RAY SUAREZ: Welcome to Need to Know. Thanks for joining us. The topic of gun control has been front and center ever since last December’s elementary school mass shooting in Newtown, Connecticut. And that discussion inevitably leads to another one about the second amendment to the Constitution, a mere 27 words from 1791 that continue to inspire fierce debate more than two centuries later.
NEWS CLIP: A critical part of the Bill of Rights: the second amendment…
NEWS CLIP: Decade agenda to attack the second amendment…
NEWS CLIP: While preserving our second amendment rights…
NEWS CLIP: They all support the second amendment as do I…
NEWS CLIP: The second amendment is protected…
NEWS CLIP: There is a second amendment right to bear arms…
RAY SUAREZ: The term second amendment is tossed around all the time. But what do you really know about it. Who was behind it? What were its authors trying to achieve? And most importantly how does it apply today when muskets have been replaced by semi-automatics?
Joining us a distinguished panel of experts. Saul Cornell is a history professor at Fordham University. He’s the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control. Craig Whitney was a foreign correspondent and editor at the New York Times and is the author of Living With Guns: A Liberal’s Case for the Second Amendment. Joyce Lee Malcom is a constitutional law professor at George Mason University Law School. She’s the author of several books including To Keep and Bear Arms: The Origin of an Anglo-American Right.
Thanks to all of you for joining us. Let’s set the scene at the time that the Bill of Rights is being drafted of which the second amendment is one of the ten in that Bill of Rights. Professor Malcom, from British rule to American self-rule, what was the attitude toward guns? What did the law say about who could own them and under what circumstances?
JOYCE LEE MALCOM: I think there was just a general feeling that this is one of– intrinsic rights and fundamental rights– that they deserved as– the English colonists. And the people were allowed to have weapons– to protect themselves. They also had a duty– the– those of certain ages, to serve in the militia. Sometimes they were also called upon to help to keep the peace in their own communities. But they were expected to be able to be armed and have their own arms to do that.
RAY SUAREZ: Apart from what the law said, Craig Whitney, have common Americans always been well-armed?
CRAIG WHITNEY: Well– they certainly were in the Colonial days. And– they needed to be. Once the Native Americans realized — these British men– weren’t just coming to be friendly or teach them things but to squat on their land and seize it– the violence between– native American tribes and– colonists was pretty horrendous. So they definitely needed arms for self-defense and for hunting. But it was always connected with a civic duty to serve in the common defense if called upon.
SAUL CORNELL: One of the things that we forget is that in almost every one of the colonies the militia law required people to be armed. They’re– they’re finding a way to protect themselves. ‘Cause the militia is functioning like the Rotary Club, the Boy Scouts, the police. It’s– it’s an org– it’s one of the central organizations of colonial society.
RAY SUAREZ: Professor Malcolm, we weren’t sure we were going to have a permanent standing army, were we?
JOYCE LEE MALCOM: There was a lot of worry about a standing army being a threat. So it was the militia that they felt more comfortable with ’cause these were their neighbors. There was a sense that the citizen soldier would never– harm– neighbors and friends. And they tried very hard to avoid a standing army although eventually an army is sort of built into the Constitution.
RAY SUAREZ: Well, we had laws that enshrine the right to bear arms, laws that specifically supported the maintenance of a militia. But in the second amendment itself which, like all the articles, is a result of a compromise and debate, we get those famous two clauses that give us another 225 years of family feuds. In order to clear up nothing, let me read the 27 words. “A well-regulated militia,” comma, “being necessary to the security of a free state,” comma, “the right of the people to keep and bear arms,” comma, “shall not be infringed.” Well the second half, “the right of the people to keep and bear arms shall not be infringed,” is pretty straightforward. Yet at the same time early American state legislatures passed laws all the time that spoke about the conditions under which guns could be held …
CRAIG WHITNEY: Infringed doesn’t mean infringed on. There were always regulations about where you could use guns, when you could bring them into cities and towns. Could you bring them in loaded. And this went on also later in the Wild West.
SAUL CORNELL: We have this idea that for instance if a right’s inalienable that somehow it’s not regulatable. The right was always regulated. But to get back to your point about the second half it– it does talk about bearing arms. And I think the– the most typical meaning of that in the 18th century is to– is to the use of arms in a particular context. You don’t bear arms when you go hunting. That’s not the typical usage. There are a couple odd, unusual– examples of that. But the typical usage is you talk about the part of the population capable of bearing arms. You’re talking about men between a certain age who are gonna participate in a militia.
JOYCE LEE MALCOM: The Supreme Court would disagree with that.
SAUL CORNELL: Well, the supreme court of course–
JOYCE LEE MALCOM: With that analysis– it did.
SAUL CORNELL: –did disagree with that. But I don’t anyone’s ever accused them of being good historians.
RAY SUAREZ: But let’s– let’s get to the—
RAY SUAREZ: –the tough part about that first half. There’s that– that inescapable if then proposition of putting that first clause in there. What is it meant to mean?
JOYCE LEE MALCOM: Two things. First of all– when you look at the drafting history and see the different changes in the language, the Senate that had sorta the final say about what the language was gonna be had– an amendment proposed that would’ve put the right of the people to keep and bear arms for their common defense, to add “for their common defense” shall not be infringed. And that was rejected. So it seemed to me that, you know, when– in rejecting that and leaving that out that they had in mind that they did not want that in there.
RAY SUAREZ: But they put in the militia clause?
JOYCE LEE MALCOM: Yeah. I think part of the reason for the militia– being listed as the– necessary security of a free state was what you had mentioned earlier, the– the fear of a standing army, that– that they were sort of giving the impermader to the militia. This is the necessary security of a free state.
CRAIG WHITNEY: Remember that the militias were run by the states or– partly by the states. And the reason why the amendment was offered was as– to reassure people who were worried about the strong federal government that was– that was being established by this new Constitution, despite all the checks and balances. And the Constitution itself needed more checks against the possibility of tyranny that the federal government would become too strong, especially if it had a federal– standing army.
SAUL CORNELL: If you think about exactly the point that Craig has made, that– that there’s a great concern that these state militias will be rendered impotent, then if you put the words common defense in– in the federal Constitution they’re gonna worry about, “Well, now our militias are bound to common defense.” But what about putting down slave insurrections? What about putting down Shays’ Rebellion? So the most historically I think accurate explanation of why they take out common defense is not what Joyce is suggesting at all. It has to do with what Craig is suggesting which is– these anti-federalists who wanted– to protect the militia and wanted to protect the right to bear arms really wanted– to wrest control of the militia back to the states.
JOYCE LEE MALCOM: I really think that– that this notion that– that somehow the second amendment is meant to be a power of the states or right of the states, states have powers. They don’t have rights. Those first amendments, first eight anyway, talk about the right of the people, not the right of the states. All of the– all of the–
SAUL CORNELL: But nobody’s argued about the states’ rights– can I not just say–
JOYCE LEE MALCOM: Yeah, but you really are. All of– among all of the lists quite a number of proposed amendments that states put forward when they ratified the Constitution, there wasn’t one that suggested that any rights about the militia be given back to the states, not one. And the second amendment doesn’t give the states back any rights. It’s an individual right to keep and ha– bear arms.
CRAIG WHITNEY: Right.
RAY SUAREZ: Well, let’s look– take a look at the 19th century. That’s where a lot of Americans historical memory comes from, whether it’s the Civil War, or the taming of the West or fighting against Indians– I don’t know if High Noon and Bonanza is anything more than good television and good movies. Is it good history? Was America as armed and as trigger-happy a place as it comes to us in modern popular culture?
CRAIG WHITNEY: Maybe not as trigger happy. The–shootout at the O.K. Corral started because Ike Clanton had been fined $27.50 for violating a town ordinance— against carrying a weapon in public. And so, you know– that produced– a feud. And the shootout happened at O.K. Corral. But it– it just shows you that they always had– tried to keep violence under control, even though a lotta people were carrying guns for necessary reasons.
SAUL CORNELL: But if we go back to the very beginning I think what’s interesting and what we lose sight of is that interpersonal homicide rates in– in– in the year of the second amendment are very low among White Americans. They’re s– astronomically high when you take into account Native American deaths. But as we move into the period of revolution, Jacksonian democracy, as American industry starts to make reliable, concealable weapons, handguns and– and fearsome weapons like Bowie knives– then you start to see rising levels of interpersonal violence. And you see the first modern style gun control laws. And this is where you start to see the first state cases on the right to bear arms. And of course there are two interpretations that emerge. There’s Joyce’s interpretation that it’s a fundamental individual right. And then there’s the other interpretation that I think is close to what Craig and I are saying, that it’s– that it’s– a right that citizens or individuals have. But it is shaped by the militia purpose. And we’ve been arguing over that Jacksonian debate really for the rest of American history.
CRAIG WHITNEY: I don’t have a gun in this fight. But I would say– it’s not that– people could not carry guns wherever they wanted. There were regulations everywhere about where– where, when–
JOYCE LEE MALCOM: But they’d have a right. That was the–
CRAIG WHITNEY: They have a right to keep and bear arms–
JOYCE LEE MALCOM: –that would be his –
CRAIG WHITNEY: –but not to take them wherever they want.
RAY SUAREZ: By the Civil War when the Union Army goes into the field with modern rifles– what– what a firearm can do is very different from what a firearm could do less than a century earlier when the second amendment was being framed. What comes out of that? Do we have any other thinking? Or are we still largely living in a 1791 world?
SAUL CORNELL: Well, I think what’s interesting is you have a couple different traditions going into the Civil War. The abolitionists– are divided between the pacifists and the really aggressive– John Brown wing of the abolitionist movement who really believes in armed, insurrectionary– use of violence. And– and they have a vision of the second amendment that’s very aggressively individualistic and revolutionary. In the slave South you also have a very individualistic vision of– of the– of the right to bear arms. What we sometimes lose in the modern debate is the people in the middle who wanted to regulate firearms and were sort of the majority. The more typical thinking in this time period is– the idea that we need to regulate firearms. We need to regulate the militia. And– and that’s the tradition going into the Civil War.
RAY SUAREZ: When Sherman writes, I think it was shortly after the Civil War about the men of leisure of the South, who could shoot from a galloping horse, who were crack shots, and that culture – the Southeastern American culture – helped settle the West. Is there a cultural dimension to this?
JOYCE LEE MALCOM: I think it was the sense of what a gentleman would be able to do, the– you know, hunting was it was a leisure activity as well as being a useful one. But on the issue of culture a little bit later and even in the South at that time you have groups who– people are– your majority are worried about having firearms. And so they want to have some means of– of making sure that groups that they’re worried about, either blacks in the South or immigrants in the North– can be– constrained and not allowed to have weapons. And so I think that’s also behind this issue. It isn’t just the technology. It’s who it is that’s gonna be, you know, holding those weapons.
RAY SUAREZ: There was consent, if I read the history right, widespread consent to the idea that something like a Thompson machine gun–
JOYCE LEE MALCOM: Oh, yes, yes–
RAY SUAREZ: –is so lethal in the wrong hands that it is, that it’s okay to ban certain weapons for personal use?
JOYCE LEE MALCOM: That was 1934, the federal government passed– legislation to ban weapons that the Al Capones were using, you know, all of this terrible gang violence. And so they banned, you know, machine guns, and sawed-off shotguns and silencers, weapons that seemed to be the preferred weapons for criminals. And I think that was, you know, this sense that nobody needs a machine gun for self-defense.
CRAIG WHITNEY: You don’t hear groups like the N.R.A. complaining very– very much anyway about that imposition on fully-automatic Tommy guns. And you’ve not seen a Tommy gun or a fully-automatic weapon turn up in any one o’ the school gun massacres that we had in the United States in the last 20 years.
RAY SUAREZ: But if we’re basing part of our endless family fight over guns on whether or not it’s possible or permissible to regulate, restrain, constrain, the idea that there are some things that you can say, “You just can’t have it.”
JOYCE LEE MALCOM: Oh, yeah. They– they– they’ve always had that. I mean, people weren’t supposed to have a cannon in their front yards back in the Colonial era. I mean, there were always things that were sort of appropriate for the individual to have–
CRAIG WHITNEY: What made common sense.
JOYCE LEE MALCOM: Yeah, yeah–
CRAIG WHITNEY: Exactly.
RAY SUAREZ: Ah, but cannons were beyond the means of most people. And– a handgun is within the means of most people now. And that’s a very big difference.
JOYCE LEE MALCOM: I think that it– a pistol or a handgun is appropriate for self-defense. It’s– it is really– an ideal weapon for self-defense. It enables the weak person to protect himself against a stronger person– older person against a younger person. It really is an equalizer.
SAUL CORNELL: Just as Samuel Colt said.
JOYCE LEE MALCOM: It is–
CRAIG WHITNEY: The equal–
JOYCE LEE MALCOM: –yeah, exactly. So that’s very different from a real military weapon like– a machine gun or– a bazooka or a rocket launcher, something like that. This is something that– that is in common use for self-defense and is– and is very practical for that purpose.
RAY SUAREZ: Post-World War II era we start to kick up the tempo as the debates become more intense and also the legal scholarship around these questions becomes more frequent. What has happened to the common understanding of the right to have a weapon since the Second World War, Craig?
CRAIG WHITNEY: Well, it– it really– came to a head in the– 1960s– which we tend to forget today was a decade of intense– social turbulence, racial strife, riots and assassinations which finally led in 1968 after– Martin Luther King and– and Senator Robert Kennedy were assassinated to the– to the first real federal gun control legislation. It established categories of people who– who were not– en– entitled to buy guns, people with criminal records– drug addictions and so on. It set up a requirement that if you’re in the business of selling guns, you have to be federally registered.
And that was later– improved and tightened. And a federal database was created in the ’90s– after the Brady Law was passed. And there again– you know, that– that followed by a decade or more– the assassination attempt against President Reagan. So– social unrest has consequences. People fear gun violence more. Then there’s a backlash as people realize that– keeping– the Black Panthers from having guns or wearing them openly means that you and I can’t do it either. And– attempts are made to, you know, loosen the– the regulations.
RAY SUAREZ: Eventually there were test cases for these laws, weren’t there, to see if they were consistent with the second amendment?
SAUL CORNELL: Well, but you know what’s interesting before we get to that, Ray, the use of the second amendment in some of these debates, like if you go back and look at the American Rifleman from the 1950s you hardly see the phrase second amendment. So the– the second amendment as this kind of rallying point, as this– as this mantra, as this slogan, as this organizing principle–
JOYCE LEE MALCOM: Right– it’s called a right.
SAUL CORNELL: Well, but it was– it was– it just wasn’t part of the discourse. You don’t see the second amendment– used in American public life like you do today 30, 40 years ago.
JOYCE LEE MALCOM: I think it’s just when there were all these threats to ban weapons that there’s been– you know– an emphasis on– on it as a right. I think it– the great majority of Americans have always assumed it– that it was their individual right. There are 44 states that have the right to keep and bear arms in their Constitutions. And some o’ those were recently changed to make it absolutely explicit that they’re individual.
RAY SUAREZ: So if I understand you–
JOYCE LEE MALCOM: So–
RAY SUAREZ: –you’re saying part of the use of the language of rights around this comes from a perceived threat to that right–
JOYCE LEE MALCOM: Yeah. Yes. And I think it– and the– and with these 1960s laws there is that threat.
CRAIG WHITNEY: There was– a commission headed by Milton Eisenhower that recommended– basically outlawing and seizing all 29 million at the time handguns that were in private hands in the United States. The recommendation went to the Nixon administration which had just taken over and, you know, it never went anywhere. But I think that kinda thing is what the N.R.A. is harking back to when it says any kinda gun control is inevitably gonna end up with the seizure of– the weapons that we have.
JOYCE LEE MALCOM: Well, there are lots of gun control– there’re lots of law controlling use of guns. But, you know, this idea of banning ‘em– or and seizing guns is– quite a different thing.
RAY SUAREZ: Has the momentum, Craig, generally speaking over the last– couple of decades been toward a less-restricted, more-permissive– attitude toward the individual citizen owning, keeping and carrying a firearm?
CRAIG WHITNEY: I’d say absolutely with– with some exceptions that have happened in recent months because of reactions to Newtown and Aurora. Absolutely –you know, New York, Connecticut, Colorado even and Maryland have all passed–
JOYCE LEE MALCOM: Have sort of reacted– right
CRAIG WHITNEY: –stricter gun control laws–
RAY SUAREZ: So where does that lead?
SAUL CORNELL: Well, I think the big problem we have is we have regional subcultures around guns. But we have almost an integrated national market for firearms. So firearms move very easily from Georgia into New York although they have very different gun cultures in those two places. And that’s– that’s why unfortunately to have any meaningful kind of– impact on gun violence reduction there has to be some things– done at the federal level. Many things can be done at the state level for instance, like safe storage laws are something you would do at the state level. And what makes sense for safe storage in the Bronx or in Connecticut might be very different in Alaska. But the problem is, you know, that guns move from Ohio to places like New York very, very quickly.
JOYCE LEE MALCOM: Yeah, that’s the problem with the laws, that it– you know, affects law-abiding people but is– it’s people who have, you know, in– intent to do some harm are quite easily able to get firearms. They never will go through a background check.
CRAIG WHITNEY: I do think that argument that criminals won’t undergo background checks therefore background checks are useless is specious.
JOYCE LEE MALCOM: I don’t think they’re useless. I just think we have realize that it’s not going to affect the people who plan to do something, you know, bad–
CRAIG WHITNEY: It– it can. It can affect some of them. And– and if it can– it should. But– I think it’s realistic to realize that gun control alone is never gonna solve the gun violence problem–
JOYCE LEE MALCOM: No, no–
CRAIG WHITNEY: –not all by itself.
RAY SUAREZ: Let’s close with a look at the Heller decision. The District of Columbia had one of the most-restrictive gun ownership and possession laws in the country. It was challenged by a resident of the District of Columbia. And the Supreme Court established a precedent that says, “Yes, finally this is an individual right.” Militia clause, whatever, this is an individual right. Where does that leave the debate over what to do now that we’re engaged in right now and in the United States?
JOYCE LEE MALCOM: First of all the– the majority in Heller pointed out that people have a right to keep guns that are in common use for self-defense and other lawful purposes. So the idea that you’re going to ban semi-automatic rifles that are in common use doesn’t square with that standard. I should also say that– Scalia kinda carved out an area where he said that these– that certain kinds of laws could remain– and that would include– prohibition against felons having weapons, or the mentally ill or weapons being carried into sensitive places. What I find kind of shocking is that the Supreme Court’s decision in Heller is being so widely ignored by states such as Connecticut and New York. They just sort of passing all this. And it really doesn’t– pass muster with those particular findings and those particular opinions. I mean, these– these are–
CRAIG WHITNEY: Well–
SAUL CORNELL: Well, that’s Joyce’s opinion –
JOYCE LEE MALCOM: –wildly out– no– I’m just talking about it–
RAY SUAREZ: No, no. But Professor Cornell, there– I think there’s– there’s– a fundamental question here which is whether the plain language of Heller makes it really difficult from here on out to write a law restricting access to weapons that will pass Constitutional muster?
JOYCE LEE MALCOM: But it already has common use–
SAUL CORNELL: But it already has, Ray. The District of Columbia has an assault weapons ban and a ban on high-capacity magazines. And one of the most conservative judges interpreting Heller said it’s very clear that– that the– District’s law passes Constitutional muster. He said it meets– a compelling state interest. And– most of the scholars have written on this– including people on the right– have all said that there’s very little problem with an assault weapon ban with Heller.
CRAIG WHITNEY: And also don’t forget the ban in District of Columbia on handguns was really a ban. You could not have–
JOYCE LEE MALCOM: Oh, yeah—
CRAIG WHITNEY: –a handgun in the District of Columbia.
JOYCE LEE MALCOM: You couldn’t have it, right.
CRAIG WHITNEY: The ban on assault weapons that New York State for instance passed after Newtown led– leaves the guns that– assault weapons– so-called assault weapons that people have in their hands. It’ll certainly be challenged in court. And–
JOYCE LEE MALCOM: Oh, yeah–
CRAIG WHITNEY: –we’ll see what the Supreme Court says– eventually.
RAY SUAREZ: Well, thank you all for a lively and wide-ranging conversation. Joyce Malcom, Craig Whitney, Saul Cornell.
JOYCE LEE MALCOM: Thank you.
CRAIG WHITNEY: Thank you.
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RAY SUAREZ: That’s it for this edition of Need to Know. Jeff Greenfield will be with you then. I’m Ray Suarez. Thanks for watching.