not they are licensed. In fact, if you look at statistics, the Department of Justice has acknowledged that even though there are only 50 thousand lawfully registered guns in New York City there are something like 2 million guns in private ownership. So we are surrounded by guns in this country at any given time whether the people carrying them are carrying them lawfully or otherwise. That has- all throughout our history that has been the case and I think that will be the case throughout the foreseeable future. The only real question is whether those people are in legal jeopardy because the government has not permitted them to carry guns, but a large number of people carry guns at any given time, they will continue to do so, the only question will be what percentage of those people are doing so lawfully and what percentage of those people are at legal risk when they do?

Rosen: [00:53:37] Great. Adam final point before closing arguments, your response to the idea that it wouldn't be that big a deal to strike down the California law then would it be a big deal if the court were to strike down some of the other restrictions that we've discussed including the federal law prohibiting selling handguns across state lines?

Winkler: [00:53:56] Well, you know, it's hard to know exactly. I think that it depends on how broadly the court rules. I mean, I think people in California do feel like it would make a big difference to have hundreds of thousands of people lawfully carrying guns on the streets. That may be wrong obviously. There's a very vigorous social scientific debate about whether these permissive concealed carry rules lead to increases in crime or decreases in crime and highlighting perhaps why we don't want courts to require in you know, these kinds of empirical studies and statistical significance when the truth is on something like this, it's been studied for 20 years 25 years. We still don't have firm conclusive answers, but maybe that's the story to take away from it, which is that no matter which gun laws we have, no matter what gun laws the courts tend to strike down, it won't make a huge difference in America because we already have so many guns. There's probably about 400 million guns in circulation in America. And you can adopt a law banning high-capacity magazines, but people don't comply with it. You could strike down a ban on high-capacity magazines and it's not going to probably lead to a ton more people getting them in a place like California. So I think as a general matter, I think I'm probably with Clark that at the end of the day, you're not going to have a huge impact from the majority of gun laws. That might be called into question and I would look for for those who are Supreme Court watchers to look for the high profile issues like a discretionary permitting for concealed carry or a large capacity magazine or perhaps military-style so-called assault rifle ban going up before The Supreme Court, but also keep your eye on the smaller cases the things like the mance case dealing with the interstate shipment of firearms because the court may choose one of those kinds of laws as a vehicle to step in and really strengthen judicial review in Second Amendment cases.

Rosen: [00:55:52] Thanks for that. Well, it is time for closing arguments in this superb discussion, which has led to a surprising area of agreement that even if the court does get more involved in policing the Second Amendment, it may not make a huge practical difference but Clark the first closing argument is to you: is the Second Amendment now being treated as a second class right? Should it be treated as more of a First-Class right and how much of a difference would that make?

Neily: [00:56:23] I think the Second Amendment very clearly is being treated as a second class right. The lower courts that purport to be applying an intermediate standard of scrutiny I think are not being entirely credible on that point. I think they are essentially rubber-stamping these regulations and not applying the kind of scrutiny that we would expect to see with true intermediate scrutiny. For example in a speech case, I don't necessarily think that's a huge problem. I think the disingenuousness is a problem. But as a practical matter, I don't think that the Second Amendment is among the the most important constitutional rights for the courts to be vigilant in their protection of. I think the first amendment is more important. I think the Fourth Amendment may be important and certainly the criminal procedural requirements of the fifth and sixth amendments. So I'm not one to rank constitutional rights, but if something's going to keep me up at night because of insufficient judicial protection, it's the protections that we need against mass incarceration and overcriminalization and attempts at censorship. I think that is where I want to see the courts most active in protecting our rights and if that- if for whatever reason they're less protective than I think they should be of the Second Amendment right to keep and bear arms, I may not be happy with it, but I can live with it because I think there are other rights where I think judicial protection is more significant and more urgent many.

Rosen: [00:57:42] Thanks for that. Adam last word to you and it's the same question: is the court now treating the Second Amendment as a second-class right? Should it be treated as a first class right and how big of a difference would that make?

Winkler: [00:57:55] Great. Well, thanks so much for having me on Jeffrey always love to do this podcast and especially an honor to do it with Clark Neily whose work on the Second Amendment really was foundational and certainly inspired me to dig into it and become a second amendment scholar myself. So hats off to you Clark. I appreciate you doing this. With regards to a second class right, no I don't think the second amendment's being treated like a second-class right. Sometimes we might think so because courts have upheld the vast majority of gun control laws. And we think in the First Amendment oh, the court striking down laws left and right but, you know gets back to something that Clark said earlier. Clark said look, if you believe it's a fundamental right, strict scrutiny should apply and I guess I just disagree with that statement. I don't think it's an accurate description of American constitutional law. Of course, the Fourth Amendment is a fundamental right but the courts don't apply strict scrutiny and the courts have been clear that on the Fourth Amendment the court does- the police don't have to apply the least restrictive Alternatives. We've seen- there's no strict scrutiny under most of the provisions of the Fifth Amendment. There's no strict scrutiny under the Sixth Amendment the Seventh Amendment or the Eighth Amendment. Strict scrutiny is a very exceptional rule that's applied in just a handful of fundamental rights cases, not in fundamental rights cases more generally. So I think the idea that the court should apply strict scrutiny or something near strict scrutiny, otherwise the right's being treated like a second-class right is- just comes off- the perspective is based on a baseline of the First Amendment, not a baseline of constitutional rights more generally and I think when understood in those terms you can see the Second Amendment is actually being treated like many rights, which is that the courts tend to give government-wide leeway when it comes to issues like Public Safety and especially in light of the fact that there are 400 million guns in America and no one is really prohibited from getting a gun and having it in their home to defend themselves. I think those things add up to the idea that second amendment is not a second class right. It's just a right that tends to be protected more by the political process than by the judicial process and I'd say that if you're a second amendment fan, that's probably where you want it to be. Democracy is going to be a lot more powerful in the long run than the courts.

Rosen: [01:00:06] Thank you so much Adam Winkler and Clark Neily for a truly Illuminating and educational discussion of one of the most contested of all of our constitutional rights and for exploring meaningful areas of agreement and disagreement. We the People listeners check out Adams new book we the corporations: how American  businesses won their civil rights and Clark's super book terms of Engagement: how our court should enforce the Constitution's promise of limited government and of course go to the interactive Constitution and learn more. Adam, Clark, thank you so much for joining.

Winkler: [01:00:45] Thank you.

Neily: [01:00:46] Thank you.

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