Good Law | Bad Law #99 -The real meaning of the Second Amendment: Partisans unite! w/ Joseph Blocher

Aaron Freiwald: On this episode of Good Law Bad Law we take a look at the Supreme Court's Heller decision of ten years ago the landmark ruling written by Justice Scalia which established for the first time in our country's history what many thought for a long and all about an individual right to bear arms but also importantly the fact that there can be reasonable limitations on that right. My guest is Joseph Blocher a Duke University Law School professor who was involved in the Heller decision when he was a lawyer and has now written extensively on the Second Amendment. What it means and what it doesn't mean. And why and how those who continue to be so partisan and so passionate about the gun issue actually can get together and have a reasonable conversation about gun rights, gun regulations, gun limitations all found in the pages and the words of that Heller decision very interesting and important and timely conversation about the Second Amendment. Stay tuned.

 

Aaron Freiwald: Welcome back to Good Law Bad Law. On this episode we're going to talk about what arguably is the most controversial the most partisan piece in the Constitution the Second Amendment and the issue of guns. And to help me through this is a real expert on the subject a professor of law at Duke University. Joseph blocker. Joseph thanks so much for being on the program.

 

Joseph Blocker: Thank you so much for having me.

 

Aaron Freiwald: I want to get to the special place that you have in the history of this really huge and important Supreme Court decision that we're recognizing ten years ago. The Heller decision Justice Scalia's Heller decision and I also want to get to your book on the subject of the Second Amendment but before we dive into all of that. Give us a little bit of background on yourself and and perhaps take us up to the point that you become directly involved in this very important Supreme Court case that we're going to talk about.

 

Joseph Blocker: I'd be happy to in fact almost 11 years ago to this day I was starting as a young associate O'Melveny and Myers, which is a law firm in Washington D.C. working primarily with a partner at that firm named Walter Dellinger is a former solicitor general. Walter asked me one day what my views were on the Second Amendment and I had to answer honestly that I don't have very well-informed views on the Second Amendment as a matter of constitutional text and history because like most constitutional law you know students at the time I hadn't been taught it. That was not a part of the curriculum in most constitutional case books or anything.

 

Aaron Freiwald: And there wasn't that much to teach right.

 

Joseph Blocker: It would have been a quick thing you could have taught you know just a couple really a handful of Supreme Court cases even glancingly mentioned it and in 2000 there wasn't a single federal case in the history of the United States striking down a law on Second Amendment grounds so it was really just kind of a moribund area. I mean it was just not a lot happening as a matter of law. Again politically of course as people were invoking the Second Amendment they were arguing about it but there weren't really major cases. But as it turned out there was a major case working its way up to the Supreme Court that year. And I started working with Walter on it the case was then called Parker. And then for a variety of reasons having to do with standing. Dick Heller became the lead plaintiff in the case turned into something called District of Columbia v. Heller which was eventually resolved by the Supreme Court in June of 2008. So my role was as part of a great and large litigation team helping to write the briefs on the District of Columbia side defending the constitutionality of the districts gun law. That's how I got interested in it really it was in practice. And now I've spent every day almost every day since and thinking about it or writing about it.

 

Aaron Freiwald: And the the gun law in the District of Columbia that was being challenged at that time was a complete ban on handguns. Is that right.

 

Joseph Blocker: Effectively yeah, there were a few minor exceptions but it's not it's not I think inaccurate to think about it as a handgun ban. Washington had put it in place in the mid 70s really Washington and Chicago were the only two major cities that had had those kinds of those kinds of laws. And they were you know like most places were struggling with how to respond to problems of urban crime and in DC's situation in particular that was complicated by the fact that you know Virginia right next door has a much different set of gun laws. There's all these really hard questions about what it takes to make that kind of a law work. The other part that was challenged I should mention. The handgun ban was the part that was central but also Dick Heller and his legal team challenged a restriction that required guns to be locked and disassembled when not in use. So you know you couldn't have your gun loaded on your nightstand and they challenged that as well.

 

Aaron Freiwald: OK so that's the case and we're going to talk I want to talk about the case and also cover something about the book that you've just come out with along with your co-author Darrell Miller called the Positive Second Amendment: Rights, Regulation and the Future of Heller and I know that's been a focus of yours over the 10 years since this really landmark groundbreaking second amendment defining Supreme Court case the Heller case. Namely what is the scope of this what is the significance of this decision. But I want to start with a quote from your book which I'm reading and enjoying by the way and I recommend to people. It's really the history of the Second Amendment and guns and gun rights and gun control going all the way back to ancient England really. But this quote really struck me where you say this is in the end the introduction, "The extremists are wrong about the Second Amendment. They're wrong about what the other side believes and they are often just as wrong about what they believe they're wrong about what they disagree about and they are wrong about what they agree about. They are wrong to conflate support for the Second Amendment with opposition to gun regulation. Wrong to equate support for gun regulation with rejection of the Second Amendment and wrong to treat agreement with Heller as a litmus test for supporting the Second Amendment. Most of all they are wrong to believe these things with such certainty." So I mean to me that's such a great launching point for our discussion because you're really saying everybody's got it wrong from the NRA supporting gun rights folks on one side and those who want to see more active legislation to impose limits on gun use and access to guns and things of that nature that everybody's wrong about this incredibly important Supreme Court decision, the Heller case. So I think we have to start by explaining exactly what it is that it did and what it stands for.

 

Joseph Blocker: I think that I'm happy to do that. Oh I'm really happy to do it. And I should say that really who I'm speaking to there is not just everyone it's everyone whose voices you hear. I actually think that more people are in the middle on this issue than you would imagine based on this kind of screeching polarizing political debate you see sort of play out publicly. I mean the extreme voices take all the oxygen out of the room. But one of the things that we're trying to get across is that actually there's a big middle here where most Americans already are which is they recognize an individual right to keep and bear arms and they recognize that it's subject to regulation. So we're doing we're doing in kind of a shouty way ourselves. I guess what we're trying to do is get that part of the American public of the constitutional tradition of the existing doctrine heard over this kind of yeah partisan polarizing screaming kind of debate it's not that everyone is wrong it's just that the really loud voices are wrong and they're drowning out the sort of you know the the people who I think frankly or are in the middle. And to your question about will how does that how does Heller her sort of fit in there. And you know there's sort of two I would say maybe we could start by saying there's sort of two major things to take away from Heller. One is a thing for which it's best known the central question in Heller was is the second amendment limited to basically people and arms and activities that have to do with the organized militia. So you hear people often say you know well regulated militia being necessary to the security of a free state. That means this is about the state militia and then the other view was this is sort of the competing view that between the two of which the court had to decide in Heller is that no no no it's not about organized militia. It's really a right for everyone. Whether or not they are in any way connected with the organized militia that's sometimes called the individual rights. And what Heller did and this is what I think makes significant and potentially controversial was the justices ruled 5 to 4 in favor of that individual right. So that's like the main central. People talk about Heller that's like the main takeaway point I think that they want to get to. But there's the other part of it and this is the part that I think sometimes gets lost both by people who like Heller and by people who are criticizing it is that the court and Justice Scalia's writing the majority opinion here really goes out of its way to emphasize look this right like all constitutional rights is subject to regulation and the court goes on to list some forms and we can certainly talk about those. But it's like holding both of those things in one's mind is really what I think carves out that space in the middle.

 

Aaron Freiwald: Well let's get let's take those separately. First of all the individual rights holding of Heller which is first of all it's fascinating that it takes until 2008 for the Supreme Court to declare that. Here is here is not some remote distant obscure part of the Constitution it's the second amendment and yet it took until 2008 for the Supreme Court to clear up this question and to really give the authority and weight of the Supreme Court's ruling to those who for a long time had been using the phrase a right to bear arms. So how did it take that. How did it take the Supreme Court as long as it did to get to the point where it would recognize that that's the core of the Second Amendment here.

 

Joseph Blocker: It's a really hard question and it's one that in some respects I'm I'm not well positioned to answer just because I you know I by the time I became conscious of it those two views were both prominent both the militia based and the sort of individual private purposes view. But when you read the history I would say it was striking just how much the militia based view dominated. I mean when I said what I said earlier is I just think so amazing that for more than 200 years there's not a single federal case anywhere in the country that strikes down a law on Second Amendment grounds. There's one district court decision in 2001 that quickly got overturned. It's just it's like the Third Amendment you know against quartering troops in the home there's nothing happening as a matter of as a matter of doctrine. Now sometimes it does take the court a while to get around to you know really developing the jurisprudence of an amendment. In fact Justice Scalia pointed this out that it took you know really until the early 1900s for the First Amendment even to become you know what we think of as today like an forcible important right to free speech. So I don't want to read too much into it but I do think it's true at least within again within doctrine and within the legal academy that the militia view just overwhelmingly dominated. So there wasn't even really like a confusion to clear up from most people's minds and this wasn't a partisan thing. This was left right and center.

 

Aaron Freiwald: And there were but it's not like there weren't limits on gun use that were on the books that could have provided a basis for challenge long before DC's handgun ban which is call it that for shorthand. So you know is it that I mean there wasn't a more organized effort to focus on litigation and the courts by the NRA and others in the gun rights movement. I wonder if that you know provided some impetus through the courts to have this become something the court had to resolve.

 

Joseph Blocker: Oh I think you're absolutely right there. I actually think there's two really important things in ways that just to emphasize one is you're certainly right. And this is something people I think also underestimate to say that there was a lot more than people realize a lot of gun regulation on the books going back to the founding this is not a new thing the Brady Center didn't invent gun regulation that's something that we've had on the books. You know as you mentioned in the introduction going back before this was the United States so there were ample opportunities. Now some of that got resolved under state constitutional law because the states have their own constitutions their own bills of rights. And many of them already recognized the individual right. But it's true as a matter of Second Amendment doctrine there's just not a lot happening. And I think there is something to the story certainly that you know you can you could pinpoint the beginning of this at different times. But really with the sort of rise of the law and order frame the NRA's pivot in the late 70s from being mostly a an organization devoted to recreational gun use and gun safety to being a group that now lists protection of constitutional rights as among its top priority that you just have much more institutional force and energy and also just more I don't know how to put this sort of fear of others fear of crime sort of driving the gun market. You know for a very long time recreational use of guns was the number one reason for gun ownership in the last few years slipped over to self defense. You know that I think kind of tracks maybe explain a little bit the the the the changing popular view let's say about what the Second Amendment itself is for.

 

Aaron Freiwald: So OK so the main part of Heller then recognizes an individual right to bear arms or to have and carry and use guns whether for self-defense or recreational use or any other lawful purpose. But there is this section of Justice Scalia's opinion. We've actually talked about this on this podcast before when we were reflecting on the legacy of Justice Kennedy. And I think it was actually someone who's quoted in your book professor Joyce Malcolm who we had on looking back at the legacy of Justice Kennedy and we talked about that passage in the Heller case where it is recognized that the Second Amendment is not an absolute right and that there are limitations on that right. And that that was something she pointed out that that was very important to Justice Kennedy to get him to sign onto the five votes to become one of the five votes to be in that majority along with Scalia. That really is the other very important part of the Second Amendment and this decision that I think you would agree. Right. A lot of people don't even realize is core to that decision.

 

Joseph Blocker: I 100 percent agree. You know it's hard to know what was the the price of Kennedy's vote or the chief justices vote for that matter. But I think it's certainly often said and may be exactly right that this particular paragraph and I can almost quote this from memory but as I've had to read it or cite it but the court says know there's nothing in our opinion should be taken to cast doubt on longstanding 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 or laws imposing conditions on the commercial sale of arms. I mean that's just one sentence and there's a couple other places in there where the court also refers to bans on dangerous and unusual weapons bans on concealed caring for example. And there's not a lot of explanation or discussion of that in the in the court's opinion.

 

Aaron Freiwald: It's just stated.

 

Joseph Blocker: I think there's one reason people assume that it was there you know to win over the fifth vote potentially fourth and fifth vote and not given the same depth of historical analysis lets say that other parts of the opinion are. But the court says look these are OK and that's how people that's how it's been read that's how lower courts have interpreted it. And that paragraph is you know it leaves a potentially big regulatory space that happens to match up with you know what most gun laws on the books today tend to reach dangerous and unusual weapons you know particular classes of persons like felons, the mentally ill. And it's a hugely important part. I completely agree with you hugely important part of Heller it's one of the reasons that we titled our book the Positive Second Amendment: Rights, Regulation and the Future of Heller because they're both part of the second amendment's tradition and they always have been.

 

Aaron Freiwald: So maybe since we've now gotten both of the main components of Heller out. Maybe you could explain this is also a quote from from your new book where you say to oversimplify a bit and you're really talking about just how partisan this issue is. We all know that. Unfortunately there have been far too many school shootings and other mass shootings. And the debate kind of reignites with great passion on all sides understandably when these things happen. But you say to oversimplify a bit liberals must take the law of the Second Amendment seriously. Conservatives must take the Second Amendment seriously as law. So what do you what do you mean by that.

 

Joseph Blocker: Yeah it's a great question. And this is going back a little bit to the sort of earlier passage in the book where we're sort of talking to the extremes and the people who are way on one end partisan or otherwise on this issue. And I would say that to begin with what we're in what we call liberals there wouldn't have to necessarily be political liberals but I think that there are people who really don't appreciate understand take seriously the sort of good faith of the vast majority of American gun owners who themselves you know are law abiding who wish nothing but the best who would if they could figure out ways to reduce gun violence certainly not in favor of you know rampant gun misuse. I mean there is a tendency sometimes maybe among some to just look down on that and I think that's too bad for a very long time. And this is especially true in places like the Academy. People just ignore the second amendment don't really pay attention to it doesn't get the same attention that the First Amendment or the 14th or others or others do. Where for some people it is you know sort of a core part of their identity and something that they care very much about. And I think that's really you know just too bad that liberals would do that some liberals might do that and also counterproductive because as it happens 75 percent of Americans agree with the result in Heller. And you know the individual rights view has taken root. Whether or not it was historically you know part of the tradition it certainly is now. And I don't want to overstate this. I actually think you know looking to the other side a little bit there's a tendency to impute bad faith to all liberals are all gun grabbers. And you know there's always this fear that Obama was coming to take everybody's guns and you know Obama did nothing in his eight years. Other than really loosen gun laws. We had no major federal legislation come through. Now both he and John McCain they were campaigning that summer of 2008 when Heller came down. They both came out and celebrated the result. So I don't want to overstate this that I think people on the left look down on the Second Amendment flipping to the other side. Oh sorry. Was that a question I didn't mean to.

 

Aaron Freiwald: Well no I was going to say that if there is a tendency maybe this is a function of our politics today and we've been in the state of our politics for a while now where you have to demonize the person perceived to be on the other side. You can't have a reasonable discussion in that middle ground or even look to find a middle ground. If you're if you're pro gun no regulation you know is acceptable and if you're for regulations that means you're coming for my guns. And if you're if you're trying to advocate for sensible gun restrictions you know you have to do that by saying the people supporting guns you know are all about you know holing up in some remote area of the country waiting to take down the government.

 

Joseph Blocker: Yeah I couldn't. It's prone to the gun debate in particular and it's certainly not the only example unfortunately but it's really prone to this kind of absolutism so that on one side the one I was just describing there are some who would sort of demonize the Second Amendment and again unnecessarily people who call for it to be repealed or for Heller to be overturned. It's not the Heller decision and the Second Amendment are not the obstacle to gun regulation in this country. Those are political obstacles and on the other side you know if one side sees the Second Amendment as a demon the other sees it as the sort of perfect invincible champion you know which strikes down any kind of gun regulations sometimes you hear people say things like you know quoting from the language of the Second Amendment. What part of shall not be infringed do you not understand.

 

Aaron Freiwald: Right.

 

Aaron Freiwald: That's not right. As a matter of law. That's just not right. So one of the things.

 

Aaron Freiwald: Pun intended it's like a silver it's like a silver bullet against anyone who stands up for any regulation.

 

Joseph Blocker: I hope I hope you don't mind if I use that pun in the second edition of the book because it's totally right. Silver bullet is exactly exactly how it's treated. I mean I guess what we're trying to say is you know you'll often hear people say things like I oppose gun regulation because I support the Second Amendment or vice versa and that is just a false choice. That is a lazy way out. You can make that decision you can be an absolutist but you can't drag the Constitution into it. The doctrine does not demand that choice and Heller itself doesn't make that choice as we were just saying it recognizes both the right and the regulations so if we can do anything to minimize that false dichotomy we'd be we would be thrilled.

 

Aaron Freiwald: So then it does really become as you say a political issue not so much a constitutional issue. For instance and you talk about this the subject of background checks or expanding of background checks background checks which comes up often and you know for some is a nonstarter and for others is you know a no brainer. But I guess what you say is you can talk about whether expanding background checks is reasonable you can talk about whether it's workable. You can talk about other aspects of that idea but from a constitutional standpoint there's nothing in Heller that would make a federal background check law unconstitutional or violative of the Second Amendment right.

 

Joseph Blocker: I think that's exactly right. You know a properly written expanding you know expansion of the current background check system would be perfectly constitutional under Heller. And I don't think it would even be a close case. But exactly as you say there is this sort of division of opinion on that. Now it's not an even split. There are some gun issues gun regulations proposed gun regulations where Americans are 50 / 50 or 60 / 40. Assault weapons bans are in that category. That's not an overwhelming majority but expansion of background checks is one which and we tell the story a little bit in the book where there's just an overwhelming popular support for that. And that's not partisan. That's one of the few things where you find the majority of gun owners the majority of NRA members are in support and overall depends on the poll depends on when it's taken. You know you see support anywhere from 60 up to 90 percent. I mean just imagine anything that 90 percent of Americans agree on. That is just incredible. You know as far as legislation goes. But when they were proposed when there was a proposal to expand the background check system this is the Manchin-Toomey amendment in the wake of the Sandy Hook massacre it didn't even get out of the Senate. And I just thought that was fascinating like how do you how do you not get this one through you know background checks are what keep guns away from people who've been adjudicated mentally ill who have disqualifying felonies. It's certainly a system that could use some help. But you know there have been something like two or three million people who've been caught by the background check system. That is denied access to a gun that they probably shouldn't have had. That strikes me as like something that. Yeah. Let's see if we can you know fine tune this and make it even better.

 

Aaron Freiwald: Right.

 

Joseph Blocker: So what we looked into was well what's the most common reason people gave who opposed it of that whatever percentile that is. And the most common reason invoked Gallup did a poll on this is that expanded background checks would violate the Second Amendment or the right to own guns I think is how it's phrased in that in the poll. And that is the kind of thing we would just love to be able to clear up because again as a matter of law it's just false. That's kind of this misunderstanding of constitutional law infecting the political debate. So if you want to be against background checks you don't trust the government to do them or whatever. That's fine. But you can't short circuit that conversation by just trying to play the second amendment as a trump card.

 

Aaron Freiwald: Or if you want to be just out in the open and honest about being entirely partisan about it and say no I want to be 100 percent with the NRA and with gun owners and I don't accept any limitation on guns. You could make that I guess as a political position. But what you are saying is you know you can't make that as a constitutional position. You can't say that the Second Amendment that I stand with the Second Amendment and oppose therefor any regulation against guns.

 

Joseph Blocker: Yeah it gets used as this kind of like political shibboleth or some kind of just some kind of like a banner instead of you know 27 words in our constitution which have legal meaning and have in the last ten years alone a thousand now cases interpreting and sort of fleshing out what it means and how it applies in practice. And you know if you really care about the Constitution then you care about what it says and you care about what the courts say it says. And you know there's now a lot of room even to argue from within that frame that for example background checks would be unconstitutional. And so yeah that's what we want. This is I guess going back to what we were sort of talking about earlier about taking the second amendment seriously as law. I mean if you want to just invoke I'm a gun rights absolutist up and down fine. You know I can't reach that with a legal argument. But but again you can't you can't make the Constitution the foundation for that. And I would say you know I've talked to a lot of you know people who describe themselves as gun rights absolutists. Usually when you ask some questions about well so would you you know would you say that somebody who's been convicted of a crime of you know terrorism should have an access to an automatic weapon. They'll say No of course not. Like ok well then let's you know let's talk about how far the lines go and you might not agree but at least you can kind see hopefully kind of each other's perspective.

 

Aaron Freiwald: Yeah I'd like to the example I go to often when I get involved in these debates is on the types of weapons you know I say well how would you feel about somebody owning a rocket launcher or a howitzer or a cannon. I mean we don't we don't see people now I think there are probably are people who think hey I should be able to buy a cannon if I want one but I think most reasonable people would say yeah that's not that's not something the second amendment would protect so.

 

Joseph Blocker: Oh yeah.

 

Aaron Freiwald: And we know that there are these parallels with the first amendment. I mean I consider myself to be more on the absolutist end of things when it comes to the First Amendment. But as a matter of constitutional interpretation obviously we know there are limits to free speech. You know there's nothing absolute about it. As far as the Constitution goes.

 

Joseph Blocker: I completely agree on both of those things. I mean you know on the question of you know sort of what constitutes an arm because that's the phrase I mean said the Second Amendment uses that's a hard thing to answer. I mean especially in a world where you know weaponry is much more complex and much more can be much more devastating than what existed in the late 1700s Now that doesn't mean I think this would not be a good argument for a pro regulation person. That doesn't mean that only muskets are protected or anything like that any more than you know e-mail isn't protected by the First Amendment because the framers didn't know about. Like that's not a good argument but it is certainly true that there are there are questions that the Second Amendment has to confront about what's in and what's out. And the speech example that you raise I think is a perfect analogy. There are certain kinds of things that although they involve expression and they can involve a lot of words just don't even ring the bell as far as the First Amendment is concerned. Libel child pornography securities fraud. Like you I'm I'm pretty I consider myself pretty far on the spectrum of being a free speech absolutism I'm an ACLU regional board member. I'm well over there. But yeah that is historically doctrinally the case. That doesn't mean this is not carving out the second amend for some kind of you know second class treatment. That's just how constitutional rights work.

 

Aaron Freiwald: Well let's let's take a look Joseph at how Heller has worked and I know you've you've also looked at this as part of your your academic work reflecting back on the ten years since Justice Scalia's Heller opinion and how this scheme where you recognize an individual right to bear arms. Put aside what arms actually means because that can be debated too. But you have an individual right to have a gun but not without reasonable limitations. And so how has how has this played out over the last 10 years since Heller as cases involving gun limitations and gun rights have worked their way through the federal courts.

 

Joseph Blocker: It's a great question and requires there's lots of different ways to answer sort of different levels of details. Let me start with a very very broad sort of here's kind of overall what most courts are doing at least most federal courts of appeals are doing after Heller. It's basically they're playing what's often referred to as a two part test of the two part. And it's kind of easy to conceptualize I think in like two dimensions. The first is a question of scope like a threshold is this case even within the Second Amendment or not. And there's a lot of things that just like we are saying about libel and child pornography and securities fraud just don't even get in the door as Second Amendment claims. So you know weapons of mass destruction following the lines of Heller felons, people who have been adjudicated mentally ill they just don't fall within the scope of the rights so they can be banned consistent with the Second Amendment. That's sort of the first question and there's really hard and difficult I think issues about how do you draw those lines is it based on history. We can talk about those. But even if you get into the Second Amendment sort of tent there are still hard questions about how much protection are you going to get. Because again as with other constitutional rights there are varying levels of doctrinal protection levels of scrutiny. You know we might say in other areas of Constitution law so in free speech political speech is on the top of the mountain commercial speech a little bit more down in the valley in Second Amendment cases the same thing happens self-protection in your home. The court tells us in Heller that that's where the Second Amendment rights are sort of most acute. The court says that's kind of a top of the mountain.

 

Aaron Freiwald: The strong in other words the strongest protection.

 

Joseph Blocker: strongest.

 

Aaron Freiwald: Protections under the Second Amendment. If you're in your home and a gun is for self-defense that makes sense.

 

Joseph Blocker: That's exactly it. Which I think is what most people think. The court in a later decision described that as the core of the Second Amendment. I think that resonates with most people if it's about self defense. Surely you know your self defense rights are at their apex and the home they're strongest there. But then what if you want to carry your gun into public. You know the need for self defense might arise in a parking lot or on your way to work. How does this sort of track you get outside the door. And this is the area where I think there's still a lot of unanswered questions about you know just how strong does the level of protection get that kind of a map as I think about. It's kind of like a thing about like a topographical map of an island. It's like you're on the island that's step one. Then you got to figure out kind of how high up are you depending on what the the right that's being asserted or the law that's being challenged.

 

Aaron Freiwald: Well one thing one thing I think is one thing is you've looked and I know and I read a write up you did in Vox looking at federal cases all the federal cases involving or invoking the Second Amendment since Heller. I know one thing that you found in looking at those decisions that really underscores what we've been talking about so far the idea that there isn't a an absolute right created by Heller and that we understand there can be reasonable limitations is in those cases where a where somebody has invoked the Second Amendment and argued that it is absolute argued that the gun rights protections in the second amendment are absolute under Heller. Those have failed almost to a one over this 10 year period right.

 

Joseph Blocker: That's exactly right. Actually the underlying project is one I did with my co-author Eric Rubin of NYU Law School and the Brennan Center. And we as you say read or had our research assistants read every single available post Heller Second Amendment case from 2008 until February of 2016 which gave us a lot of data and we asked 100 questions really of every case so we could really dig down on like why are these cases losing and anyway one of the big takeaways is just as you say these cases are overwhelmingly percentage wise losers. Something like 90 percent plus of Second Amendment claims fail. And so the natural next question is well why and some people have asserted well that's because courts are biased against the Second Amendment. They're treating it as a second class right. It doesn't get the same respect as the first or the 14th let's say.

 

Aaron Freiwald: Joseph give us when you say second amendment claims and they're failing at these rates. Give us an example of what that claim looks like so we understand that.

 

Joseph Blocker: Sure. So you know there's lots of different ways a person might raise a second amendment. What we call second meme a claim or second amendment challenge so here is one. This actually describes a quarter of our entire dataset. There is a federal law that prohibits people who've been convicted of a felony from possessing a gun. So if you've been convicted of a felony then you cannot have a gun under federal law. And that includes a lot of people including some have pointed out Martha Stewart who might not seem that scary but you know that's what the law is. Now a lot of those people who've been convicted under that law for let's say possessing a gun they weren't allowed to have argued this violates my second amendment right. You can't keep a gun away from me. I have an interest in self defense and so on and so forth. And those claims are almost universally losers because as the Supreme Court said again this is just quoting from Heller nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons. I mean that right there is pretty much on point. So those claims again overwhelmingly fail. And that's what we consider second amendment claim or challenge the argument that the Constitution doesn't allow you to keep this gun out of my hands or for me to carry this gun in this place in a particular place. And a lot of the failure rate can be attributed to those kinds of frankly weak bad claims bad arguments. Now a criminal defendant has you know incentive to throw out as many arguments as possible. You know within some reason. So it's not surprising that you know a felon would make that argument and 20 others. But the fact that it's failing isn't really tell us anything about whether the Second Amendment is being under enforced or disrespected or anything like that.

 

Aaron Freiwald: So where then do you see what types of Second Amendment claims from from the analysis that you did do have a better chance of success. Where is the real tension then in the law as courts are dealing with it over the years since the Heller decision.

 

Joseph Blocker: I think that the area where we see the most sort of methodological and substantive division is on restrictions on public carry. So what these laws are and they may differ in different places they look different but you know in some areas of the country not all but in some areas of the country in fact actually I should say not many areas of the country. You have to do something like maybe show good cause in order to get a permit to carry your gun in public. And what that good cause means varies from place to place. You know it might mean you have to show you live in a high crime area or mean even more than that. People often challenge those laws saying you know look the second amendment is you hear this line often the second amendment is the only license I need. I don't need to go you know ask some government bureaucrat to give me a license to which the response usually is. Well you know all that's being asked here is that you basically demonstrate you have some connection to this self defense interests that underlies the right. Anyway courts have divided a little bit on the constitutionality of good cause restrictions. The vast majority of them have been upheld. The D.C. Circuit in a case like this has decided maybe two years ago now went the other way and struck down the districts good cause restriction that good could cause requirement which was maybe a little more stringent than most. I think that's where we see not only the most division but sort of the maybe greatest likelihood of another grant of review from the Supreme Court because we do have a little bit of a circuit split there.

 

Aaron Freiwald: I was going to say Could you see regional differences in this. I mean Texas is going to look at the right to carry very differently for a whole variety of reasons than Massachusetts or New York or Illinois would. I would think.

 

Joseph Blocker: I think that's 100 percent right and I should say I've written on this separately actually an article called firearm localism in the Yale Law Journal I think from 2013 made the argument that that has always been the tradition of gun regulation in the United States is to do things differently in different places and particularly to do things differently in cities as opposed to in rural areas because the sort of phenomenon of guns is just different in different places. In cities is really where the costs are concentrated and where the benefits are much fewer because you don't have access to hunting recreational shooting that kind of thing if you're in the district if you're in New York if you're in Philadelphia. Those are not things that are available to you. On the other hand you are much more likely to be a victim of a shooting in a city than you are in a rural area. So it wouldn't at all be surprising to have more stringent gun regulations and frankly you know a second Amendment doctrine that recognizes that. One of the examples I always give here is the example of the sort of famous cow town the Wild West hounds of Dodge City in Tombstone Arizona had like gun regulations that would make the Brady Center blush. I mean you are you are required to check your gun when you entered town which you know again not even the district really goes that far. So we have that tradition you know to the degree to which it will be you know still vibrant is it a little harder to say.

 

Aaron Freiwald: Well and then of course the challenge we face going forward on this and you do talk a lot about this and we've mentioned it is just the partisan nature of this particular debate. And what I what I really like about what you've set out in the book and again we'll put a link up too so people can know how to get a copy of it to learn a whole lot more about this. But there really is a playing field here that everybody can get on and have a reasonable conversation about gun restrictions. But as long as we're you know in this shouting at each other place you know we're not on that playing field we're just standing on the sides shouting at each other. But if you look at it if you look at the Second Amendment you understand what the Supreme Court did in Heller. There really is a way to have a reasonable rational conversation and balance these things and everybody can feel good about it. I hope that happens.

 

Joseph Blocker: I have my fingers crossed and I hope that when people do that if they do that and hope they will they'll feel that they're not alone. They're there with the Second Amendment. That's where the Constitution is. It's in the middle on this issue. I mean I don't like thinking about just in terms of you know of one side of the spectrum to the other but the law the history the tradition of the Second Amendment including as reflected in Heller is there in the middle. And in that it recognizes an individual a fundamental individual right to keep and bear arms for private purposes like self defense. We've got that definitely and courts strike down laws that you know go too far in restricting on restricting the ability to exercise that right. And also you have access to regulation and that's part of the constitutional tradition as well.

 

Aaron Freiwald: Well it it's fascinating to me that this this really groundbreaking decision comes out of the Supreme Court at a time when so many people refer to the Supreme Court is so split and so partisan and so political. But this isn't really about that from this court. You get this balance and it really isn't about left right liberal conservative or anything. It's really a balanced approach. And there it is it's ready it's ready to be taken up.

 

Joseph Blocker: I would say that the holding of Heller at least encompassing both that right and the regulation is something that is consistent with the party platforms of the Republican Party of the Democratic Party. And with I would I would venture to say that the majority of Americans I mentioned earlier three court three quarters American supported the result in Heller when it came down on the individual rights point and also mentioned and just to reemphasize an overwhelming majority of Americans apparently support background checks. That means there's overlap of the people who believe in the right and believe in regulation. And lo and behold that's where the second amendment is. So you might not feel like you're with the NRA and you may feel like you're with the Brady Center or you know groups on the other side but you probably you might have the Constitution with you.

 

Aaron Freiwald: Joseph Bloch constitutional law professor constitutional law professor at Duke University Law School and the author of the recently released book The positive Second Amendment great conversation about the Second Amendment where we've been and where we are today. Thank you so much for being on the program I really appreciate it.

 

Joseph Blocker: Thank you so much for having me.