The Daily - Tuesday, Apr. 3, 2018

Episode Date: April 3, 2018

The Second Amendment is just 27 words long. But those 27 words are among the most cryptic and divisive in the United States Constitution — and they are at the heart of one of the most contentious debates in American politics. Why is the Supreme Court so reluctant to clarify them? Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily Show. Today, the Second Amendment is just 27 words long. But those 27 words are among the most cryptic and controversial in the U.S. Constitution. Why the Supreme Court is reluctant to better define them. It's Tuesday, April 3rd. Adam, can you set the scene of this 1939 Supreme Court case? What's going on at the time? set the scene of this 1939 Supreme Court case? What's going on at the time?

So it involves a guy named Jack Miller, who was a small-town thug in the heyday of Midwestern bank robbery in the Al Capone era, in the Great Depression, who was a member of a gang that robbed a lot of banks. He turns government informant. He goes kind of straight for a little while, but he's caught between Oklahoma and Arkansas with a sawed-off shotgun, and he's prosecuted by federal authorities for violating a then-recent gun control law called the National Firearms Act. Adam Liptak covers the Supreme Court for The Times. So Miller, charged with this crime, says, wait a second, isn't there a Second Amendment?

Don't I have a constitutional right to keep and bear this gun? And he challenges the prosecution on Second Amendment grounds. And this case makes it up to the Supreme Court, which in 1939, for the first time ever, tells us something about what the Second Amendment means. And what question is the court trying to answer in this case, Adam? The basic question for the court is how to make sense of the Second Amendment, which has two competing ideas in it. Let me read it to you, and you'll see what I'm talking about. It's got two clauses.

The Second Amendment says, a well-regulated militia being necessary to the security of a free state. So that announces something about what the amendment wants to accomplish. Is it the only thing it wants to accomplish? Is it just an illustration of what it might like to accomplish? And then there's a much easier part of it to understand where it says the right of the people to keep and bear arms shall not be infringed. If we only had the second clause, that would be clean. That would be like the First Amendment. Congress shall make no law abridging the freedom of speech. But the introductory clause

has caused people to scratch their heads for centuries about exactly what the framers of the Constitution meant to accomplish. Whether the right to bear arms protected by the Second Amendment protects a collective right concerning state militias or an individual right that every citizen has. And just so I'm clear, what exactly is the tension between the two clauses, the kind of collective clause and the individual one? One way to think about it is that the first clause gives an example of a reason why you might want to have a right to keep and bear arms. It's in order to have a right to keep and bear arms. It's in order to have a well-regulated militia, but maybe not the exclusive reason to have a right to keep and bear arms.

The second way of thinking about it, though, is that the first clause is limiting. The first clause says this is why you have a right to keep and bear arms. The only reason why, and that is to participate in a government-run militia. And so in this case of Miller and his sawed-off shotgun and the question of which clause in the Second Amendment should prevail, what does the Supreme Court decide? It doesn't directly answer the larger question of is this a collective right or an individual right. Rather, it says that because shotguns have no reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say the Second Amendment guarantees the right to keep and bear such

an instrument. In other words, it's saying all we need to decide here is sawed-off shotguns have nothing to do with militias. Therefore, you don't have a right to have one. Now, many people think that's suggestive, that it's buying into the collective version of the Second Amendment, but it doesn't say so in so many words. It just says to the extent the government wants to regulate kinds of weapons, it has to be the kind of weapon you can conceive of being used in a militia. Oh, interesting. So in practical terms, the court has implied that the Second Amendment is a collective right. The Miller case, cryptic and opaque though it was, did sort of set the tone for the conventional wisdom, the consensus view for decades and decades on in the public consciousness and in the legal academy that the Second Amendment doesn't protect an individual right to keep and bear arms, but only a collective

one. And how does this decision impact the American conception of guns and gun rights? For the next several decades, people across the ideological spectrum, including law and order conservatives, really believed that the Second Amendment has nothing to say about gun control laws because it only protects a collective right. And the best example of this really is a comment by Chief Justice Warren Burger. If I were writing the Bill of Rights now,

there wouldn't be any such thing as the Second Amendment. A Nixon appointee, a law and order conservative who goes on television, having heard the view that the Second Amendment might conceivably protect an individual right, he said that was one of the greatest pieces of fraud. I repeat the word fraud on the American public by special interest groups that I have ever seen in my lifetime. So even in conservative circles, where people may relish their guns and their right to own guns, they interpret the Second Amendment

to refer to a collective right to own guns related to militias. That's right. That's not to say that people didn't want to make sure that their gun rights were secured. They just thought it was something you do in the political process, you know, in legislatures, that it wasn't a question the Constitution was going to help them with. Right. And that makes sense because the only Supreme Court case that has touched on this implied that it is about a collective right. Exactly right. about a collective right.

Exactly right. Adam, when do things start to change? In the late 70s, early 80s, you start to see the NRA exploring whether there are arguments to be made on behalf of an individual right to bear arms. And they get some surprising allies, some fairly prominent law professors, Sanford Levinson at Texas,

Akhil Amar at Yale, and Lawrence Tribe, perhaps the most prominent constitutional scholar of his day, start to grapple with the Second Amendment and somewhat to their own surprise find that it's a part of the Bill of Rights that should be considered a real right. The Second Amendment provides a decisive response. The government is not constitutionally capable of disarming everybody. We may not like what it does, but we need to take seriously every part of the Bill of Rights. We have expanded First Amendment rights by taking the First Amendment seriously. And to be intellectually honest, we should also look seriously at the scope of the Second Amendment. So how does this idea, improbably shared by the NRA and these men in these scholarly circles, make it into the real world? Through litigation. Litigation, the great engine of American progress.

A rich libertarian lawyer named Robert Levy picks up on these ideas. He's not a gun owner, but he has ideas about what the Constitution means. I don't live in a dangerous neighborhood, and I don't feel the need to have a gun for self-defense. I do feel very much concerned about those people who do live in a dangerous neighborhood, including the plaintiffs in our case. And he launches a lawsuit in a case that he hopes will get to the Supreme Court and revolutionize Second Amendment law. So Levy doesn't even own a gun. So why is he interested in the Second Amendment? He told me, I interviewed him some years ago, he told me that he's not particularly interested in guns, but he pursued the case to vindicate his libertarian principles. But what the Constitution does, whether it's the First Amendment or the Second Amendment, it sets up a presumption that we have liberty. It doesn't mean that government cannot truncate our rights,

but government has to jump through some considerable hoops in order to do so. He believes in free markets, private property, individual rights, strictly limited government, and this fits into that libertarian conception of if the Constitution gives you a right to have a gun, he wanted to make sure that the government couldn't impinge on that right. We feel that this is a violation of the Second Amendment of the U.S. Constitution. So how did he go about building a case that he hoped would make it to the Supreme Court? He first of all identifies the strictest gun control law in the country, which is in the District of Columbia. And then he starts interviewing plaintiffs. And it's like a casting call. He said he wanted gender diversity, racial diversity,

age diversity, income diversity. So Robert Levy recruited six people, and a lot of people would find their stories very sympathetic. One of them was a woman who'd been trying to rid her neighborhood of drugs and wanted to keep a gun in her home to protect herself because people were breaking into her house. A second plaintiff was a gay man who'd been accosted by a gang using ugly language about him, and he wanted to have a gun to protect his own life. So these are, to a lot of people's minds, very attractive candidates for such a suit. But one by one, they get knocked off on various technical legal grounds. But he managed to maintain one plaintiff. One plaintiff survives, a security officer named Dick Heller. I moved into Washington, D.C. in 1976.

And in October, the D.C. City Council passed a law that said you were no longer allowed to own any kind of a firearm in D.C., but you could be grandfathered in by coming down to the police station and registering your firearm. And who is this guy, Heller? He was a security guard who carried a gun on the job in federal office buildings, but was very frustrated because he wasn't allowed to have one in his home. So I said, why would I want to register it? It's because they want my address. Why do they want my address? Because they want to come and get my gun for confiscation. And I said, no. The U.S. Supreme Court, it might be hard to believe, but not once in the history of this republic has the court ever said

what the Second Amendment's right to bear arms means in their view. For the first time in 70 years, the high court will take up the constitutional right to bear arms. So what happens with this case that his name becomes attached to? The case gets to the Supreme Court in 2008. It's the biggest case on the right to bear arms ever heard by the Supreme Court. And it is one of the most closely watched, highly anticipated Supreme Court cases. It's one of a half dozen huge cases in the 12-year history of the court led by Chief Justice John Roberts. A case that could decide for the first

time ever whether the Second Amendment guarantees Americans the right to own a gun. And people are very focused on whether the court, dominated by five conservatives, will revolutionize Second Amendment law by finding an individual right to keep and bear arms. A line to get into the court, according to the Associated Press,

began forming two days ago. We will hear argument today in case 07290, District of Columbia versus Heller. Mr. Dellinger. Good morning, Mr. Chief Justice. It may please the court. So how does the court rule? Justice Scalia also has our opinion this morning in case 07290, District of Columbia versus Heller. The court rules five to four with Justice Antonin Scalia writing for the majority. This case is here on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. That there is an individual right to keep and bear arms at least for self-defense in the home by law-abiding citizens.

We hold that the Second Amendment guarantees an individual right to have and use arms for self-defense in the home, and that the district's handgun ban, as well as its requirement that firearms in the home be rendered inoperative, violates that right. So in this ruling, unlike the ruling in 1939, the court finds that it is an individual right that's intended by the wording of the Second Amendment rather than a collective right.

That's right. And if the 1939 decision was a little hard to understand, this point, in Justice Scalia's opinion, was crystal clear. So what happens as a result of this ruling? To the surprise of many, almost nothing. The lower courts read the Heller decision. People challenge various gun control laws on all kinds of topics, background checks, waiting periods, assault weapons.

And the lower courts almost universally sustain those laws. They don't think Heller has made a difference in how you have to treat those laws under the Second Amendment. So the lower courts, in a sense, kind of ignored the fact that the courts seem to confer on the whole country the individual right to bear arms, which suggests that they would be ready to invalidate a lot of these gun control laws. Well, they certainly treat it differently than other provisions of the Bill of Rights. Laws that violate, say, the First Amendment get a very close look

and not infrequently are struck down. Laws said to violate the Second Amendment don't seem to get quite that level of scrutiny and seldom get struck down. So what then was the effect of this ruling if the lower courts are not applying it to gun control laws around the country? Good guys shouldn't be forced to break the law

to exercise their God-given constitutional right to protect themselves and their families. The effect of the ruling in public consciousness and public debate was to allow proponents of gun rights to start making arguments that weren't about policy or not only about policy, but about protecting a part of the Constitution. It's always been we the people, all the way back to the founding of this country.

The founding fathers were not afraid to trust the people with arms. It was the people with arms who had secured the freedom of the new nation. And I guarantee if the founding fathers had known this gun would have been invented, they wouldn't have rewritten the Second Amendment. They would have fortified it in stone. And that casts this kind of glow and aura around gun rights arguments that really is a gift to gun rights proponents from the Supreme Court. The founding fathers agree. Armed citizens make good government.

History clearly shows that our interpretation of the Second Amendment is the same as what Americans have always known, and the Founding Fathers intended. I think that they'd be proud of us for staying the course and disgusted by the politicians and media personalities who are so eager to deprive us of our rights. So in a sense, it's bringing kind of a nobility to the whole gun rights debate. Yeah, and think how far we've come, Michael. In 1939, the poster child for gun rights was, you know, a hapless, stuggish gangster in the Great Depression.

And now the NRA is able to argue that what they're protecting is something that was handed down to us by the framers of the Constitution. And what's happened on the Supreme Court since this ruling back in 2008? Almost nothing. In 2010, they said the Second Amendment also applies to state gun control laws in addition to federal laws like the one in the District of Columbia. laws in addition to federal laws like the one in the District of Columbia. And then the Supreme Court got out of the business of telling us anything about the Second Amendment, turning down case after case after case to the great frustration of the more conservative members of the court. Justice Antonin Scalia, while he was alive, and Justice Clarence Thomas now, will fairly often write, we don't understand why you're not taking these cases. You're treating

this constitutional right as a second-class right, and it's our duty to tell the nation what the scope of this right is. By comparison, this term, the Supreme Court has five First Amendment cases, and it will routinely explain and refine the scope of First Amendment rights. And you might think that with so many unanswered questions in the Second Amendment arena, the Supreme Court would get into the business of explaining what the scope of this right is, but it simply has not and doesn't seem to want to do it. And why hasn't the court taken up Second Amendment cases? What's behind that?

The court doesn't explain its decisions to turn down cases, so we can't know for sure. But I guess I would suspect that at least some elements in the court, the justices in the middle who voted for the Heller decision, but maybe a little warily, and I'm thinking of Justice Anthony Kennedy and Chief Justice John Roberts, may well have gone as far as they're prepared to go. So this court, which has told us that the Second Amendment gives us an individual right to bear arms, it seems like they have moral and legal reservations about taking that to the next logical place, which would be refining it and explaining all the ways

in which gun control laws might be illegal. You know, that's inference and speculation, but that is what I believe. They've gone as far in this realm as they're prepared to go. Even in Heller, they carved out all kinds of gun control laws that they said they didn't want to cast doubt on and that they're not going any further at the moment, at least with this composition of the Supreme Court, to expand Second Amendment rights. Now, should one or two members of the court leave?

Should President Trump get to appoint some new people? He certainly is constantly pressing his broad conception of the Second Amendment. We might start getting some different answers. About a week and a half ago, We want change! We want change! Hundreds of thousands of people, and especially young people, flowed into the streets to protest in the March for Our Lives movement. Vote him out! Vote him out! Vote him out! protest in the March for Our Lives movement. And that gets the attention of Justice John Paul Stevens, who wrote the dissent in Heller, who's retired from the court, who's 97 years old.

And I get word at the Supreme Court that he's interested in submitting a letter to the editor. And I provide the court with the right email addresses. But even as I'm doing that, I get an email from our opinion pages saying, we've just gotten a submission from Justice Stevens by fax. By fax? I got an email from somebody there saying, this thing came over the fax. It has no contact information. What do we do with it? How do we get in touch with Justice Stevens? This is great, but we just discovered we had a fax machine. And Adam, what did this faxed submission from former Justice Stevens say? He is clearly not done regretting what the Supreme Court did in the Heller decision,

but he's no longer talking about tweaking the Heller decision or returning to a collective rights view of the Second Amendment, but of repealing the Second Amendment entirely. Why would a Supreme Court justice of all people call for the repeal of a constitutional amendment? Well, it's a sign of real frustration. Supreme Court justices, of course, are in the business of interpreting the Constitution, not encouraging wholesale changes through the amendment process. And the fact that a former Supreme Court justice, a very sophisticated man, somebody who studied this question quite deeply, thinks the answer is to throw a part of the Bill of Rights overboard, tells you that we're at a place in our national debate where people are trying like crazy to find a way out of what they perceive to be a

terrible, terrible Krogmaier. Terrible harm is done by guns. And yet our nation's founding document protects our right to have them and limits the ability of society to address this question. Right. I mean, if it's possible for nine people to stare at the same 27 words and come to diametrically opposite conclusions about what they mean, that might be some reason to think that it's time to take another look at it and to clarify what we want it to mean. Adam, thank you very much. Thank you, Michael. Adam, thank you very much. Thank you, Michael.

We'll be right back. Here's what else you need to know today. On Monday, the Chinese government followed through with its threat to impose tariffs on U.S. goods in retaliation for U.S. tariffs on Chinese steel and aluminum. The Chinese tariffs, which will affect 128 American-made products, including wine, fruit, and pork, suggest that a trade war is now underway. But in a statement, China's Ministry of Commerce said it wanted to avoid escalation, saying, quote, China and the United States are the world's two biggest economies, and cooperation is the only correct choice. And British officials investigating the

poisoning of a former Russian spy, Sergei Skripal, believe that the nerve agent used to attack him was smeared on the door handle of his home. The plot was so complicated and risky that officials have concluded it had to have been ordered by the government of Vladimir Putin, which has denied any involvement. Skripal remains in critical condition, but his daughter, Yulia, who was also poisoned, is in stable condition and improving rapidly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.