Today, Explained - Let’s untangle the Second Amendment

Episode Date: June 14, 2022

It wasn’t until 2008 that the US Supreme Court established what a confusing sentence in the Constitution really meant for gun ownership. Sean Rameswaram reported on District of Columbia v. Heller for Radiolab’s More Perfect. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Noelle, you got a second? Yeah. Great, because I want to read you what I think is the most confusing sentence in the history of this country. Hit me. 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, period. It's a lot of commas. So many commas, a few subjects, finally a period.

This Second Amendment of ours, the root of this entire gun rights versus gun control debate, it's a doozy, Noel. And you specifically asked if we could untangle it as it pertains to the big Supreme Court case on the Second Amendment, District of Columbia v. Heller. Yeah, I wanted to know who Heller is. That's what we're going to do on Today Explained. Nice. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit

superstore.ca to get started. All right, today explained. I'm Sean Ramos-Firm. And before I worked here at Vox, I worked at WNYC in New York, where I worked on a show called More Perfect in collaboration with the good people at Radiolab. If you haven't heard of the show, you're missing out and there's strong signs you should subscribe now and keep an eye on that feed. Anyway, one of the stories I did for More Perfect was about the Second Amendment. It was titled The Gun Show, and we're going to play you a chunk of it on Today Explained right now. This is the chapter about District of Columbia v. Heller, the case in 2008 where the Supreme Court tried to explain to the country what the heck the Second Amendment meant for individuals, for everyday gun ownership. To report the story, back in 2017, I met up with the case's namesake. Dick? Are you Sean?

I am. That's me. Great to meet you. And you. Dick Heller. What does your hat say? Sean, this is my favorite hat. Make America free again with a big Western handgun in the center.

And it looks like you drew a trigger out there. Is that what you did? Well, it was missing a trigger, so we had to update it. Who's we? Me. Okay. I met Dick right outside the Supreme Court, the building where he became famous.

He's a slim, 75-year-old white guy, sports glasses that look straight out of the 70s. Got a situation here, you wanna cross? Sure, what's the situation? The anti-Trump protesters are here. I actually happened to meet him in DC the day after Trump won the election. They hate freedom apparently. The president-elect was visiting the White House. There were protesters everywhere.

Pull out your knife. Not my president. They're anti-Trump protesters. Don't you like freedom? What about freedom? What about freedom? Most of the protesters that were passing us were white, but just as a few young black men pass us by, he says,

See you on the plantation. Love Trump's hate. Freedom. Make America drop again. Freedom. See you on the plantation. Yeah. Why'd you say that?

In Washington, we call it the government plantation. You didn't mean you kids are about to be slaves or something, because that's how I interpreted it. Well, yeah. The more power government has, the less freedom you have, the closer you get to ball and chain of a plantation. There's a pretty good place to eat right there there if you're here for a couple of days. Have you been in there? I have not. Yeah, pretty good.

Okay, Hyatt Regency, this is good for you? We can do this? Sure, yeah. Great. We ended up talking at the Hyatt, which is just down the street from the Supreme Court, and Dick explained to me that his journey with guns began pretty casually, like 1976, he's living in D.C. and one day he's sitting at home.

I was watching my hero, Matt Dillon, gun smoke. Different Matt Dillon. And he had this long barreled handgun. I was about 30 years old and I figured, golly, I should own my first gun. So I went and bought what I call my Matt Dillon Special. High standard.22 revolver Matt Dillon bunt line. And it was just, I live in America. We're a cowboy society.

I should have a cowboy gun. It was just nothing, no really deep thought to it. But then just a few months after he got that gun... In October of 1976, D.C. gun control regulations outlawed firearms ownership. You get that gun law, which outlawed all handguns. So I had some choices. I could turn it into the government. Not going to happen. I can throw it in the dipsty dumpster. Not going to happen. Or there was another option. I could go to jail. Not going to happen.

Eventually, he decides on option D, give the gun to his brother. Well, my brother lived in Maryland, so that made it very convenient. Did you just go visit your gun in Maryland? What did you do? Yes, I would go visit and caress and use my gun. What did you use it for? Target practice, of course. Dick made his gun visitation situation sound functional, but I think like any long distance relationship, it mostly sucked because more and more he didn't feel safe where he lived. I lived about 10 blocks from the Capitol building, right across the street from the number one most infamous drug dealer den in the city called Kentucky Courts. Every night at 2 a.m., the chief drug dealer would fire a nine millimeter

into the air, empty the clip, and that was the signal every night at 2 o'clock that drug dealing was over for the day. It's clear that living through the crack epidemic in D.C. really shaped a lot of Dick's views on guns. So, in the years after the handgun ban, Dick starts the very long process of finding a way to get his gun back to D.C. And he eventually even quits his desk job to pursue getting his gun back full time. I'm all over Capitol Hill and I see security guards have guns. Well, golly, why can't I be a security guard?

Golly, maybe that would help me have a gun that I can't have on my own. Golly, let's see how easy or not easy this is. Golly, one step leads to another. Golly, just like that. Dick was able to have a gun in D.C., but only during the day and only while he was working. Like Barney Fife, at the end of my shift, I have to turn in my gun and my bullet. And they kept it there. And they kept it on site in the safe, yes.

He finally starts looking for some help, some legal help. I knew Washington because I'd lived here and I'd gone to some think tanks, Cato and Heritage and some others. I knew they existed. And right around the time Dick's out there looking for some help, turns out these lawyers are out there looking for some Dick. No, no. He wasn't their ideal sympathetic guy. I was told repeatedly, and it was in print, that I was the worst choice. Was less than optimal. You know, because of that plantation thing he said, or he would always talk smack about the federal government in interviews. One day, Clark Neely put a note in my hand and said, Dick Heller, this is what you say.

I just wanted a gun to protect my house. Shut up. So he wasn't their favorite plaintiff, but... Dick did one thing that no one else had done, which is besides just wanting an illegal handgun in D.C., he actually filled out an application to register a gun that he already possessed, again in Virginia, and had that application denied. And he had this denial slip, or whatever it's called. He literally had this physical proof of his grievance. And this simple, technical, arbitrary, little stupid piece of paper gave him what's known as standing to bring the case.

Dick Heller ended up being kind of the last man standing. That was nothing to do, that was not our choice. Regardless, he became their guy, and these three lawyers, they take the case to the D.C. court. And the judge, after inspecting it, said, the case can go forward. Magic moment. This magic moment. The Supreme Court is entering the debate over the Second Amendment right to bear arms. Today's case has aroused huge interest among citizens and politicians alike,

and it has divided even the president and vice president. March 18, 2008. The day the Heller case was argued at the Supreme Court, everyone understood how high the stakes were. We all agree it is the people... Outside, in front of the Supreme Court, protesters by the hundreds were marching and... ...chanting in favor of gun rights and in favor of gun control.

Journalists from all over the world descended upon the Supreme Court that day. And inside the Supreme Courthouse... We will hear argument today in case 07290, District of Columbia versus Heller. This was the first time in our history the Supreme Court would directly try to figure out what the Second Amendment means. Mr. Dellinger. And immediately... Good morning, Mr. Chief Justice. It may please the court.

D.C.'s lawyer, Walter Dellinger, gets up and jumps right into it. And he sort of begins with a central question, like, what was James Madison thinking when he wrote this super confusing sentence like 200 years ago? Was he thinking about the individual people and their right to own a gun? Or was he thinking about the collective right of the militia to own a gun? And the first text to consider is the phrase protecting a right to keep and bear arms. And he says if you look at the phrase, how it was used at the time. Every person who used the phrase bear arms used it to refer to the use of arms in connection with militia service. Dellinger says that if you look at some of Madison's rough drafts of the Second Amendment, it's pretty clear that when he says people have a right to bear arms, all he really means is, like, report for duty.

Even if the language of keeping and bearing arms were ambiguous, the Amendment's first clause confirms that the right is militia-related. It's essential meaning. If you're right, Mr. Dellinger. Chief Justice Roberts jumps in like, whoa, whoa, whoa, whoa, whoa, whoa. Why would they say the right of the people to keep arms? They meant just the people in the state militias. Why wouldn't they say state militias have the right to keep arms? Mr. Chief Justice, I believe that the phrase the people and the phrase the militia were really in sync with each other.

The Federalist Farmer uses the phrase the people are the militia, the militia are the people. If that's right, doesn't that cut against you? If the militia included all the people, it includes all the people. Yes, I do believe it includes all the people. At this point, everyone sort of jumps in. A bunch of justices start interrupting each other. It's kind of like a scrum. And they're all trying to figure out,

okay, so when Madison wrote the phrase, like, who were the people he was talking about? Thinking of the people, what those words meant. Was the people just the militia or everyone, all the people? What is the relationship between the second part of the sentence, the people part, and the first part of the sentence, the militia part? They go into like, common law, Scottish Highlanders for some reason. At one point, they even sort of start to diagram Madison's sentence. And think as this court...

And the net result, according to Adam Winkler, was the four liberals... Stevens, Souter, Breyer, Ginsburg... seemed to want to emphasize the militia part of the sentence. And then you had the four conservative justices... Scalia, Thomas, Alito, Roberts... who seemed to want to emphasize the people part of the sentence, the second part. I don't see how there's any contradiction. And Team People's team captain, the quarterback, the first chair that day was, without a doubt, Justice Antonin Scalia.

Why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias but by taking away the people's weapons what you hear throughout the arguments is that Scalia is very very forwardly pressing this sort of individual rights argument speaks of the right of the people and justices like David Souter are arguing back saying what about the the collective, the militia? This goes on for well over an hour. The justices sort of grilling the lawyers, arguing amongst themselves, everybody trying to figure out what was in James Madison's head. Until finally, Justice Breyer, one of the liberal justices, is like, hold the phone.

Forget what Madison intended. There is no way for us to know. Let's talk about now. Let's talk about gun violence. This sentence was most definitely written about muskets. What about handguns and assault rifles? What is reasonable now? 80 to 100,000 people every year in the United States are either killed or wounded in gun-related homicides or crimes or accidents or suicides, but suicides are more questionable. That's why I say 80 to 100,000.

Now, in light of that, why isn't a ban on handguns a reasonable or a proportionate response on behalf of the District of Columbia? Because, Your Honor, for the same reason that was offered by numerous military officers at the highest levels of the U.S. military at all branches of service, writing in two briefs, they agree with us that the handgun ban serves to weaken America's military preparedness because... Alan Gura basically argues when you take away people's guns, they're going to be less prepared if and when they enlist in the army. To which Justice Breyer's like, they can still practice shooting.

...with their rifles? Which weren't banned in DC. They can go to gun ranges, I guess, in neighboring states. But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say to keep us ready for the draft, if necessary? Is it unreasonable for a city with that high crime rate to say no handguns here? You want to say yes, that's your answer. Well, you want to say yes, that's correct. But I want to hear what the reasoning is, because there's a big crime problem. I'm simply getting you to

focus on that. That, by the way, was Justice Scalia telling Alan Gura how to answer Justice Breyer's question. The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of the individual right because proficiency with handguns... Anyway, the oral arguments last 97 minutes, far longer than most other cases, and going into the arguments, many Supreme Court watchers figured the case would be a close 5-4 decision, and it could go either way. And as with all of these close cases, the question was, what would Anthony Kennedy, the swing justice, do? As in so many issues in America, it comes down to what does Anthony Kennedy believe?

So at the oral argument, and I had the good fortune to be at the oral argument in the Heller case, everyone was looking to hear what would he say about the Second Amendment. His was really the vote that counted. And the very first comment he made... It had nothing to do with the concern of this remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that. One of the first things he said was about bears. Like, not bear arms, but grizzly bears. And the point Kennedy was trying to make was clear. Don't you think the framers had other reasons that they wanted people to have guns other than just being in a militia?

Like, what about people being in their homes and just needing to defend themselves? And that's when I silently screamed at the top of my lungs so nobody could hear me, Yes, we win! Dot, dot, dot, something. The decision and what it means in a minute on More Perfect on Today Explained. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family. And Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter.

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If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. We're back. Today Explained featuring more perfect. When we left off, we were about to get a decision in the big Second Amendment case at the Supreme Court.

District of Columbia v. Heller. We return now to the historic Supreme Court decision handed down this morning. Justice Scalia has our opinion this morning in case 07290, District of Columbia v. Heller. 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. It was a groundbreaking reading of the Second Amendment. Scalia minimized that clause referring to a well-regulated militia and put the stress on the second clause that referred to the right of the people. The people will not be deprived of the right to keep and bear arms. This was as good as it got for him on the bench.

I think so. R.I.P. the Militia Clause, December 15, 1791 to June 26, 2008. A pretty good run, if I'm being honest. For the first time in the history of these United States, the courts definitively declared that the Second Amendment gives every American the right to a gun for self-defense. It was a great day for freedom in America. It was a great day for freedom in America. It was a great day for the Constitution. A great day for citizens.

It was a great day for gun owners. It was a great day for fearful people. Of course, not everyone agreed. I mean, to me, that's a travesty. This is Jack Rakove. Professor of history and political science at Stanford University. He filed a brief for the court, and he says Scalia's reading of the history is just wrong. The Second Amendment was not about individual right.

You could argue that we shouldn't even be talking about history. Because the nature of firearms has changed so radically from the 18th century to our own time. And that ultimately... I think it's all politics, to be honest. I mean, I don't really believe in constitutional law anymore. I think constitutional law is a fiction. You know, it's become so highly politicized in so many areas. I think constitutional law is bunk.

Wow. I just, you know, I'm a historian. I'm not a lawyer, so I don't have any professional stake in defending the judiciary. But there's a very big but. He did have a major caveat. The next section of our opinion points out that like most rights, the Second Amendment right is not unlimited. He said, like all rights, it's not absolute.

It is not a right to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose. Which is very important to keep in mind. Our 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. This is another thing that we tend to forget. The decision says every individual has a right to bear arms,

but most interestingly, the decision also says, of course we need gun control. The word heller has come to represent Second Amendment rights. Are you for heller or are you against heller? Even though being for heller is being for gun control. That's confusing. Yeah, it is. I mean, after all this time, it's still just totally confusing.

You have a right to a gun, but the government has a right to regulate it. Dick Heller gets his gun back in D.C., but D.C. still also has all sorts of gun regulations. And you see the same pattern all over the country. Some states are lenient, some are super strict, and both approaches seem to comply with Heller. In a way, the Heller decision is just like all those commas and clauses that we started with in James Madison's sentence. It's this confusing declaration that leaves the door wide open for interpretation.

Which obviously sucks. We could have used a little more clarity on how to live with this Second Amendment right to bear arms. But that door being open, it gives us an opportunity, I think. The opportunity to get it right, to fix it. And it seems like now would be a pretty good time. You just heard an excerpt of a more perfect episode

titled The Gun Show I made with a whole lot of help from a whole lot of people back in 2017. Find the full episode in the More Perfect feed and keep an eye on that feed. Thanks to Susie Lechtenberg and Julia Longoria at WNYC and Jillian Weinberger here at Vox for their help with this re-podcast. I'm Sean Romsferm. It's Today Explained. Tomorrow on the show, we're going to look at gun policies across the country and try and figure out what kinds of laws can make a difference in this moment.