Do you want in on a secret? Like why bro culture is making a comeback? Or why a makeup fat is suddenly sweeping your feet? On the It's Been A Minute podcast, we know these things don't happen by accident. So join me as we go beyond the trends and find out the why. Follow the It's Been A Minute podcast from NPR. It's Done in Okima, Oklahoma. Two cars, a plimuth 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 the Thai and Gag employees, force a bank officer to open the safe. Word of the robberies splashes across local newspapers. Two institutions held up and a team of 15 tied. Okima's two national banks robbed simultaneously of $19,000 Saturday. The robberies were staged with clock-like precision in the gang fled. Eventually, the bandits get caught.
One of them, a halking 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 squealings had former co-members of the gang behind bars with Muscogee 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 sawdoth shotgun, the police arrest him for the legal gun. In this time, rather than cooperate, Jack Miller goes the other direction. He says, actually, having this unregistered sawdoth shotgun, it's my second amendment right. In court biolings, 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 US history, the second amendment was one of the sleepier amendments. There are 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 sawdoth 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.
There's one thing that I think just so often gets lost in the discussion of other 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 it's not a binary, it's not an either or. I'm Ram Teen Arablui. And I'm Renda Bdfette.
On this episode of Thurline 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. It's a part of our series, We the People, looking at the present and future of amendments to the U.S. Constitution, why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.
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 Thurline from NPR. Okay, so tell me if this sounds like you. You love NPR's podcasts. You wish they weren't interrupted by sponsor breaks like this one, and you want to support NPR's mission of creating a more informed public. If this does sound like you, then it's time to sign up for perks across more
than 20 podcasts with the NPR plus bundle. Learn more at plus dot NPR dot org. They're all over the internet and bumping out of people's cars. They're the songs of the summer, and this year includes the domination of Charlie XCX and Brat Summer. She's really tapping into this moment where we are all chronically online, but also chronically outside. We are talking about the songs of the summer and why they're so catchy and inescapable. Listen to the pop culture happy
hour podcast from NPR. New from the Embedded Podcast. Elite female runners are being told they can't compete because of their biology. Not only can you not compete, you're not actually female. Here about the hundred year history of sex testing in women's sports, and the hard choices these athletes are facing now. Listen to Tested, a new series from CBC and NPR's Embedded Podcast. There's 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 haven't memorized. Oh, very, 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 Blocker. 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 Darryl 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 Blocker, 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 the centralized government. Great Britain's centralized government. They'd beaten back the British by
mobilizing and organizing our 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 in bear arms shall not be infringed.
That is, we'll keep the state militias, we'll guarantee that they can stay armed, and they'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 in 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 got to 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.
It was just fast thing 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. That story changes, which groups are subject to that kind of change 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 disarmed them.
So those are individualized, they're not just based on your group, but like kind of who you are, right? This person's drunk and they're dangerous or whatever, so there's 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. This is 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 North Hampton. 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 paying to forfeit their armor to the king and their bodies to prison
at the king's pleasure. That's the Statute of North Hampton for 1328. By the time the Second Memons ratified, you'll see restrictions on taking guns into government buildings, court houses, 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 unmannedly. It was the kind of thing that an assassin would do,
not a 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 seem 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, it could seem 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 could they, how would they, they could be displayed, like when they could be used. Those are 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 do you have all this kind of complicated layers of regulation happening at the state level? We have the the vignature of the Second Amendment. So why did the Spetal government start to get involved? So it's interesting. You can almost you can almost hear the
story in the text of the law. And the law here is that is the 1934 National Firearms Act. It imposes restrictions, not actually total prohibitions, but restrictions like like taxes on the manufacturer and sale of certain kinds of weapons. Weapons originally designed with World War One battlefields in mind had found a new home with gangsters. Those weapons happen to be things like machine guns, 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. What they had in mind was the Tommy gun. The Tommy gun that was used 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 ganglin rivals lined up against a wall and then mowed them down with Tommy guns. It's the, it's the mass-e gun. I always say that. That like old Tommy was mass-e.
The Tommy gun is that gun, you know. It is exactly that gun and you have to like a cigarette dangling from your lip, but 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 Dullinor 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 has 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 shotguns. Like exactly the kinds of weapons that this law would go on to prohibit. Roosevelt himself was nearly shot in 1933 by men in Giuseppe Zangara, who missed the president, but hit a couple other people, including Mayor Anton Sermack of Chicago, who later died of his
wound. So Roosevelt was motivated personally. So at the time that the National Firearms Act is enacted, it's like early 1930s, there's a Sky 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, when you know it, April of 1938, gets pulled over and it's found to be in possession of an unregistered
sawed off shotgun. 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 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, you're 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, 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. The 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 can screw 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. McRennelt. 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. Yeah. That's wild. So by ruling this way, the Supreme Court has said, there's no way you can justify like having that sawed off shotgun for gang activity or whatever is the same as being like in a well-regulated militia.
It's going to protect the state against a tyrannical government. We see no evidence 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 in individuals 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 in bear arms, how that would come to shape the terms of the political debate over guns in America. Hi, my name is
Munjurin Sefat. I'm from Williamsport, Pennsylvania and you're listening to Through Line from NPR. Hey, I'm Robert Smith from Planet Money and this summer we are bringing you the entire history of the world, at least the economics part. It's Planet Money Summer School. Every week we'll invite in a brilliant professor and play classic episodes about the birth of money,
banks and finance. There will be rogues and revolutionaries and a lot of panics. Summer School every Wednesday till Labor Day on the Planet Money Podcast from NPR. Whalen, how much do you think it would cost to buy one of those big digital billboards in Times Square to promote our show, the indicator from Planet Money in big lights? In this economy? I mean you're probably right, but this question is the exact kind of thing that we find answers to
on our show. We take one big economic idea, make it understandable and you know, even fun. That's the indicator from Planet Money and NPR. 2024 is the first year ever that the Olympics will have the same member of athletes competing in women's sports as men's, which sounds like a big win for gender equality, right? There are more athletes competing in women's sports than ever before and we're also seeing a rise in policing
who is eligible to compete. Listen to the It's Vinemidate podcast from NPR. 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. With the sun beating down, President John F. Kennedy and his wife Jackie, Pink Su, 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 line.
In the convertible, Nelly 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 Bloaker says it's like dominoes. One high profile assassination followed by the next. There's the assassination of JFK November 1963, assassination of Malcolm X in February 1965. It's like turned around quickly. And the next thing I saw was Malcolm falling back in a dead face. The assassination of Martin Luther King, Jr. in April of 1968. Fire the single shot, hitting his target, squirreling. And then he ran. And then of Robert Kennedy, just a couple months later.
Kennedy has been shot. Is that possible? Is that possible? It is possible. He has. Well, only Senator Kennedy called my god. Just after Bobby Kennedy's assassination, Lyndon Johnson, who says, let us now spell out our grief in constructive action. Lyndon Bain's 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 this 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, miners, people with a history of mental health issues, drug users, indicted and convicted felons.
And Joseph Bloaker 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, got 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 sportsman of America can live with. If you go back to the 1930s and the National Firearms Act, the NRA president, 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. Intention between those two factions was coming to a head. So what we have here is two divisions within the NRA, which in some ways may represent two different modes of American gun owner. The 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, opposing gun regulation. That's what he perceived the mission to be. 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's represents the so-or-more self-defense wing, 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 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. Then they have their annual meeting in 1977 at Incense and Adi, 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 are 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 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 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 by 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 DC, 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 this law and order rhetoric being used by politicians, and connecting that to gun ownership and individualized self-defense. I'll say on the outside of the market for guns, also see this real increase in invocations of the second amendment as an individual right. In 1965, a man named Robert Sprecker went on to be a federal judge, argued the second amendment should be understood to protect an individual right to keep
in bear arms for self-defense, not just the organized militia version. That was a big moment. Interesting. I guess another moment here in the stories in the early 80s, I think a lot of people forget President Reagan was almost assassinated. It took a little bit about that moment, and I'm guessing that must have been also wake up call. It was huge. In ways that I don't think people could have predicted when it happened. Just as you say, this is 1981. It's March,
actually, of 1981. He's only been president, I think, for about 70 days. A young man named John Hinkley, seeking to impress the actress Jody Foster, tried to assassinate the president, and actually did hit him with a bullet. President Reagan called a bullet in the chest, a deflected bullet, but wasn't hurt nearly as much as his press secretary. I got named James Brady, who was shot in the head. 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, who are the individual leaders of the gun violence prevention movement throughout the 80s? It's hard to think of another name, Van Brady. 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 Brady's.
They're 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 loser 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 all these no longer presidents, 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 it was handed down to us by framers, and like that idea that is 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's 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 in what context, right? When does that or is 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 absolute
est 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 absoluteest rhetoric like all forms of gun regulation are unconstitutional. What part of shall not be infringed don't you understand? And so on an AC politician 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 to 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 in 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 able to shoot the three line on MPR. On this week's episode of Wild Card, actor and reading Rainbow host Lavaar Burton says he knows people see him in a certain way. It is hard to imagine you getting really angry about it. Oh my god, you could not be more wrong. I'm Rachel Martin, join us for NPR's Wild Card podcast, the game where cards control the conversation.
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 loss. 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 a salons 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 DC 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 DC vs Heller, or as people in legal circles like Duke Law School's Joseph Blocker call it, just Heller.
The Heller was the court's first in-depth engagement with the Second Amendment. Like this is where the court was really going for the first time, say something about what the Second Amendment really means. 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 in bear arms for self-defense? Like if you have to say there's one question in Heller, that's the question.
And in a splinter, 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.
A 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, Snamsky's 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 out 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 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 the 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, you 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 right's view that the court ultimately endorses. It seems like there's no cases
for a very long time, and it'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. We're just going to let the lower courts figure this out. But there's this alternative methodology that's
kind of starting to bubble up through the lower courts. It's starting to appear in descending opinions by some really prominent judges, including Ben Judge Brett Kavanaugh when he was sitting on the DC Circuit Court of Appeals. Yeah, and what Ben 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.
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, etc. It seems to me to be 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 under-specified, although you 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. What are you possibly looking at from 1791 as an analogous regulation? Of course, they didn't have airplanes. They didn't even have mass transit.
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. They don't just exist in some library somewhere where you go find, okay, here's the gun restrictions that had to do with carrying guns in schools. No, that's shoe leather type work. Even once you've found them, it's tough to draw meaningful comparisons. Partly, that's because societies change so much. It's just a technological
thing that guns have changed so much. You see that in 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 might not even fire once you do. The whole world looked different. Yeah, what's trippy about this for me is our tagline of our show is we go into the past, understand the present, and we use history in order to understand our world today. That's
what Bruin is telling the court to do in some extent. I don't know, just to be honest, it makes me feel weird because I've interviewed hundreds of historians by at this point. The one thing I've realized is 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 down to how many people died in
the Battle of Waterloo. What does that have to do with Napoleon's strategy? The point I'm making here is that this is worrisome to me, even as a history person, that we would allow this interpretation of historical precedence to drive a decision making about what's happening today at this level because the interpretation of that history is so subjective and can be used
basically to just get wherever you want to go. I think this is one of the things that I think is troubling 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 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 prohibit guns in these other places that are like subways. Then all the work is being done by the are like subways point, which is not really a history or not. I know it when I see it. 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, you know, I mean down a metal, down a metal cylinder. In that way, it's like they're still firearms. In 1994, President Bill Clinton signed into law and 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. 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. This came up in a Supreme Court case that
was decided in June of 2024 called United States for a Sraheemi. And if all is 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 of 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 court ruled A to 1 that restricting firearm rights for someone with a domestic violence restraining order does not violate the second amendment. 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. But those who were who support Rahimi side, I think would say like, you know, constitutional crusader sometimes are not the best people, right? Sometimes it's the Nazis wanting to march and scowky 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 Zaki Rahimi a good enough guy? Should he have a gun or not? It's the principle of a thing if you like, which is a true for most constitutional rights. Anyway, you look at it. Zaki Rahimi allegedly did a bunch of really dangerous terrible things, beating his girlfriend in a parking lot, shooting at someone who saw, shooting in the air when a fast food restaurant denied his friend's credit card and other threatening and shooting related
activities. This case has become the latest test in the Supreme Court for how the government can limit someone's rights. 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, I took Columbia versus 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 of well. The reason I think the Second Amendment is so such an important, I said, bellweather, I guess, for that is that because it is an area where there is very little precedent from the Supreme Court, it's the court is kind of writing on a pretty close to blank slate. So in the free speech case as 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 sort of modern, modern reality. Next week in our amendment series We the People, the Sixth Amendment, the Right to an Attorney.
80% of people who are charged with crime need a public defender. And I don't think that anyone could have anticipated how rapidly our criminal justice system has grown. And that's it for this week's show. I'm Randall Delfetta. I'm Ramteen Arabley and you've
been listening to Thurline from NPR. This episode was produced by me and me and Laurence Wu. Julie Kane, Anja Steinberg, Casey Meiner, Grisina Kim, Devon Kadeyama, Peter Balanon Rosen, Thomas Liu, Irene Noguchi, Fact checking for this episode was done by Kevin Volkut. Thanks to Peter Balanon Rosen for his voice over work and thanks to Colin Campbell. This episode was mixed by Gilly Moon. Music for this episode was composed by Ramteen in
this band Drop Electric, which includes Anja Mizani. Navid Marvi, show Fujiwara. We would love to hear from you. Send us a voicemail to 872-588-8805 and leave your name, where you're from and say the line you're listening to Thurline from NPR. And tell us what you think of the show. We might even feature your voicemail in a future episode. That number again is 872-588-8805. And finally, if you have an idea or like something
you heard on the show, please write us at Thurline at npr.org. Thanks for listening. If you're hearing this, that means you haven't gone sponsor-free with NPR+. Join us on the plus side. For awesome podcast perks across more than 20 NPR podcasts, including bonus episodes behind the scenes content, sponsor-free listening, and more. Learn more and sign up at plus.npr.org. And never hear this promo again. New from the Embedded Podcast. Female athletes have always needed grit and talent.
But for decades, they've also needed a certificate. There was a chat chat about, is that really a woman? And even now, they're still being checked and questioned. Their story is the newest series from CBC and NPR's Embedded. It's called Tested. Listen wherever you get your podcasts.