Throughline - The Right to Bear Arms

Episode Date: January 18, 2024

In April 1938, an Oklahoma bank robber was arrested for carrying an unregistered sawed-off shotgun across state lines. The robber, Jack Miller, put forward a novel defense: that a law banning him from carrying that gun violated his Second Amendment rights.For most of U.S. history, the Second Amendment was one of the sleepier ones. It rarely showed up in court, and was almost never used to challenge laws. Jack Miller's case changed that. And it set off a chain of events that would fundamentally change how U.S. law deals with guns.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from the NPR Wine Club, which has generated over $1.75 million to support NPR programming. Whether buying a few bottles or joining the club, you can learn more at nprwineclub.org slash podcast. Must be 21 or older to purchase. It's dawn in Okemah, Oklahoma. Two cars, a Plymouth and a Ford, wind down the sleepy, dusty streets. In each car sit men with stockings and handkerchiefs over their faces, pistols and machine guns in their hands.

For most people, 1934, five years into the Great Depression, was a hard year. But the men in these cars, the O'Malley gang, they are not most people. They stop in front of two banks across the street from each other. The Depression is the golden era of bank robbery in the Midwest. And this gang is about to attempt one of the few successful double heists in American history. As the first rays of light bounce off the bank windows, the O'Malley gang strikes, taking two separate banks at once. Inside, they tie and gag employees, force a bank officer to open the safe. Word of the robbery splashes across gang fled. Eventually, the bandits get caught. One of them, a hulking 240-pound former bouncer named Jack Miller, he flips for the government. In exchange for immunity and freedom,

he testifies against his fellow bank robbers. Jack Miller, member of the Walter Irish O'Malley gang, whose squealing sent former co-members of the gang behind bars of Muskogee City Federal Jail. After which, Jack Miller goes free. Sometime later, Arkansas and Oklahoma State Police stop Jack Miller crossing state borders. In his car, they find an unregistered, sawed-off shotgun. The police arrest him for the illegal gun.

And this time, rather than cooperate, Jack Miller goes the other direction. He says, actually, having this unregistered, sawed-off shotgun, it's my Second Amendment right. In court filings, his lawyer said the Constitution guarantees it. The said National Firearms Act is in violation and contrary to said Second Amendment,

and particularly as charging a crime against these said defendants is unconstitutional. For most of U.S. history, the Second Amendment was one of the sleepier amendments. There were actually rarely court cases about it. It was almost never used to challenge laws. That is, until the Great Depression, when Jack Miller, this Oklahoma bank robber, pointed to the Second Amendment to justify his unregistered shotgun. Miller's story would be the heart of a case that would land the Second Amendment in front of the Supreme Court and set off a chain of events that would change how we look at the Second Amendment and gun rights forever. If there's one thing that I think just so often gets lost in the discussion about the

Second Amendment, it's that just basic fact that this right, like all other constitutional rights, speech, voting, they're all subject to various kinds of restrictions. It's not a binary. It's not an either or. I'm Ramteen Arablui. And I'm Randa Abdel-Fattah. On this episode of ThruLine from NPR, from the ratification of the Constitution to our modern Supreme Court, gun rights, gun regulation, and how bitter fights over the Second Amendment took over America. This year on ThruLine, we'll be taking a close look at the past, present and future of amendments to the U.S. Constitution. We'll be going back in time to tell the stories of why they were created, how they've been enforced and why fights over their meaning continue to shape life in America. Over the course of the year, we'll be looking to those amendments to ask,

what is a government obligated to do for its people? And to tell stories of people who've shaped the way that question gets answered. Coming up, the Second Amendment and the 27 words that started it all. Hi, this is Elijah Cox from Chicago, Illinois, and you're listening to ThruLine from NPR. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally,

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Find the unforgettable at autographographCollection.com. For something that has launched such huge controversies and fights, the Second Amendment is remarkably short. Just 27 words. Probably known to many, certainly etched into my brain, that says, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. So you have it memorized. Oh, very much so, yeah.

There's 27 words that have launched innumerable articles, political debates, now also legal cases. And also, in many ways, this guy's career. My name is Joseph Blocher. I'm a professor of constitutional law at Duke Law School, where I also co-direct the Center for Firearms Law. And along with my colleague, Daryl Miller, I am the co-author of The Positive Second Amendment, Rights, Regulation, and the Future of Heller. In other words, if you want to learn how and why those 27 words sparked such intense battles, Joseph Blocher, he's the guy you want to call. The Second Amendment was part of this first initial raft of rights, rights guarantees, which sort of emerged from the debate about the

ratification of the Constitution itself in 1789. So creating a Constitution that laid out the shape and size of a new federal government of a new nation was anything but straightforward. A delegation of representatives from the states, all decked out in wigs, got together and they disagreed and they argued over every little detail, especially about this one thing that the Constitution would do. It created this new, incredibly powerful federal government, including a federal standing army. And a lot of people thought that was terrifying, right? They had just won a war against a centralized government. Great Britain's centralized government. They'd beaten back the British by mobilizing and organizing armed militias. And now certain men writing the Constitution wanted to make sure people could stand up against a new American centralized government

if things went wrong. At the time, many people really didn't see themselves as American citizens. They saw themselves more as citizens of the states they lived in, like New York or Delaware. They felt very closely affiliated with their states, and they were worried about creating this new, powerful federal government. So they put the Second Amendment there as kind of a check against the federal government.

What were they afraid of in terms of the tension between the central government and the state government? It's a great question. It really goes to the central constitutional debates at the time about whether to ratify the Constitution. I mean, this is the core of the debate between the Federalists, who wanted to ratify the Constitution and were comfortable with more federal power, and the Anti-Federalists, many of whom were against the ratification of the Constitution and favored more state power, right? After the dust settled and political compromises were made to get both Federalists and Anti-Federalists on board, the Second Amendment as we know it emerged.

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. That is, we'll keep the state militias, we'll guarantee that they can stay armed, and there'll be like a check against this new federal standing army. That's the militia-based reading. But the phrasing left the door open to another interpretation, too. And that's that the Second Amendment is not, or at least not only, about protecting the organized militia, but about protecting sort of more broadly what's often

called an individual right to keep and bear arms for private purposes, like, for example, self-defense against criminals. Not necessarily like a tyrannical government, but like a home intruder. So from the start, there's this question, which of those two readings is the right one? Is the Second Amendment about the right of an organized militia to exist, or is it about the right of an individual to own guns?

Joseph says, you gotta remember, that ambiguity, it's because the Bill of Rights is the product of getting those two opposing sides to agree. Essentially, the price of getting anti-federalist support for the Constitution as a whole. Many of them said, look, I'm not going to support this without some kind of rights guarantees. Which is just fascinating to me out of so much of this is because of political compromise. How did the rights of who gets to have guns and what kind of guns they get to have, how did that evolve? Because that's always something that I found interesting is that it seems like when it comes to restrictions of weaponry, that seems to be usually targeted at people that are often seen

as a threat or challenging the mainstream. Who are some of the people that were restricted? If you look back to, say, 1791, when the Second Amendment was ratified, the groups that were being singled out for either restriction or prohibition were groups like Black Americans, Native Americans, those who refused to take loyalty oaths, Catholics, like all groups that were the subject of prejudice, bias, fear, oppression by dominant groups. And, you know, that story changes, or which groups are subject to that kind of changes over time. But absolutely, those were the groups that were thought to be dangerous. In colonial South Carolina, the law prohibited enslaved Black people from owning guns

because of their, quote, barbarous, wild, savage natures. Florida legalized white citizen patrols to search the homes and take guns from their Black neighbors. Colonial Massachusetts made it illegal to sell guns to Indigenous people. There were also laws that focused on the general public, like laws that made potentially dangerous people put up a bond and in some cases disarm them. So those are individualized. They're not just based on your group,

but like kind of who you are, right? This person's drunken or dangerous or whatever. So there was some of that too. Were there restrictions on, especially in 19th century, on where you could have a gun? Absolutely. And in fact, those go way, way, way back.

This is going to sound like it comes out of nowhere, but judges still cite this. It's still an important part of the debate, is if you go all the way back to the time of Edward III, in 1328, there was something enacted called the Statute of Northampton. It's still, I mean, the Supreme Court justices were debating this in the last big gun case, which prohibited, among other things, people from riding armed by day nor by night in fairs, markets, or in the presence of the justices or the other ministers, nor in no part elsewhere upon pain to forfeit their armor to the king and their bodies to prison at the king's pleasure. That's the statute of Northampton for 1328. By the time the Second Amendment's ratified, you'll see restrictions on taking guns into government buildings, courthouses.

Some of those gun laws, like, for example, those forbidding or restricting concealed carry, that was a common thing, especially in the South, actually. The South led the way on prohibitions on concealed carry. It was thought to be unmanly. It was the kind of thing that an assassin would do, not the thing that an upstanding person would do. Lots of restrictions in the 1700s and later in the 1800s on guns in or even near polling places. And the sort of underlying concern there seemed to be election-related violence. The underlying question for these locational restrictions is the same one that we have for the person-based restrictions, which is like, why those places and not others?

So, you know, because to me, what it shows is that there's always been gun control in some form. There's always been someone being restricted from having a gun for various different reasons. So that idea is not foreign. Absolutely not. Restrictions on who could have guns,

where you could take them, what kinds of guns you could have, how they could be displayed, like when they could be used. Those have always been subject to regulation. It's a question of like, well, what kinds of regulations are okay? Plenty of disagreement about that. But the idea of regulation, that has been a fact since the founding. Rights and regulation have always, always coexisted, even though the forms have changed. So you have all of this kind of complicated layers of regulation happening

at the state level, right? You know, we have the vague nature of the Second Amendment. So why did the federal government start to get involved? So it's interesting, you can almost hear the story in the text of the law. And the law here is the 1934 National Firearms Act. It imposes restrictions, not actually total prohibitions, but restrictions like taxes on the manufacture and sale of certain kinds of weapons. Weapons originally designed with World War I battlefields in mind had found a new home with gangsters. Now, those weapons happened to be things like machine guns, like automatic weapons, sawed-off shotguns, short-barreled rifles, stuff like that. Those were the guns associated with the gangland violence, which was so prominent in the 20s and 30s, right?

Like, what they had in mind was the Tommy gun, right? The Tommy gun that was used, you know, in the Valentine's Day Massacre in 1929, when Al Capone and his associates got pretended to be police officers and got a bunch of their sort of gangland rivals lined up against a wall and then mowed them down with Tommy guns. It's the, it's the Massey gun. I always say that. It's like old Tommy was Massey. The Tommy gun is that gun, you know. It is exactly that gun.

And you have to have like a cigarette dangling from your lip, I think, even when you say it. Yeah, no, it's exactly that gun. And it was. I mean, it really was prominent in crime at that time. Politicians took notice. President Franklin Delano Roosevelt, FDR, called for a new deal for crime and signed the National Firearms Act, the NFA, which specifically imposed new regulations on the weapons that gangsters loved.

This law was passed in 1934. That same year, Bonnie and Clyde, who were real people, like actual real gangsters, were ambushed by law enforcement and shot to death. And in their car, they found sawed-off, exactly the kinds of weapons that this law would go on to prohibit. Roosevelt himself was nearly shot in 1933 by a man named Giuseppe Zangara, who missed the president but hit a couple other people, including Mayor Anton Cermak of Chicago, who later died of his wounds. So Roosevelt was motivated personally.

So at the time that the National Firearms Act is enacted, so like early 1930s, there's this guy, Jack Miller. This is, of course, the same Jack Miller we met at the beginning of the episode. Who has become a member of a bank robbing gang using exactly the kinds of weapons that the NFA forbids to rob banks. And Jack Miller, wouldn't you know it, April of 1938, gets pulled over and's found to be in possession of an unregistered, sawed-off shotgun, right? So he is prosecuted under this act. Now, he raises as a defense the Second Amendment. He says, the Second Amendment protects my right to have this sawed-off shotgun. And I think to some people's

surprise, a district judge agrees with him and says, actually, yeah, the Second Amendment protects not just the sort of well-regulated, organized militia, but even an individual like you, Jack Miller, your right to have a gun and you can't be forced to pay this tax and to register your weapon and so on. So the judge orders Jack Miller released. The judge says the National Firearms Act, the law Jack Miller violated by going across state borders with an unregistered sawed-off shotgun, is not constitutional under the Second Amendment. And Jack Miller goes free. He immediately disappears, just takes off, right, back out into his life of crime.

But the case keeps on going up because the government wants to establish that the National Firearms Act is constitutional. So the government, which lost, is now peeling its way up to the Supreme Court. Supreme Court agrees to hear the case. The government has a great lawyer lined up. Jack Miller has a lawyer, but that lawyer can't find Jack Miller and can't get any money from him. So the lawyer says, I'm not going to come argue the case. I'm not going to brief it. I'm not going to show up. I suggest you decide the case on the basis of the government's briefs. So the case is only argued on one side, and the government wins. Unanimous opinion, pretty short. But what the court says is that the law is constitutional. The National Firearms Act is constitutional. And that Jack Miller's possession of this sawed-off shotgun had no reasonable relationship to the preservation or efficiency of a well-regulated militia.

So in other words, he's not closely connected enough to the Second Amendment to be able to get its protection. We construe the amendment as having relation to military service, and we are unable to say that a sawed-off shotgun has any relation to the militia. Supreme Court Justice James C. McReynolds. So you might say, well, this is bad news for Jack Miller. He must have been so bummed when he found out. It turned out, actually, that about six weeks before the Supreme Court handed down its decision, Jack Miller and a couple of associates robbed a bar in Oklahoma. He was found dead in a creek bed, having been shot presumably by his associates.

And so by the time the case came down, Jack Miller was already off the scene. Quite a constitutional crusader, Jack Miller, even though he ended up losing his case. That's wild. So by ruling this way, the Supreme Court has said there's no way you can justify having that sawed off shotgun for gang activity or whatever is the same as being like in a well-regulated militia that's going to protect the state against a tyrannical government. We see no evidence of any of that. I think in Miller, it's fair to say that the court leans into the first clause, the part about the well-regulated

militia and saying this arm does not fall within that language. Like the sawed off shotgun in the hands of a bank robber is not the kind of arm that is protected by this provision, which refers to well-regulated militia. In its first true Second Amendment ruling, the Supreme Court seemed to suggest that the Second Amendment, in their eyes, is about a militia's right to bear arms,

not an individual's, like Jack Miller. But that would change. Coming up, how the last part of the Second Amendment, the phrase about the right of the people to keep and bear arms, how that would come to shape the terms of the political debate over guns in America. Hi, my name is Manjreen Safat. I'm from Williamsport, Pennsylvania, and you're listening to ThruLine from NPR. We just want to take a moment to shout out our ThruLine Plus subscribers. Thank you so much for your support. If you don't already know, subscribing to ThruLine Plus subscribers. Thank you so much for your support.

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and support our work here at NPR, head over to plus.npr.org slash ThruLine. The day started gray and rainy, but by mid-morning, it was sun and blue skies. A spring-like day in the middle of November. From Dallas-Lowe Field, the Dallas-Fort Worth area broadcasters bring you a special description of the arrival of President John F. Kennedy. With the sun beating down, President John F. Kennedy and his wife Jackie, pink suit, matching hat, ride with the top off their convertible. They're all smiles and eye contact with the cheering crowds in Dallas. A Dallas radio station was broadcasting the arrival live.

The presidential car has slowed down so that they may see and that he may wave to them. In the convertible, Nellie Connolly, the Texas governor's wife, leans over. Mr. President, she says, you certainly can't say that Dallas doesn't love you. And then, shots ring out. Disaster. President Kennedy has been assassinated. It's official now. The president is dead.

Two priests who were with President Kennedy say he is dead. Oh, my goodness. I think that's one of the most terrible calamities. You can't solve anything by killing. Duke Law professor Joseph Blocher says it's like dominoes. One high-profile assassination

followed by the next. There's the assassination of JFK in November 1963, assassination of Malcolm X in February of 1965. As I turned around quickly, and the next thing I saw was Malcolm falling back in a dead faint. Assassination of Martin Luther King Jr. in April of 1968. Fired a single shot, hitting his target squarely, and then he ran. And then of Robert Kennedy just a couple months later.

Senator Kennedy has been shot. Is that possible? Is that possible? It is possible. Not only Senator Kennedy. Oh, my God. Just after Bobby Kennedy's assassination, Lyndon Johnson says, let us now spell out our grief in constructive action. Lyndon Baines Johnson, LBJ, was a man who knew how to use crisis as opportunity. After JFK's death, he had called for the passage of a civil rights bill and gotten it. He used Martin Luther King Jr.'s assassination to push through the Fair

Housing Act. And now with the death of another Kennedy, Robert Kennedy, he saw an opportunity to act on an issue shaping the national conversation, guns. And it's all in response to the sort of like fear of sort of politicized violence and unrest. California lawmakers had just passed a law restricting the open carry of loaded firearms in an effort to disarm the Black Panther Party.

Also a massive influx in the availability of guns, a lot more guns imported throughout the 1960s. So there's kind of a general sense of like a perceived need for law and order that I think the Gun Control Act was sort of responding to. The Gun Control Act of 1968, signed into law by LBJ, was only the second major federal gun legislation since the one Jack Miller challenged 30 years earlier. And it did a few things. It banned shipping guns across state lines to individual buyers, prompted by the fact that Lee Harvey Oswald had killed President John F. Kennedy with the rifle purchased by mail. It also prohibited the sale of guns to certain groups of people. Minors, people with a history of mental health issues,

drug users, indicted and convicted felons. And Joseph Blocher says the regulations in the 1968 Gun Control Act, the GCA, they also set the stage for a certain group of gun owners to reshape the country's conversation about guns. And the major actor is the National Rifle Association, which was founded in the aftermath of the Civil War. It had been around for a long time. The NRA was actually originally founded by former Union soldiers to help Americans get better at shooting. When the Gun Control Act was passed, the then executive vice president,

which is the head of the NRA, a guy named Franklin Orth, wrote in the American Rifleman, which is the NRA's magazine, that the measure as a whole appears to be one that the sportsmen of America can live with. If you go back to the 1930s and the National Firearms Act,

the NRA president, a guy named Carl Frederick, who was a prize-winning shooter himself, great shot, testified before Congress saying, I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses. So that's NRA circa 1930 and even up to 1960. But you're starting to see that change. And that really explodes into the open in 1977 in a moment that's often referred to as the Cincinnati coup. The 1977 Cincinnati coup, or Cincinnati revolt, would change the NRA and America forever. Within the NRA, internal politics had split the organization into two camps. And tension between those two factions was coming to a head.

So what we have here is sort of two divisions within the NRA, which in some ways may represent like two different modes of American gun owner. The sort of old guard, I'll call it, in the NRA were focused mostly on recreation, hunting, marksmanship, responsible gun ownership, that kind of thing. But there's this new ascendant wing headed up by a guy named Harlan Carter, who the law professor Adam Winkler has brilliantly described as a blue-eyed, bald bulldog of a man who was the head of the lobbying arm of the NRA. And so Carter's job was really like, you know, opposing gun regulation, right? That's what he perceived the mission to be. You know, he himself was not just an accomplished shooter, but actually somebody who in his youth had shot and killed somebody. Allegedly in self-defense.

So he represents the sort of more self-defense wing, right? As opposed to the hunting and recreation wing. So in 1976, the NRA, the old guard is still in charge. They announced that they're going to like sell off the building that they own in the DC area and move to Colorado Springs, which I think captures pretty well the like, we're not going to be Beltway insiders. We're going to be focusing on that. So that's the plan, right? Then they have their annual meeting in 1977 in Cincinnati, and Carter and his allies took advantage brilliantly of the sort of organization's internal rules and staged a takeover. Like literally using walkie-talkies, coordinating on the floor of the annual meeting, voted out the old leadership and installed Carter and his allies.

So the sort of self-defense-focused wing took over that day. And it's sort of their successors that have sort of maintained control of the NRA in the 50 years since then. So that was the big pivot point, I think, in the sort of the NRA's focus. And how do they start to change the American public's view of gun control? There's a lot of things going on there, and only some of it can really be attributed to the NRA. There's a lot of other stuff going on with, you know, sort of like unrest and fear of crime and law and order frames. But one thing that the NRA did extraordinarily well and took a long time for the sort of gun violence prevention movement to even partially catch up was set up a ground game. So the NRA is not just a DC organization. There are local members. They enroll people who buy guns. So the NRA was kind of out there.

And when they hit the button saying, hey, you got to show up at your city council meeting, because they're talking about prohibiting guns in the parks, their members would show up, right? So they had a lot of money. That was one thing. The NRA did have money and put way more of it into campaigns than anybody on the other side. And really where they did well, I mean, they did well in D.C., but did so well at the state level, getting laws passed that made it, for example, virtually impossible in most cities today to pass gun laws because the NRA throughout the 1980s got states to adopt what are called preemption laws, which make it either impossible or difficult for cities to govern themselves when it comes to guns. At the same time, just as it's

getting harder to pass local laws restricting guns, you start to see people across the 60s, 70s, and 80s putting forward a new argument about the Second Amendment. That if the Second Amendment is a meal, the clause about the people's right to bear arms, that's not some little side dish to add on to the militia main course. No, the part about the people bearing arms, that's what it's all about. You certainly see an increase in the sort of this law and order rhetoric being used by politicians and sort of connecting that to sort of gun ownership and sort of like a, you know, sort of individualized self-defense. I'll say on the sort of, you know, outside of the market for guns, also see this real increase in sort of invocations of the Second

Amendment as an individual right. So in 1965, a guy named Robert Sprecher went on to be a federal judge, argued the Second Amendment should be understood to protect an individual right to keep and bear arms for self-defense, like not just the organized militia version, right? That was a big moment. Interesting. And so I guess another kind of moment here in the story is in the early 80s, I think a lot of people forget, like President Reagan was almost assassinated. Took a little bit about like that moment. And I'm guessing that must have been like also kind of like wake up call.

It was huge. And in ways that I don't think people could have predicted when it happened. I mean, just as you say, this is 1981. It's March, actually, of 1981. He's only been president, I think, for about 70 days. And a young man named John Hinckley, seeking to impress the actress Jodie Foster, tried to assassinate the president and actually did hit him with a bullet. President Reagan caught a bullet in the chest, a deflected bullet, but wasn't hurt nearly as much as his press secretary, a guy named James Brady, who was shot in the head. Now, Brady survived for a very long time, this injury,

and he, that is James Brady and his wife, Sarah Brady, became real leaders. If you have to point to, like, you know, who were the individual leaders of the gun violence prevention movement throughout the 80s, it's hard to think of another name than Brady. So, in the 1980s, you had the NRA on one side, pushing for fewer gun laws in the name of the Second Amendment's guarantee of individual rights. On the other side, you had the Bradys.

They were really focused on handguns. And the reason for that is, and this is still true today, that handguns are overwhelmingly the kind of gun used in gun crime. So, you know, the reporting and the stories that make the national news are often things that involve, you know, AR-15s, assault weapons, and so on, mass shootings, which are horrific when they happen, but account for about like 1% of gun deaths in any given year. The vast majority are handgun deaths, sort of one off, two off at a time. So that's what they were really focused on. And they had a variety of ways for doing that. I mean, the sort of signature piece of legislation also has the Brady name on it, the Brady Act. And what the Brady Act does is two really important things. One is that it expands the list of people who are prohibited from having

guns under federal law. And then it created a mechanism to make it harder for those people to get guns. And that mechanism is the system of background checks, supported by, although he's no longer president, supported by Ronald Reagan, who gave remarks and said, you know I'm a member of the NRA, but I support the Brady Act and you should pass it into law. It was signed into law by President Clinton. So now, if you buy a gun from a federally licensed dealer, they have to do a background check on you to ensure that you are not one of those prohibited people. So let me take a step back. Today, it feels like the idea that an individual has an inalienable, some kind of inalienable right to own a gun, and that like is handed down to us by framers, and like that idea that it's some kind of inalienable right to own a gun. And that like, it was handed down to us by framers.

And like that idea that it's some kind of religious sacred, right? It feels like it's just always been there for the NRA and for the pro kind of gun rights side. But you have Reagan personally, who was an NRA member saying, no, no, we need some regulations here. We need some ways to, practical ways to limit who can have a gun and in what context, right? When does that, or is there a moment we can point to where you can say, okay, now things shift into

guns are the right of every individual and that the Second Amendment should be interpreted that way? Yeah, you certainly see a huge rise in that sort of absolutist rhetoric. You could trace it to the Cincinnati coup as far as the NRA is concerned. That's really when the NRA starts using a lot more of the kind of absolutist rhetoric. You could trace it to the Cincinnati coup, as far as the NRA is concerned. That's really when the NRA starts using a lot more of the kind of absolutist rhetoric, like all forms of gun regulation are unconstitutional. What part of shall not be infringed? Don't you understand? And so on. And you see politicians saying similar

stuff that like, you know, as long as I'm in office, we're not going to have any kind of gun regulation. It's tough to separate the sort of rhetoric from what people actually believe in support, though. Like, those voices are really, really loud. But if you ask, like, more specific questions, like, if we go back to the Brady Act, right, do you support background checks? 90% of Americans are on board with that. 74% of NRA members are on board with that. Like, there's lots of things that people can still find agreement on. Like, people believe in both that there is an individual right to keep and bear arms and that it is subject to various forms of reasonable gun regulation,

which is exactly what we see in the legal tradition all the way back to 1791. It's just that that kind of overlap of like, yes, there's a right and it's subject to regulation, kind of gets drowned out. Coming up, how the Supreme Court gets involved with the Second Amendment and changes everything. Hey, this is MJ from Vancouver, and you're listening to ThruLine on NPR. In the early 2000s, Robert Levy, a rich libertarian lawyer, set out to remake America. A member of the libertarian think tank, the Cato Institute, he was on a mission with a few other libertarian lawyers to create and single-handedly finance a case

that would fundamentally alter our country's gun laws. My interest was plainly to vindicate the meaning of the Second Amendment and the right secured by the Second Amendment. This is Levy speaking to NPR in 2008. He wanted the Supreme Court to say the Second Amendment applied to people's individual right to bear arms for self-defense at home, not just a malicious. So would-be victims could fight off would-be assailants with guns. This is about possessing an ordinary garden-variety firearm

for self-defense within the home. What Levy needed was a case to get the Second Amendment in front of the Supreme Court. Levy's team set their sights on challenging a Washington, D.C. law that banned handguns. He vetted people who wanted to change the law and put together a small group which included a man named Dick Heller, a security guard who wanted a handgun at home for self-defense. By 2008, that case had worked its way up to the Supreme Court.

The case would become known as D.C. v. Heller, or as people in legal circles, like Duke Law School's Joseph Blocher, call it, just Heller. Heller was the court's really first in-depth engagement with the Second Amendment. Like, this is where the court was really going to, for the first time,

say something about what the Second Amendment really means. And that sort of central question, I guess, before the court was really going to, for the first time, say something about what the Second Amendment really means. And that sort of central question, I guess, before the court was, is this about the militias or is this about an individual right to keep and bear arms for self-defense? Like if you have to say there's one question in Heller, that's the question. And in a splintered, I think it's fair to say, divided rather, five to four decision, authored, the majority opinion authored by Justice Antonin Scalia. The court says it is not, the right is not limited to the organized militia. It does encompass at least some right to have some weapons for self-defense, at least in the home. Opinion of the court held, the second amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes. So Dick Heller wins this case.

But, and this is really, really important, so now this gets overlooked, the court also says that right, like all constitutional rights, is subject to regulation. And the court actually lists a bunch of regulations which it suggests are presumptively okay. The court's opinion should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings. Joseph saw all of this play out from close up. He was one of the lawyers involved in the case himself. I, as a very junior associate at a one of the lawyers involved in the case himself. I, as a very junior associate at a law firm there, helped brief the case for the District of Columbia, the losing side in the case, of course. Robert Levy, the Cato Institute lawyer who'd financed the entire thing and made Dick Heller

the face of the lawsuit, he was the lawyer on the other side, the winning one. In an op-ed celebrating a decision that said the Second Amendment protected an individual's right to own a gun for self-defense, Levy suggested that the ruling came down not just due to legal arguments, but due to who was on the court. It conveys a crucial message, he wrote. Judicial nominations matter. The court made one thing clear, that the Second Amendment protects a citizen's right to bear arms for self-defense. But that doesn't mean the government can't regulate guns at all.

By the time Heller was decided, three-quarters of Americans had already come around to adopting, to believing in, the individual rights view that the court ultimately endorses. It seems like there's no cases for a very long time. And there's one in 2008. And then a few other ones come after that. So what's the next one after Heller? So the court is bombarded with people asking the court to hear Second Amendment cases for a decade. There's a lot of activity happening in the lower courts, more than a thousand cases in the 10 years after Heller. and the justices are just staying out of it. Like, we're just going to let the lower courts figure this out, right? But there's this alternative methodology that's kind of starting to bubble up through the lower courts. It's starting to appear

in dissenting opinions by some really prominent judges, including then-Judge Brett Kavanaugh, when he was sitting on the D.C. Circuit Court of Appeals. Yeah, and what then-Judge Kavanaugh and others said is like, we shouldn't be evaluating the effectiveness of the laws or what the government says its reasons are. Kavanaugh proposed using three criteria for guidance, text, history, and tradition. And when the court finally got around

to doing another big Second Amendment case, it was in 2022 in a case called New York State Rifle and Pistol Association versus Bruin. The court said that the only thing that matters when you're evaluating a modern gun law is whether it is consistent with this nation's history of weapons regulation. That's the test from now on. Wow. So this starts to become about interpretations of history, but that's so subjective. Like, everyone looks at it differently, what the history of gun regulation is.

And because it's this complicated kaleidoscope, essentially, of all these different multi-layered regulation regimes, state, federal, et cetera, that seems to me to be like a very dangerous approach if you're trying to look for some kind of consistency. I think it is very – to say it generously, I think it is underspecified, a lawyer might say. It is really, really tough to know what actually are the principles of relevant similarity to be able to compare, let's say, the modern gun law that prohibits loaded weapons in an airplane cabin.

Like what are you possibly looking at from 1791 as an analogous regulation? Like, of course, they didn't have airplanes. They didn't even have mass transit. Like, there's nothing you would, it's so hard to know what the actual thing is you're supposed to look at. It's hard enough to find all these historical sources, right? Like, they don't just exist in some library somewhere where you go find, okay, here's the gun restrictions that had to do with, you know, carrying guns in schools. Like, no, that's shoe leather type work. Even once you found them, it's tough to draw meaningful comparisons. And partly that's because society's changed so much. It's just a technological thing that guns have changed so much. And you see that in the, you know, what we know of homicide in 1791. People didn't use guns to commit homicide as they do today, precisely because it took 60 seconds to load a weapon and it, you know, might not even fire once you do, right? So the whole world looked different. Yeah, you know, that's what's trippy about this for me is, you know, the tagline of

our show is we go into the past to understand the present present and we use history in order to kind of understand our world today and that's kind of what uh bruin is telling the court to do in some extent but i don't know just to be honest it makes me feel weird because i've interviewed hundreds of of historians by at this point and the one thing i've realized is like they don't agree on anything you could have two or three historians looking at the same event and they may disagree about basic facts, you know, down to like how many people died in the Battle of Waterloo. And what does that have to do with like Napoleon's kind of strategy, his last few years, his military strategy? This is worrisome to me, even as a history person, that we would allow this interpretation of historical precedence to drive the decision making about what's happening today at this level because the interpretation of that history is so subjective for even people who would self-identify as originalists, that is people who believe that in a meaningful way the meaning of the Constitution was set at the time of its ratification. Even for people who really feel strongly about that proposition, it's still tough to try to find meaningful guidance for modern gun laws in 1791. Because like, okay, the framing generation didn't tell us anything specifically

about whether you can keep guns off the subway. They didn't know anything about the subway, but they did, you know, prohibit guns in these other places that are like subways. And then all the work is being done by the, are like subways point, which is not really history or not. Like that's just, that's just what it's kind of, I know it when I see it. Like I, for some people it feels intuitive and some people it doesn't. Like some people feel black powder muskets are intuitively similar to AR-15s. Some people think they're totally different. I have fired both those weapons, I'll say.

To me, they feel very, very, very different. But they're both expelling a projectile at high speed down a steel – I mean down metal, rather, down a metal cylinder. I mean in that way, it's like they're still firearms. In 1994, President Bill Clinton signed into law an act that, among other things, made it illegal for people subject to domestic violence restraining orders to own guns. The way that society has changed in terms of the lives it protects and values has changed so much. So, and this is kind of leading into the next big case the Supreme Court's currently considering, right? Like we now, as of the 1990s, have federal laws that restrict gun possession by people who've committed domestic violence crimes, even if

they're not felonies, or who are subject to certain qualifying domestic violence restraining orders. Those laws did not exist in 1791, right? There were some restrictions on domestic violence, but they weren't taking away guns from domestic abusers. And you hinted at it here, but what is the case? The case is called United States versus Rahimi. It involves a guy named Zaki Rahimi, who was subject to a domestic violence restraining order based on having abused his partner. He consented to the order. He said, okay, I won't have a gun. Police found in his possession a gun and a copy of the order saying,

you're not allowed to have any guns. So Rahimi's lawyer, you know, did the right thing for a public defender to do and said this violates his constitutional right to have a gun. This is unconstitutional under the Bruin test that the Supreme Court announced because there is no historical tradition

of disarming people like my client, like Zaki Rahimi. An appeals court agreed. The court said the government couldn't point to a similar historical law. So denying someone their Second Amendment right, even if they'd been subject to a restraining order, was unconstitutional. So the government appealed the case up to the Supreme Court.

The justices heard oral arguments in November and are expected to rule on the case later this year. Why would anyone argue that somebody who had a legitimate claim of domestic violence against them, why should they have a gun? What's the argument for someone like that having a gun? I mean, I think most people who defend Rahimi's position, and here I should say that I filed a brief in support of the government side here. I think that Rahimi should lose this case. But those who support Rahimi's side, I think would say like, you know, constitutional crusaders sometimes are not the best people, right? Sometimes it's the Nazis wanting to march in Skokie and invoking the First Amendment. A lot of the criminal procedure rights that we have recognized in Supreme Court cases, which are very important, involve people who've done horrible things. And so it's not a question really is like,

is Zachary Rahimi a good enough guy? Should he have a gun or not? It's the principle of the thing, if you like, which is true for most constitutional rights. Any way you look at it, Zachary Rahimi allegedly did a bunch of really dangerous, terrible things, beating his girlfriend in a parking lot, shooting at someone who saw him doing that. Shooting in the air when a fast food restaurant denied his friend's credit card. And other threatening and shooting-related activities. But his case has become a test for when the government can limit someone's rights. Is a domestic violence restraining order against someone like Zaki Rahimi enough to no longer be protected by

all of the constitution? Or is he like the Nazis in Skokie, not model citizens, but people still given full constitutional rights, free speech for the Nazis, gun ownership for Rahimi? Rahimi and his lawyers say the law limiting his right to own a gun is unconstitutional. The government says no For the average listener who doesn't have that much background on the case or the context of the case, what should they be looking for in terms of the ruling of this case in either direction? So if they rule on behalf of Rahimi or on behalf of the government's argument, can you talk about what the important things are for listeners to look out for in those rulings? Either option. Again, Bruin says the only kind of gun laws that are constitutional are those that are consistent with this nation's tradition of gun regulation, right? So I think what most of us are

hoping for is some more guidance. Like, what do you mean about, you know, that things have to be analogous to historical regulations? Are you supposed to bring in historians as experts? Like, give us some more guidance. Because you can always play these kind of levels of generality games to kind of get to whatever answer you want. With the Bruin ruling, the court essentially said any gun law today must resemble a gun law from the 17 and 1800s in order to be constitutional.

With the Rahimi case, the Supreme Court has the chance to clarify what that actually means in practice. And it means invoking and dealing with like some really, really sordid history like we talked about before. Like there's plenty of history to support the fact that, and here I'm quoting from an opinion that then-Judge Amy Coney Barrett wrote, that, you know, history is consistent with common sense. It shows that legislatures have the power to disarm dangerous people. The historical record she's pointing to is the one that we started with, which is disarming Black Americans, Native Americans, Catholics, loyalists, right? That's a real awkward set of precedents to be reasoning from when what we're trying to do today with the law that's being challenged here

is protect people, especially women, from intimate partner violence. How does the way the Supreme Court has ruled on gun regulation reflect generally the court's mindset beyond the Second Amendment? Does it reflect the kind of evolution or change in just the way the Supreme Court is looking at interpretation of laws vis-a-vis the Constitution? I think it absolutely does. I mean, District of Columbia v. Heller, when it was decided in 2008, I think could be and was, by many originalists, called the leading example of originalism ever adopted in a majority Supreme Court decision. And that has since been eclipsed many times over in Second Amendment cases, and now we're seeing certainly in other areas as well.

The reason I think the Second Amendment is such an important bellwether, I guess, for that is that because it is an area where there is very little precedent from the Supreme Court, the court is kind of writing on a pretty close to blank slate. So in the free speech cases, the court is trying to recategorize a lot of its old doctrine as being originalist. But the Second Amendment is in its current form, basically 15 years old. Like Heller is sort of the beginning of the modern Second Amendment. And so it's maybe a little more of a clear window into the justices sort of thinking about this movement to interpret the Constitution in line with historical sources rather than approaches that look more to this week's show.

I'm Randa Abdel-Fattah. I'm Ramteen Arablui. And you've been listening to ThruLine from NPR. This episode was produced by me. And me and... Lawrence Wu. Julie Kane. Anya Steinberg.

Casey Miner. Christina Kim. Devin Katayama. Peter Balanon Rosen. Thomas. Fact-checking for this episode was done by Kevin Vocal. Thanks to Peter Balanon-Rosen for his voiceover work. And thanks to Colin Campbell. This episode was mixed by Gilly Moon. Music for this episode was composed by Ramtin and his band, Drop Electric, which includes Anya Mizani, Naveed Marvi, Sho Fujiwara. And finally, we're working on an episode about the history of modern love. Tell us what romantic love means to you

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