I’m joined by Erin Murphy and Amy Swearer to discuss our Second Amendment rights and the current attacks on our rights. Do so-called gun control regulations have a greater impact on a woman’s right to self-defense?
Erin Murphy is a partner in the Washington, D.C., office of Kirkland & Ellis LLP. Her practice focuses on Supreme Court, appellate, and constitutional litigation. She has argued before both the Supreme Court and most of the federal courts of appeals on a wide variety of issues, including the scope of the First Amendment, the Takings Clause, the Federal Power Act, the Appointments Clause, and the National Labor Relations Act. Erin has also argued several appeals defending Second Amendment rights, including the appeal that produced the opinion the Supreme Court granted certiorari to review in New York State Rifle & Pistol Association Inc. v. City of New York. Erin has been recognized by the National Law Journal as one of the nation’s “Outstanding Women Lawyers” and a “Rising Star” and has been ranked by Chambers & Partners as one of the nation’s top appellate lawyers.
Amy Swearer is a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.
MENTIONED
Opinion: Second Amendment history is Black American history (cincinnati.com)
TRANSCRIPT
Gayle Trotter
Welcome to the Second Amendment Clubhouse. I’m so glad that you could be here and join us today. We’re just waiting for our two guests to join us. Let me tell you a little bit about myself. I am Gayle Trotter. I’m a liberty-loving, tyranny-hating lawyer based in Washington D.C.. My goal is to keep you informed and to be your advocate in Washington D.C. I see that Erin Murphy has joined us. Welcome, Erin.
Erin Murphy
Thank you.
GT
We’re just waiting for Amy to join us. I’m just giving a little background about myself before I introduce you and Amy.
EM
Okay.
GT
If you are interested in learning about the Bill of Rights, issues of political importance, controversial national debates, then feel free to subscribe to my YouTube Channel, Right in D.C. The Gayle Trotter Show. I try to keep you up to date on all the things going on in Washington D.C. that percolate out to the rest of the country.
I am so delighted that we have our two guests today. Erin and Amy. I think Amy might be joining us a little bit later because she is actually giving another talk on the Second Amendment right now for the Federalist Society. I actually see now Amy has joined us. Welcome, Amy. I am not sure she can get in. Here we go. I invited her to speak. So let’s see if Amy can join us. Amy, can you hear us? Let me see if I can add her another way. Oh, here we go. Amy!
Amy Swearer
What about now?
GT
I can hear you now. Can you hear us?
AS
I can. Excellent. I have no idea how this app works or if there’s a video component, if I’m doing this right. Hopefully, I’ve figured it out now.
GT
I am so delighted that you and Erin could join me. This is only the second clubhouse that I have sponsored. Like you, I’m learning about this new app, but I have heard that a lot of people are really excited about it and getting so much information about it. I felt like it’s so important to go out there and talk about the Second Amendment and our important rights under the Bill of Rights wherever people will listen to us, so I’m so delighted. We’re all going to learn this together, I think.
Let me introduce to you our two women who are legal experts on policy and the Second Amendment. Let me start with Erin. Erin Murphy is a partner in the Washington D.C. office of Kirkland & Ellis. Her practice focuses on the Supreme Court appellate and constitutional litigation. She has argued before both the Supreme Court and most of the Federal Courts of Appeals on a wide variety of issues including the scope of the First Amendment, which was our discussion last week, The Takings Clause, The Federal Power Act, the Appointments Clause, and the National Labor Relations Act. Erin has also argued several appeals defending Second Amendment rights, including the appeal that produced the opinion the Supreme Court granted cert to, review in New York State Rifle and Pistol Association, Inc. vs. the City of New York. Erin has been recognized by the National Law Journal as one of the nation’s outstanding women lawyers and a rising star and has been ranked by Chambers and Partners as one of the nation’s top appellate lawyers. Erin, thank you so much for joining us this evening.
EM
My pleasure. Looking forward to talking a little Second Amendment.
GT
Let me introduce Amy. She is a legal fellow in the Meese Center for legal and judicial studies at the Heritage Foundation. You all might be familiar with the Heritage Foundation. It is the conservative think tank that sits right on Capitol Hill. A lot of lawmakers rely on the Heritage Foundation to inform the bill writing process and it is a very, very powerful organization advocating for our rights and for people across the country. Amy, thank you so much for joining us tonight.
AS
Thank you so much for having me. Talking about the Second Amendment is one of my favorite things, and to be here with you and with Erin; I’m absolutely ecstatic.
GT
Just to give you a little bit about my background with the Second Amendment, I am also a lawyer. I’m in private practice, but I also do political commentary and I was writing a lot of op-eds about the Second Amendment and how it disproportionately affects women to have more gun regulations and so-called “gun control legislation” because over 90 percent of violent crime happens without a firearm being present. In those circumstances, guns help women reverse the balance of power, and I was called by the Senate Republicans in the wake of the Newtown tragedy, when Congress held its first hearing on gun violence. You might remember this was during January of 2013 when President Obama was pushing for much stricter gun control laws. I was able to testify before the Senate Judiciary Committee about how gun laws disproportionately affect women.
That’s why I was really excited to have Erin and Amy join us tonight to talk about this particular aspect of it. But, of course, it has meaning for all law-abiding citizens across the country, and I feel like the past is the prologue. We’re seeing the same thing happen with the Biden Administration that we saw happen with the Obama Administration. I’m going to start with Erin. Could you give us a little background on your interest and your experience on the Second Amendment?
EM
Sure. I really came to the Second Amendment through the lens of being a lawyer because I really first started doing some work on it at one of the firms I was at several years ago . I’ve been at a few since, but my law partner, Paul Clement, he argued at the time, as the Solicitor General in the Seminole Heller case, and then also argued that City of Chicago vs. McDonald case. So we continued doing some work after that at the firm that we were at when I went to work with him. Early on, I worked on an amicus brief for the NRA about, basically, some questions that were left open after those cases about the standard of review for reviewing memoirs. That was the first case that I ever was involved in, just writing an amicus, a friend of the court, brief about what we thought the right standard should be.
Over the years since then, I’ve just done increasingly more work on the issue. We can talk about some of the various different cases and issues I’ve worked on over the years, but we’ve stayed very active in this space and kind of had a chance to argue. I specialize in doing appellate arguments. A lot of times cases when they get to the Courts of Appeals and then filing lots of, unfortunately many of them unsuccessful cert petitions, because the Supreme Court seems to not want to take all these cases very often. We had success with one of them, and we’ve got another one pending right now. So most of my work, I’ve really learned so much about it and the capacity of just doing cases — you know what’s fun about doing Second Amendment work is it’s — up until Heller for a long time, the didn’t really, most of them, and the Supreme Court wasn’t really recognizing the Second Amendment right as an individual right. Unlike with so many constitutional rights that have been established for a long time and that have a lot of case law around them, you’re really often dealing with issues on a bit of a blank slate and learning about the history and the first instance, and looking at how did the framers understand this? How did people understand this right back in England and the colonies in the 1800s? Getting to do a lot of just really interesting constitutional work and historical work from that perspective because so many of these issues really didn’t come up and start getting resolved until the past decade. It’s been a lot of fun and really interesting stuff to work on.
GT
Two things jump out at me from what you shared, Erin. The idea that when these laws are challenged and they go to the courts, you take them up as a lawyer, but it’s hard once these laws are passed to get the courts to hear the cases, to get them to give the right results. You mentioned about your partner, Paul Clement, who was Solicitor General, and ultimately worked on the McDonald case which had to do with gun regulations in the city of Chicago, in the state of Illinois. I’m going to link to this really great op-ed by this woman talking about how gun control regulations actually harm minority communities more and people in disadvantaged neighborhoods because the high cost of these regulations and the complexities of the law make these communities unarmed. The law-abiding peaceful people in these communities are kind of sitting ducks for the people with mal intent. I am really interested in digging into this further when we get further into this discussion.
I want to switch to Amy now. Can you give us a little bit of background on your interest and experience with the Second Amendment?
EM
Sure. I didn’t grow up with guns. If you would have asked me in law school: Are you gonna be working in the Second Amendment sphere? I would have been like: No, probably not. I kind of came into this in a roundabout way. My personal interest in firearms didn’t really develop until undergrad. I was a soccer player and I got to know some girls on the rifle teams, some hearty Texans who took me shooting for the first time, and really sort of got me into this mindset of, no, you can actually be empowered by owning firearms as a woman. This is not something for middle-aged white men. Then clerking at a public defender’s office I think for the first time really seeing crime and the effects of crime in a very personal way and violent crime, in particular, it really hit at me, again, just in this deep way. Then fast forward a couple of years and it starts coinciding with just opportunities in my career that sort of transformed into now largely doing Second Amendment almost full time.
I came to the Heritage Foundation focusing on over criminalization. This idea that we have too many laws, no one knows what they are, we’re putting people in prison because they packaged their fish wrong according to the laws of Argentina and somehow that’s now against the law for us. It just broadly over criminalization, and as part of that, I started writing on the Second Amendment rights of nonviolent felons. This idea of why can’t Martha Stewart own a gun? She’s objectively less of a danger to the public than I am and that’s not because I’m a danger to the public, it’s because she was convicted of nonviolent crimes, I think insider trading or something like that, but she is prohibited from owning a gun for the rest of her life absent a presidential pardon.
I started writing on it from that perspective and that coincided with a number of mass shootings and high profile instances of gun violence. It was just sort of a natural thing for me to start writing on because in the aftermath of those, of course, you start seeing proposals for legislation that start putting burdens on law-abiding Americans and not getting at the, you know, root underlying causes of gun violence.
So I started writing on it from an overcrim perspective and then that sort of spiraled into after Parkland, Heritage started up our school safety initiative. This idea of looking at, you know school shootings are devastating but what, from a conservative perspective, what do we do about it? How do we address these? What is the reality of gun violence in schools? And to really be a conservative voice in the room, it turns out this all started snowballing into looking at it from a mental health perspective, looking at it from a Second Amendment perspective, looking at trends of gun violence. Then low and behold, this is an issue that it turns out is not going away any time soon. It’s something I’ve grown to love and to really appreciate even more as I dig into the history of the Second Amendment, into the history of specifically women with guns and minorities with guns. The ways in which gun laws, especially the more restrictive ones, actively keep a lot of segments of society from exercising their rights to a fuller extent. So I kind of got here in a roundabout way. But thank God, because it’s been an incredible journey, and this is really a thing that matters. I’m in the same boat as Erin. It’s fun to wake up every day and work on these issues and to keep learning about them.
GT
Amy, thank you so much for sharing about that because we didn’t talk about how you came to the Second Amendment when we were talking about setting up this conversation in the first place. What you just said sparked my memory, that Second Amendment advocates were really excited about Amy Coney Barrett’s nomination to the Supreme Court. In part, I believe because of an opinion she wrote on this exact overcriminalization issue that you talked about. What are the rights of nonviolent felons under the Second Amendment? I think a lot of Second Amendment advocates saw that her willingness to even engage that at the Appellate level, when a lot of judges are trying to keep their heads down because they don’t want a paper trail that will disqualify them from being considered from the Supreme Court, at least that’s the cynical interpretation of that. I’m sure a lot of people would disagree with me about that, but that is the cynical interpretation of that. A lot of Second Amendment advocates were really happy about her being nominated to the Supreme Court, and obviously ultimately confirmed because of that. Do you have any recollection of that as well?
AS
I wasn’t sure if this was directed at either me or Erin —
GT
Oh yeah, sorry, Amy.
AS
Yeah, I definitely remember it. There was a descent in a case called Kanter v. Barr where it dealt with, I believe, an individual, who — it was some sort of Medicaid fraud. That he had submitted Medicaid receipts, or claimed that his shoe inserts were Medicaid approved when they weren’t. So all throughout this, you’re right, you had a guy that the government, that the state, everybody sort of agreed, he’s nonviolent, he’s never been a danger to himself or others. Why are we, essentially, imposing a lifetime ban on possessing firearms for him. Judge Barett was the lone dissenter in that. This is what I think really excited Second Amendment advocates was the way in which she went about formulating her opinion. She was, one, incredibly consistent with digging into the text history and tradition of the Amendment. She did her due diligence. She didn’t just sort of brush over our history or the text. She really dug into important aspects of the history in a way that, again, was faithful to Heller, faithful to McDonald. It’s not something that we’ve seen in a lot of, especially Circuit Court opinions, regarding the Second Amendment. The way that I’d phrase it, and Erin, you may or may not agree with me, but I think we’re almost at a point within the circuit courts where Heller and McDonald, for a lot of judges, could be used to uphold basically any form of gun control imaginable as long as you sort of like squint your eyes and tilt your head a little bit and just ignore what it actually means, but Judge Barrett refused to do that. She did her job faithfully as a judge and that really came out in that dissent.
GT
Erin, I want to ask you since you are such an expert and you have written so many briefs and thought deeply about the Second Amendment. Can you give us a little explanation of the historical background of the Second Amendment? You hear so many people arguing about it who don’t understand the history that made our founders want to make sure that this right was enshrined in the ten amendments that were adopted as part of the Constitution. Could you give us a little bit of historical background on how we even got to the place where this was enshrined in our Second Amendment?
EM
Sure. I think there is obviously competing narratives about this and this was basically the question in the Heller vs. District of Columbia case that the court was resolved was which narrative is historically accurate. There was the idea that this was just sort of there to preserve the right to have a militia. That was sort of the narrative for a long time, but in over the course of decades, many scholars, once they really started looking at the history and understanding what was going on, some of it is just not true at all. This was actually very much considered a core, individual right, a right of self-defense, a right of any law-abiding person to be able to have weapons to defend themselves such if you push yourself back in the context of the times people were living in. It was also really, in a sense, a right that was about having rights against the government and the fear that it’s problematic if the only people who have access to arms, and access to the means, to kind of engage in defense are the government itself.
I think about it as coming from that kind of strong like libertarian, sort of antigovernment aspect of the founders. The founders were very concerned with having rights against the government that said: You can’t come in and take our weapons away. Because just like things like coming in and controlling our speech or telling us what religion we have to practice, are just the means of taking away our foundational liberties. So too, is taking away weapons and the right to defend oneself.
I think historically there is both just a real-world pragmatic kind of natural right aspect of it that developed in the sense of everybody having a right to self-defense, and to have a right to self-defense, you need to be able to be armed in the same manner, basically as somebody who is going to try to harm you. Also in the sense of having this right that really it is a bit of a bulwark against tyranny and against the government. I think historically you really see both of those strains in the way that the Second Amendment came about.
One of the things that makes it interesting, especially as a constitutional matter if you’re like I am a big nerd about sort of constitutional scholarship of history and all that is there is some rights that developed in the United States that are really developing from what the right was in England and what did we bring over with us and we want to have the same right.
When it comes to the Second Amendment, I think, there is certainly origins and parts of it that come from there, but part of it was a bit of the aspect of rebelling against some of the history of England. Because if you go back, especially in kind of the 100 years before the United States came about, and look at the history of firearms in England, it demonstrates to you precisely how the ability to control who could have firearms was just a mechanism to discriminate against minorities. At the time in England, most of this came up most prominently as many things did then, in the context of religious discrimination.
It would be kind of taking between the battles of the Catholics and the Protestants, whoever came to power, the first thing you want to do is disarm the disfavored religious minority. There is really this historical strain of the United States coming about and saying we not only are going to protect your right to have whatever faith you want, but we understand the ways that you go about undermining that are not just by saying you have to be Church of England, they’re also by giving the government the power to control speech, and to control who has access to firearms. By saying you can’t do those things, they’re almost sort of secondary to these are the mechanism through which we’ve seen the government oppress the people, and we want to be sure those tools aren’t available to the government. I think that’s really a huge part of the origins of where the Second Amendment came from.
GT
That makes me think of a recent book I have been reading by historian, Paul Johnson on History of the English People which is fascinating. I think it was actually written in the 1970s, so it doesn’t have some of the biases that we would have now if we were writing a history of the English peoples. I think exactly what you’re talking about, there is that sense of we have new rights, also in this country, because that’s part of the experience of the Revolution against Britain and understanding the ways that government can manipulate people and what is the proper relationship between an individual and his or her government.
Amy, I want to ask you: do you have any input or insight on the historical background of the Second Amendment that you want to share, that maybe adds to what Erin has already talked about?
AS
I think it just sort of dovetail off of what Erin went over about how the right develops in the context of England and the historical use of English monarchs of forming select militias to keep the rest of disfavored minorities oppressed. Monarchs throughout history, but especially within England, sort of intuitively understood this. If you want to have complete power over the people, you disarm them, and then only authorize arms for people who are going to carry out your will against the rest of them.
What’s fascinating is that to fast forward post ratification, you still see the same theme even in the United States, but in a slightly different context. Again, this understanding of gun control being used as a means of oppression. Unfortunately, in the United States, the history that we see of that is gun control as explicitly and implicitly, as a tool of essentially keeping minorities subjugated specifically African Americans, both before and after the Civil War. You look at the history of gun control before the Civil War, a lot of it is actually explicitly racist. Again, it makes sense in a historical context because for as grotesque as it sounds to modern ears, African Americans at the time, (audio skips) part of “We the People.” When that right was stripped from them, it was a means of keeping them subjugated so that you would have these racist gun laws about black people whether free or enslaved, being unable to carry guns, to possess guns, to possess ammunition because there was this inherent understanding, again, that if slaves are armed, they’re no longer going to be slaves. They’re going to insist upon their rights as human beings. I think, again, it just sort of underscores the importance of that.
Then you start getting into the 14th Amendment and how part of the 14th Amendment was actually to ensure that states had to apply this right equally to the newly freed men. That they couldn’t arbitrarily strip the right to keep and bear arms from them, even though they were formerly slaves. And that what this actually doesn’t practice, is fully raises them to the status of citizens but they’re no longer slaves or subjects. They have the right to defend themselves and their rights. Again, I think just to give the water depth of context that this continues to be the theme of gun control and the importance of that right to keep and bear arms. Again the ability of people to insist upon their rights, especially as against those who would strip those rights from them and subjugate them.
GT
Wow, that is really great. Both of you have such great insights and you come at it from such a different way, I think it’s helpful. Because we all have these rights and we’re advocating for them but I think we all have individual experiences of how we see it and how we think kind of the lens that we should see it through.
I want to ask both of you all, I’ll start with Erin and then Amy can chime in too, on the original meeting of the Second Amendment. If you take just the Black Letter Law of the Second Amendment, and what it says, it is hotly contested. We already talked about how some people have tried to push the narrative that it was just talking about preserving militias and I know you have heard this all the time too, people saying: Well, the Second Amendment only protects muskets. Because that’s what people had at the time that it was written. So that was the original meaning. Of course the rejoinder to that is: Well, then I guess the First Amendment doesn’t protect any electronic communications or anything that we have in a highly technological society in a way to broadcast our opinions or free speech about anything. It’s just a completely absurd bumper sticker slogan for advocates of gun control, in my opinion.
I’m curious, Erin, first, and then Amy; what do you see is the importance of looking at the original meaning of the Second Amendment? Maybe just explain quickly, for those who are not familiar with the concept of “original meaning,” what that means in constitutional interpretation.
EM
Sure. The concept behind “original meaning” is that the Constitution it was essentially a compact. It’s people who chose how they wanted to be governed, and what rights they wanted to have be part of the government. Part of that was also the ability to change the Constitution. It’s not written in stone. One of the important provisions of the Constitution is provision explaining how you amend it. But the idea is that we all agreed to something. The concept of “original meaning” is well, you have to look at it like what we actually agreed to back then and in subsequent amendments to the Constitution and think of it as these are the rights we, the people, reserve to ourself and understand them in the way that the people were reserving them, rather than thinking of it as: Should we have a Second Amendment? Should we have a Second Amendment is a policy question, it’s an important question, it’s a good question to debate. If we don’t want to have one, there is a part of the Constitution that very clearly lays out how to repeal the Second Amendment but, as long as we have a Second Amendment, the question shouldn’t be, how can we interpret this in a manner that we think makes it like, kind of most useful, or best accommodated to today’s needs. The question should be when the people of the United States ratified this Amendment, what did they intend to ratify, and what rights did they intend to enshrine? That’s a principal that’s not unique to the Second Amendment. That’s a concept of “original meaning.” It’s a concept of how we interpret all the provisions of the Constitution and we think about it not as what today do some judges think should be in the Constitution, but what really is in it and what did everyone agree to back in the day?
I think, to me, just to reinforce, Gayle, what you said, I think the key thing is: Look you’ve got to be consistent in how you think about these things. If you would interpret every other right in the Constitution in a way that takes into account how you apply the principle everyone agreed to to facts on the ground that change over time. It can’t be that yes, the First Amendment, of course that protects email, but the Second Amendment is the one Amendment alone in the Constitution that is completely static. I just go back to the McDonald case. The Heller case was about what the Second Amendment means and then the McDonald case was about whether the Second Amendment applies to states. Every other Amendment, all the Justices, for years, they’ve all said they apply, and all of a sudden, you’ve got four Justices in the dissent who say, like every Amendment under the sun, of course, applies against the state when it comes to rights of criminal defendants, when it comes to First Amendment. All that stuff, of course ,applies against the state, yet it comes to a Second Amendment and all of a sudden, they discover like a new theory which that’s the one Amendment in the whole Constitution that shouldn’t apply to the states the same way it applies to the Federal Government.
To me, this is part of what I always have enjoyed about Second Amendment work. I do a lot of Second Amendment work, but I am a Constitutional, Supreme Court lawyer as general matter and do tons of other kinds of work too. It’s such an interesting area to me, Second Amendment work, because it really shows true colors of judges of advocates, of everybody because it’s very hard for people to divorce their policy views about guns and the Second Amendment and whether we should have a Second Amendment from the historical question of what did the Second Amendment mean when the people who put it in the Constitution, ratified it in the Constitution, put it in there. One of those questions is a question for policymakers and one is a question for judges and the judges should be focused on the question of what it means, not whether or we should have it or whether we need to update it or whether we should interpret it in some other manner because it’s less necessary today than it was then. Those are policy questions that are important debates to have, but when you’re talking about the original meaning of the Constitution, what you should be focused on is not what someone wishes the Constitution means but what does it in fact mean in the context of when people made that social compact to be governed by the terms of it.
GT
I’m going to be a little bit of a devil’s advocate before we go to Amy’s interpretation of this. You kept repeating, and I agree with you, that the people, at the time decided that this was the compact, they were going to come together, they had a system to amend it. But the devil’s advocate would say, the people who were deciding this was a very small part of the population. They were the elite. It didn’t include African Americans. It didn’t include obviously the slaves. It didn’t include women. None of us would have had a say in this at the time. Also, being the devil’s advocate, people would say it’s too hard to change the Constitution. How many years has our republic existed and how many Amendments have we had to the Constitution? We have to rely on the Courts, to keep Americans safe from the scourge of gun violence. What would you say to people who would raise those two points with you?
EM
I would say a couple of things. I think, first, to the point of the people who made the Constitution, were not representative of everybody. You can say that as to everything in the Constitution. Yet, our solution to the fact that it was not a representative group of people who ratified the First Amendment isn’t to say: So therefore we’ll pretend like there’s not a First Amendment. Our solution is: Well now we may need to make sure everyone understands that the First Amendment applies to everybody. It’s not just confined to ‑‑ it’s not rights that only are for white men. That’s what we’ve done in the majority of context, you say we need to extend the rights because they were on the right track by recognizing the rights. What they may not have done, is recognize that everybody has an equal right to participate in them, so we fix the problem by extending it.
I think that goes to the second point, which is, yeah, we don’t have a ton of Constitutional Amendments, but we haven’t had any problem having Constitutional Amendments that ensure that everybody gets to participate in the rights. Those are some of the Amendments that are some of the most important Constitutional amendments that came after the Bill of Rights.
I think the political reality is it’s not that there’s some structural impediment to getting rid of the Second Amendment; there’s a political impediment to it because every poll for a long time has showed that the vast majority of Americans support having a Second Amendment. Sure, when you get down into the details of what exactly, what kinds of laws, and exactly what kinds of policies should be permissible, exactly what kinds of firearms should be covered by the Amendment, there’s a lot of debate about the details. But there is pretty widespread support for the view that there should be an individual right to keep and bear arms. If people don’t think that should be the Constitutional Right, then go convince more people of that and do it through the political process instead of getting some judges to impose your political will by (inaudible).
GT
Yes. I have often had the same reflection that sometimes the people who oppose the Second Amendment or want really stringent requirements on it basically not allowing anybody but the elite and favored people to be able to exercise the Second Amendment, I feel like they just don’t want to engage in the political process. The hard work of getting out to vote, canvasing, getting the people elected who will put the laws in place and that they want to shortchange that by having the courts basically find for them. I think it was kind of shocking to people after the Newtown tragedy that President Obama and his Administration were not able to push — he did push through a bunch of executive orders that were completely irrelevant to what had happened at Newtown and that is frequently the case after these mass shootings. That there’s this urge to do something, anything, and it’s not anything related to what actually transpired.
I think a lot of people on the opposition to the Second Amendment were surprised that given that horrendous event that the Obama Administration couldn’t be more successful pushing through really stringent gun control laws. But I think it gets to your point, Erin, that there’s just not, at present, and you look at gun sales in the last 12 months since we’ve been dealing with the pandemic, they’ve been through the roof. It seems like there’s a disconnect between what some legislatures want to do and what the American people want.
Amy, do you have any reflection on that that you want to add at this point?
AS
Sure. I actually want to pick up with what you just said about 2020 and gun sales that just have been historically unprecedented. Something like eight million first-time gun owners, I think the numbers I saw are something like 24 million firearms sold. Lots of women, in particular, and African Americans, for the first time exercising their rights in 2020.
When you look at why that is, I think it really hits again at the core of why this right exists. I think a lot of these sales were driven in part because of a very real sense of just how fragile civil is; just how fragile our reliance on government protection is. That often government can’t or won’t protect us from infringement on our rights. You saw this with a summer of very widespread civil unrest and that was on the heels of coronavirus where you had this feeling of oh my goodness, is society collapsing? You have police departments essentially saying, look, we’re ravaged by COVID-19, if there’s not a dead body, please don’t call us, we won’t show up. There’s very real feeling of, wow, these services that I rely on that we form government to have, that may not actually be there. We may have to rely on our natural right to self-defense, both individually and collectively.
I think this gets back to the heart of what is the purpose of the Second Amendment. Actually, I want to quote here, just briefly from the Constitutional scholar, Joseph Story, where I think he really does a great job of wrapping this up. What is the point of the Second Amendment, what is its original purpose and meaning? What he says is, ” One of the ordinary modes, by which tyrants accomplish their purposes without resistance is by disarming the people and making it an offense to keep arms and by substituting a regular army in the stead of resort to the militia.” He continues it to go on about how this militia system is a check on the designs of ambitious men, and then he says, “The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.”
What is he actually saying there? So you have the sense in which the American colonists were terrified of a large, standing army. This idea of a select militia, s standing army that could oppress on unarmed people. This idea of this is a government of by the people and for the people. Therefore, the people ought to have the power. This idea of a militia, basically of all Americans, all residents, all citizens trained in arms, being able to enforce their collective rights either individually, again, we maintain that right of self-defense to defend our individual rights and liberties, or whether it’s against foreign invasion. Which I know at the moment, nobody’s sitting here going: Oh my goodness, Canada might invade us. We’re very blessed to not have to think about that. But then domestic insurrections, domestic usurpations of power, this idea of tyranny. The point of the people being armed is to have that last ditch fail safe. For when the government either can’t or won’t be there to defend your rights or liberties.
Then at the same time, for when the government might try to actively oppress your rights or liberties. Again, just go back to why are we seeing those gun sales in 2020? It’s because people, possibly for the first time in their lives, started intuitively understanding that that is what the right to keep and bear arms is for, for those moments when government might fail us.
GT
I think that is really amazing to think about. That’s a great quote from Joseph Story, I’m definitely going to look that up and I think that idea that this past year, the 12 months, like you’re saying, the civil unrest we saw this summer. The so-called insurrection at the Capitol. Definitely the inability of the police to respond in the way that they have in the hospitals. So many of the things that we take for granted in our society, just breaking down because of the pandemic. It has been unsettling for everyone and I think it makes everyone kind of challenge their assumptions about how life goes and what exactly are ‑‑ I think I should only speak for myself. I think I took for granted a lot of the safety and security that we have, and I’m sure that that has been the case for a lot of people around the country, and probably around the world too.
On that topic, I would like, in the last 15 minutes that we have, I want to talk about current issues with the Second Amendment. Maybe Erin can give us a preview of cases that we should be watching at the appellate level and at the Supreme Court. Maybe, Amy, you could talk about other types of issues that we have with laws that are being put forward.
I know that the Biden Administration definitely has made noises that they want to get certain things accomplished during his administration. You don’t like to kick people when they’re down, but I would say I would be remiss not to bring up the headline story of Hunter Biden, probably lying on his firearm purchase form and the story about his brother’s widow taking the gun away from him and throwing it into, I think, a dumpster in order to prevent him from doing harm with it. Just the irony. People have problems, and I’m not trying to bust on Hunter Biden, but I do think it’s seemingly strange to have the President of the United States pushing for more gun laws, when the three of us know there are over 20,000 gun laws on the books already. We definitely saw during the Obama Administration that the Justice Department was not prosecuting some of these very tough gun laws on violent felons. They were just not pushing prosecutions when people lied on forms and they had the ability to prosecute them. It was really a decision not to prosecute them.
I’m curious about your thoughts, both of you, on this Hunter Biden story too. Let’s start with Erin on a court preview.
EM
Sure. So there’s really, I think probably the two biggest issues that are being dealt with by the Courts today are whether there’s a right to carry firearms outside the house, whether concealed or openly, but just whether there is a constitutional right to carry firearms. The vast majority of states in the country, protect the right of their citizens to carry firearms. Basically, a lot of the kind of coastal areas, the large, populous cities, do not. California, New York, couple of these big states do not. The lower course, the course of appeals, have divided on the issue of whether there’s a constitutional right to carry a firearm. The Supreme Court, normally, when you have that kind of debate, what the Supreme Court’s job is to resolve it. The Supreme Court seems to just keep not wanting to resolve it. We’ve personally filed I don’t know how many petitions asking them to resolve it. Some of them where they’ve been in different memberships, different breakdowns, of who was on the court when they were filed.
We have one pending right this minute, that the Supreme Court considered about a week and a half go for the first time and considered again last week, and we’re just waiting to see whether they’re going to take up that issue and resolve that dispute amongst the various lower courts across the country and decide whether the states can essentially prohibit ordinary law-abiding citizens from carrying a firearm. That’s a huge issue in on, I think, probably the biggest, most important, pressing issue that’s going on right now. There’s a lot of debate about it as a historical matter, as obviously it’s a policy matter and all of that. But one day, sometime hopefully soon, the Supreme Court will actually take it up to resolve.
The other big issue — I mean, there are a lot of issues, but these are just the two that I think kind of are the ones that have been litigated the most and have produced the most division — is what kinds of arms does the Second Amendment protect? This often gets litigated in the context of so-called assault weapons, and large capacity magazines which really are just like ordinary firearms that have just minor modifications or magazines that can carry a capacity that’s been standard for a century. There has been differing opinions among the lower courts about whether restrictions, prohibitions on so-called assault weapon prohibitions, or restrictions of magazine capacity are constitutional. That has come up in a variety of different context and, itself, has produced differing opinions, lots of dissenting opinions. It’s both a historical question and there’s just a lot of debate on understanding, kind of how do we ask the question of, okay, even if you accept that the Second Amendment protects arms, what are arms? I think we all agree it’s not anything under the sun. Like nobody really thinks you know, you’ve got like a constitutional right to keep a bazooka in your house, but at the same time, like, we also don’t —
AS
You say that, but I’ve been on those cases, okay?
EM
I know.
GT
Yes, we’ve all had that.
EM
But then there was the Supreme Court in Heller, like the argument was made in Heller of: Oh, well, what do you need a handgun for if you could have a shotgun? And the court said: No, no, no, like, handguns are the weapon of choice for people. They’ve been around for ages and it’s not a right to like one arm and the government can decide what it is. But in between those extremes there is a lot of interesting questions about, what should the test be, how should we think about what arms are in, and what arms are out? I think those are really, from just like a kind of a constitutional litigation perspective, probably the two biggest issues being litigated in the lower courts.
GT
I have a question for you Erin, that you might not want to answer given that you have to go before the Supreme Court Justices all the time and you might not want to get this information out there. I am curious as to if you have a favorite Justice on the Second Amendment, on these issues? I, myself, really enjoy Justice Thomas’s frequent dissents on the Second Amendment, but I’m curious if you would share with us if you have a favorite Justice on the Second Amendment.
EM
I’m never allowed to say anything about a favorite Justice if I did clerk for a justice and favorite is a dangerous word. But no, I think Justice Thomas has been a great champion of Second Amendment rights. I think he has probably been the most stalwart champion, at this point, of Second Amendment right. It also makes sense because I think he has, for a long time, been really a leader on the court in terms of as we were talking about earlier, the concept of originalism. I think it’s just easy and natural for him to look at something and say: I’m not here to decide whether having a Second Amendment is good or bad or judge people if they do or don’t want firearms. My job is to think about what the framers meant at the time. I think that particularly on this issue, that ability to kind of come at it from that perspective is invaluable and has made it just a natural issue for him to be a bit of a leader on.
GT
Let’s go to Amy and ask if you have any thoughts on what we just talked about and also if you could us kind of a legislative update. I know that’s Heritage Foundation’s sweet spot of what you all keep track of and try to keep people informed about.
AS
Sure. A lot of the legislative updates in states, there is very clear divide. You do have a slew of states in recent years that have looked to remove barriers to the exercise of Second Amendment rights. I think one of the most prominent examples of this is the number of states that have moved to a constitutional carry or a permit list carry framework. That essentially, if you are not otherwise prohibited from possessing firearms, you have a right to carry guns in public without obtaining a permit or getting permission from the state, it’s just sort of presumed that you have it. Then also have the usual suspects that continue to find new and improved ways of getting between law-abiding Americans and the exercise of their Second Amendment rights. States like California wanting to implement background checks for ammunition purchases. The roll out of that was so bungled.
EM
I have personally been litigating that case and argued that myself. It’s a mess of historic proportions.
AS
Right, right.
GT
California for you.
AS
You then get some, what I ‑‑ at the federal level, for example ‑‑ you start getting more off their rockers, no chance of passing, type of legislation. Things that come to mind are I think it’s HR127, where it’s this national gun-permitting-licensing scheme that would essentially say you have to not only beg the government for permission to get a gun and go through this arduous licensing process, but as part of that you actually have to prove to a psychologist that you are sane enough to own a gun by some you know, vague undefined standard where the government gets to determine whether or not your Second Amendment rights actually apply to you. Things like that where it’s sort of like the pipe dream of gun control advocates that I don’t think have a chance of passing at the federal level. But you are continuing to see other pieces of legislation at a federal level that are concerning.
Again, as Erin talked about, you fall under these categories of cases that the Supreme Court hasn’t yet taken up so it kind of has left the door open for legislation things like reimplementing the federal ban on so-called assault weapons, expanding background checks, not just to include intrastate private sales, but to basically criminalize any transfer of guns between people no matter how temporary or low risk that there are lot of problems with. Things like that I think are more realistic but still incredibly problematic. Again, until the Supreme Court steps in and clarifies some of these issues, specifically about the types of firearms that are protected whether or not that includes semiautomatic rifles with a pistol grip instead of those without a pistol grip. You’re going to continue to see pushes at a federal level, especially, and in states that don’t already have it that are sort of leaning toward gun control for things like assault weapons bans, magazine capacity limits, and those sorts of things. They’ve been common to push for that for a while, it’s going to continue to be common until we get a clear ruling on it.
GT
I want to ask both of you to share where people can find you, what you’re writing about, what you’re doing and ask both of you if you have kind of a final comment. I want to thank you both so much for joining me. When I was put in touch with both of you to arrange this clubhouse, I was so excited because there were other people in D.C. who care about this issue and I just felt like we were kindred spirits right from the first time I spoke with both of you, so I appreciate it so much.
I’m going to ask Erin first, if you could tell us where people can find what you’re writing about or doing, just to follow along and if you have any, kind of, parting words about the Second Amendment.
EM
Sure. My work, I’m more a litigator than a scholar, so where you want to find me is looking at what cases are going on. Looking at things like great resources like, SCOTUSblog, which is a great blog for anybody who likes to follow the Supreme Court. Things like that, where you can look at the cases. If there’s an interesting Second Amendment issue being litigated, probably somewhere out there, I’m litigating it. That’s the best place to look at what I’m doing.
The parting thought I would offer is whether you’re kind of like, consider yourself a gun person or not, is sort of beside the point. Like Amy, that’s not how I came at being interested in and enjoying Second Amendment work. The Second Amendment is just, in a way, a microcosm for all the critical debates we have all the time about our Constitution and about how we should interpret it and about what it means, people ruled by law and laws that we decide on and that we agree upon and that we have a degree of social compact. It just puts all of those issues together in a great way that I think helps you better understand, not just the Second Amendment, but the Constitution generally and to really be thoughtful about how do I distinguish between understanding what I think about policy, and what I think about the law, and what is it that makes those two things different, and how can I be sure that I think critically about both of them, and appreciate the difference between the two, and how to make legal arguments, and how to make policy arguments. How to make each of them work in service of each other.
GT
I love that so much. I want to put that on a laminated card, “The microcosm for all these critical debates.” That is such a beautiful way to put it, Erin.
Amy, would you give us your parting thought and also where people can find anything that you’re writing about or what you’re working on?
AS
Absolutely. You can always see what’s going on at thedailysignal.com and heritage.org where we put up a lot of our publications and op-eds. Honestly, the easiest place to find what’s going on, if you’re on Twitter, follow me. It’s @amyswearer. Shameless plug for my Twitter, but it really the easiest place to figure out what’s going on, what I’m doing, what I’m writing. You’ll also get some gratuitous, cute, cat pictures.
GT
We all love cat pictures.
AS
Yeah. Parting words, two quick points. My first as a public service announcement that I love to give, whenever humanly possible and that is if you are in the area of the District of Columbia: The District of Columbia is a shall-issue jurisdiction for concealed carry permits. They do not make it cheap; they do not make it easy, but if you jump through all the hoops, they will give you a concealed carry permit, which leads me to my next point. Insist on the exercise of your rights; insist on it whenever possible, even when it’s unpopular to do so. And maybe this is a third point thrown in, you can insist on your rights in good faith while still coming to the conversation, recognizing that at the end of the day, we’re all on the same side. There is no side to gun violence. There is no side to wanting safer communities and a safer nation. What we’re actually talking about, is how to get there, and a lot of times that gets lost in these conversations, but there is not this tension between the exercise of fundamental rights and being able to still enact policies that save lives. These things are not intention. They work together, it’s not an either/or; It’s a both/and so continue to insist on your rights.
GT
Amen, Amy. I’m going to have to put that on a laminated poster, too. Those were such excellent ways to close up this discussion between the three of us, and I’m Gayle Trotter. I’m a liberty loving, tyranny-hating lawyer based in Washington D.C. I’m going to post this conversation on my YouTube channel tomorrow. Right in D.C. You can follow me on Twitter, gayletrotter, Parlor, Instagram, Facebook, and it is so inspiring to have such educated, hard-working women who are advocating on behalf on the rights of all American citizens. I just want to thank you again, Amy and Erin, for joining us today.
AS
My pleasure. Thanks for putting this together.
EM
Thanks for having us.
