Judging Freedom - The Right to Bear Arms, From A-Z with Stephen Halbrook

Episode Date: February 10, 2022

The Right to Bear ArmsA Constitutional Right of the People or a Privilege of the Ruling Class? ByStephen P. Halbrook  is the first scholarly study of the history of the right to bear and carry arms outside of the home, a right held dear by Americans before, during, and after the Founding period; it rebuts attempts by anti-gun advocates to rewrite history and "cancel" the Founding generation's lived experiences bearing firearms.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello everyone, Judge Andrew Napolitano here for Defending Freedom. Today is Thursday, February 11, 2022. Today's Thursday, February 10, 2022. My guest today is a friend and colleague of mine, Stephen Holbrook. Stephen is not only a lawyer, he's a social philosopher. So in addition to the Juris Doctorate degree, he has a PhD degree, a PhD in social philosophy. He is also an expert on the right to keep and bear arms and has written a fabulous book, which many of us who are looking for ammunition to defend the right to keep and bear arms have read and devoured, and it's called Arms, a Constitutional Right of the People or a Privilege of the Ruling Class. Stephen, it's a pleasure. Thanks for joining us today. Good to see you, Judge. Thank you for having me. You and I know from history and from empirical data that more guns equals

less crime and more guns equals more freedom. What is the thinking of the other side on this? How do they counter these empirical truisms? Well, what's the old story that statistics lie, liars use statistics? I forgot exactly how- Oh, I know. It's Mark Twain. There are lies, there are damn lies, and there are statistics. Yeah. You can manipulate statistics any way you want, but our founders set forth certain rights in our Bill of Rights, and they made the decision then. I don't care what somebody says about statistics. It's a categorical right. You have a right to keep and bear arms and the other rights, free speech, assembly and whatnot. So that settles it. And the Supreme Court's made

that clear in its District of Columbia versus Heller decision from 2008. There's certain options that are off the table. So you're right. So we went for about, I don't know, 150 years where people didn't think twice about the right to keep and bear arms. Then 1934, some cockeyed Supreme Court opinion in the Miller case where nobody even showed up to resist the governments and treaties, unleashed the feds and the states to regulate the right and keep and bear arms. So it wasn't until 2008 that the late great Justice Antonin Scalia basically said what you just said, which is that the Second Amendment means what it says. And if people today don't like it, it's too bad. There's a means for amending the amendment, amending the Constitution, but it does mean

what it says. And in all those years before 2008, a lot of elites had guns. A lot of elites were protected by people with guns. I mean, I remember Hillary Clinton complaining during the 2016 campaign about AR-15s, very, very super accurate, incredibly strong weapon, which is perfectly legal to own. Why do they need weapons like that? And then it turned out that the Secret Service team that was protecting her each had assigned one of the AR-15s to them. They actually had something that was even stronger. So the elites don't care when these weapons are used to protect them. They just care when we have the weapons to protect ourselves when the police can't be there. Or, and this is doomsday, Scalia said this very clearly, to protect us from a tyrannical government.

When they have them for their own protection, they call them personal defense weapons. When we have them, they call them assault weapons. As a matter of fact, however, what they call an assault weapon is just an ordinary semi-automatic rifle. They're commonly possessed by millions upon millions of American citizens for lawful purposes. You go to any shooting range in the country and maybe a third of the rifles you see will be AR-15 type rifles. Our founders were worried about protecting, citizens protecting themselves in self-defense, protection against tyranny, invasion, all the other reasons why you trust the people with arms. In Madison's words, as he said in the Federalist Papers, that the European

governments, the monarchies were afraid to trust the people with arms. That's one of the things that makes Americans different. We trust the people with arms. And with these ordinary rifles, we have a situation that law abiding citizens generally have them and they're used at a very low rate in actual crime. The main title of my book is The Right to Bear Arms, a subtitle, A Constitutional Right of the People, or Privilege of the Ruin Class. I shouldn't have to write a book like that. Nobody should. The Second Amendment specifically says the right of the people to keep and bear arms shall not be infringed. But a concomitant theory has been made up that you don't have a right to bear arms. You have a right to bear arms in the militia, which is crazy because you don't even have a right to be in a militia unless you're conscripted. Then it's by compulsion. So the case shouldn't even have to be decided by the Supreme Court, but it's there right now. New York State Rifle and Pistol Association versus Bruin. Argument was held in November.

I thought it went very well for the litigants, and we expect a decision in June. So Justice Scalia really had some great things in that District of Columbia versus Heller decision, and it was a tidal wave in the legal and judicial community because it changed the law 180 degrees from what it had been. But there are things in there like the right to keep and bear arms is a derivative of the ancient right to self-defense. Now, that's about as close to calling it as a natural right as you can. I once had the chance of interrogating Justice Scalia when I was teaching at Brooklyn Law School. We had a program at the Brooklyn Academy of Music. There were 2,500 people there.

This wasn't a Fox program. This was a law school program. And the whole New York City legal community, or most of them, was there. And it was Justice Scalia and me. It was one of the great moments of my career, deeply privileged to do it. I said to him, why didn't you call this a natural right? And he looked at me and he goes, it sounds too Catholic. Oh, yeah. I said, Nino, you go to mass every day. He goes, I do. But not all the other,

not the rest of the majority on the court do. And I needed their votes. So, but the point is, the right to keep and bear arms is a modern iteration of your right to protect yourself from anyone. And the opinion also says you have the right to keep and bear the same level of technological arms as the other side does. That means the crooks and the government, right? That's correct. One thing that's clear, police and military have guns, criminals have guns, and the whole issue boils down to whether citizens are going military have guns. Criminals have guns. And the whole issue boils down to whether citizens are going to have guns, the kinds of guns that citizens can use to protect themselves. We have an unlimited number of magazines in this country, for example, and they hold more than 10 rounds, just millions and millions of them. Criminals can get them.

So then the question is, are we going to make it a crime for a law-abiding person to have a magazine that holds more than 10 rounds, which is something- Well, it is in New Jersey. Right where I am at this moment, it's a crime. And that, I forget what the number is. I think it's eight or nine, but it's below 10. That number was concocted by politicians who never, ever had a weapon in their hands. The law was passed in 1990 and it was 15 at that time. Now it's 10. And this whole issue is being litigated in California at the moment. We had a

three judge panel invalidate the California ban. And of course the Inmont Court, hey, this is the Ninth Circuit. They overturned that. There's an automatic rule there that the Second Amendment never wins. That's another issue that might find its way to the Supreme Court, that and these issues about rifles. So it boils down to whether law-abiding people have the same right to protect themselves as others. And getting back to your point about natural law, our founders specifically talked about the right to self-defense as the first law of nature. It goes back to Blackstone under the English common law. That was well settled and it's settled today. When Jefferson said, where the people fear the

government, there is tyranny. And where the government fears the people, there is liberty, he obviously had in mind that the government would fear the people because the people would rise up against it and would have the same means of overthrowing it as the government would to attempt to suppress their uprising. And look, why did we win the revolution and not because we had the more just cause because we had better guns we had the kentucky long gun right which fired twice the distance more or less of the british guns and we were able to see them coming and knock them off before they could get close enough to us to shoot us. And did the government distribute the Kentucky long gun? Hell no. The farmers came out with their own.

Right. You know, going back to Lexington and Concord, the British came up, told the militiamen to throw down your arms, damn you, throw down your arms. And then the fighting started. And it reminds me, if we bring it up to date to the oral argument, the New York's lawyer argued that you needed the king's license to have a gun, to carry a gun. Apply that to our patriots who made this country. We need the king's license. We don't think so. And in fact, they took up arms against the king. And that's our tradition. And that's the basis of our freedom. You know, on that point, you need the king's license. Chief Justice Roberts had a great one-liner in which he said, let's see, D.C. versus Heller defined the right to keep and bear arms as a fundamental liberty.

Why would you need the approval or even the notification to a bureaucrat if it's a fundamental liberty? How can the exercise of a fundamental liberty be subject to notification or approval of the bureaucrat? Translation, it's unconstitutional to require us to register these guns because if the government is going to fear the people, they should not know, they should not be able to know which people have guns. Right, and even Justices Kagan and Sotomayor asked the New York lawyer in the oral argument, is there any other constitutional right you can think of where you have to get the government's permission and the permission doesn't go out to but a very sub small subclass of people and the lawyer for New York said well this is different and one of the best parts of the

argument was I think it was Justice Alito asked her well people do carry guns, don't they? And she said, oh, you mean criminals carrying guns illegally? Yeah, that's what I'm talking about, said Justice Alito. How can we get the citizens evened up? You have the people who, the janitors, the cooks, and all the people who get off late, they got to go down the subway, they have to go home late at night through high crime areas. What's there to protect them? And instead, what happens is celebrities get the permits to carry, billionaires, people who pay a lot of money like bribes. There was a huge scandal in the New York City licensing division the last few years where money was paid, prostitutes were provided, tickets to ball games and to the Caribbean were provided to get carry permits.

And of course, a may issue regime of the type they have lends itself to that. If you have to get government permission, the corruption is going to be the inevitable result, not to mention denial of the right itself. How do you address the issue of, you know, you don't have to take a lesson to stand on the soapbox on the corner of 6th Avenue and 47th Street and give a speech. You don't have to take a lesson to write an essay on your desktop. Well, you probably should know how to use a gun before you carry it. Right. Any responsible gun owner needs to have some training and some practice. They need to practice regularly. What it comes down to, though, is just like other aspects of other constitutional rights, the right exists, and it's up to the person to make sure they exercise that right responsibly. Now, there are 44 states that have, by and large, licenses

to carry. They're issued to all law-abiding people. Most of those states do require some kind of training to get a permit to carry either openly or concealed. However, there's 21 states have constitutional carry. You don't have to get a license or permit at However, there's 21 states have constitutional carry. You don't have to get a license or permit at all. And has the sky fallen in those states? No. And it's up to the individuals as to the training they get. And most gun owners or a large number of gun owners are more trained than the police. They go out and practice every weekend if they can. And what's the qualification for an officer to qualify maybe once a year? So the exercise of Bill of Rights guarantees does presuppose a certain amount of responsibility. And there are

irresponsible people who drive cars, they get drunk and other aspects of life are imperfect. But if you allow the government arbitrarily to say who shall and who shall not exercise a constitutional right, it's not a right. I got to tell you a funny story. It's strange where constitutional carry exists. So I was giving a speech in Vermont, of all places, Vermont, the land of Bernie Sanders and socialized medicine. And the person who was in charge of getting me there and organizing the group, about four or 500 people at lunch, said to me, Judge, do you want a gun for a day? I said, what are you talking about? He goes, I know you're from New Jersey, but up here for 10 bucks, you can lease a gun with a holster and you can carry it.

And God forbid, if you have to, you can use it. So that type of enlightened thinking sometimes exists in the least likely places. I don't know where Senator Sanders' personal views are on guns, but if he's not in favor of them, he's not going to be Senator Sanders much longer because those folks up in the top of the Northeast part of the country believe in the right of constitutional carry. I'm very optimistic, Steve, after that oral argument. And I think that these anti-gun people in the government in New Jersey and the government in California, two of the worst states in the union, are in for a very, very rude awakening when the Supreme Court says it's a constitutional right and you don't need the government's permission to exercise it.

I'll let you have the last word. You are the foremost defender of this right that I know, Stephen. Well, I started this subject when I was an undergraduate in college. That was back in the 60s. Back then, they had the collective rights view that the National Guard had a right and the states had rights. It's been a long time coming since then. Up until the 60s, the right was never really discounted or thought to be non-existent. And that's when the court started ruling in order to uphold all the gun laws that the right doesn't pertain to ordinary people. Justice Scalia nailed the nails in the coffin of that point of view. And it's going to be a continuing upswing, I think, in recognition of

these rights. We've got more gun owners than ever before in this country. Public opinion is against more restrictive gun laws. And I think more and more people are aware that they have this Second Amendment right and they want to exercise it. Stephen Halberg, it's a joy to have you. And my friends who are watching and listening, the book is called Arms, a constitutional right of the people or a privilege of the ruling class. If you ever get at a cocktail party or a dinner party and you're in an argument over the Second Amendment, Stephen Halberg has all of the best arguments for you right then and there in an easy to read and go get them book. Stephen, it's a pleasure. Thank you for joining us. Thank you, Judge.

Good to see you again. Likewise. Judge Napolitano, judging freedom.