The Supreme Court’s interpretation of the Second Amendment has changed significantly over the last 20 years. Rulings in cases like DC v. Heller in 2008 and New York State Rifle & Pistol Association, Inc. v. Bruen in 2022 recast the “right to bear arms” in a new legal framework that makes it more challenging to create effective firearm regulations. On this episode of Policy Outsider, we speak with a New York State legislator and a political science scholar about constitutional originalism—the theory underlying aspects of these rulings—and the practical considerations of legislating in the complex legal environment created by the Court’s decisions.
Guests
Transcript was generated using AI software and may contain errors.
Joel Tirado 00:04
Welcome to Policy Outsider presented by the Rockefeller Institute of Government. I’m Joel Tirado.
The Supreme Court’s interpretation of the Second Amendment has changed significantly over the last 20 years. Rulings in cases like DC v. Heller in 2008 and New York State Rifle & Pistol Association, Inc. v. Bruen in 2022 recast the “right to bear arms” in a new legal framework that makes it more challenging to create effective firearm regulations. On this episode of Policy Outsider, we speak with a New York State legislator and a political science scholar about constitutional originalism, the theory underlying aspects of these rulings, and the practical considerations of legislating in the complex legal environment created by the Court’s decisions. Our guests are New York State Assemblymember for the 13th District Charles D. Lavine and Robert J. Spitzer, a distinguished service professor emeritus in the Political Science Department at SUNY Cortland and a member of the Rockefeller Institute’s Regional Gun Violence Research Consortium. That conversation is up next.
Joel Tirado 01:22
You right. Assembly Member Lavine, thanks for joining us. Thanks for the invitation. And Bob, thanks for joining us today. Yeah, you’ve been a consortium member for many years. So good to have you on the show. Good to be with you. So Bob, I want to start with you, as we work to as we work to sort of lay the groundwork for understanding what it’s like to legislate firearms. I think we kind of need to go back a little bit and talk about this word originalism, and what it means and how it connects to the Second Amendment.
Robert J. Spitzer 02:05
Sure, originalism is a relatively new constitutional framework, or way of thinking about how to interpret the Constitution today. It really developed in the 1980s and it’s based on what seems to be a very simple idea, that the way to interpret the Constitution today, the way judges and lawyers and others should view the Constitution and apply it today, should be based on its original intent or original meaning, or fixed meaning, or what’s called the public meaning, what did the document mean back in 1789, when it was written? And the simplicity of that idea conceals the greater complexity of trying to do that, partly because it’s not so easy to figure out what exactly the framers had in mind back in 1789, and as a matter of fact, they had a great diversity of opinions about things. There were many questions that they didn’t know how to resolve, and so they deliberately wrote in the Constitution and the Bill of Rights in fairly vague terms, although the Bill of Rights are, for the most part more specific, and there are other sorts of issues like this, but originalism as a concept has really taken hold in American law. Today. The Supreme Court has clearly five or probably six of the nine justices who are adherence to originalism, and the idea is the sort of noble idea behind it is that that those interpreting the Constitution don’t want to allow current sort of policy controversies to interfere with what the original meaning was, and this has been embraced by conservatives and it has been highly influential in many, many areas of constitutional law, including pertaining to the Second Amendment’s right to bear arms. And one of the ironies is that his it has led to a new interpretation of the Second Amendment that really is not how and why the Second Amendment was written and added to the Constitution back in 1789 because the constant the Second Amendment, as we all know, says that 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. And when you look back at the original debate in the first congress in 1789, when James Madison offered a package of amendments that became, after they were winnowed down and edited, that became the first 10 amendments to the Constitution. All of the discussion about this amendment pertained to military and militia matters as the late. Chief Justice Warren Burger once wrote, The best way to understand the Second Amendment is by beginning it with the word because. That is because a well regulated militia is necessary to the security of a free state. The right of the people to keep an environment shall not be infringed. And that sort of militia based understanding was endorsed in at least two Supreme Court cases going back to the early 1900s and late 1800s when you examine how the history of the amendment was considered back in the 1800s and into the 1900s the militia view was the view, essentially, but then in 2008 the Supreme Court issued a very important decision, and controversial decision called the Heller decision, in which Justice Antonin Scalia wrote a majority opinion, and he confirmed that he was an originalist, and he relied very heavily on history to reach the conclusion that the Second Amendment, well, maybe it was about militias, but that centrally, it was about the right of average people to have guns for their own personal self protection in their home. And that’s how the court ruled in 2008 now, historians and legal historians were almost unanimous in condemning the decision and saying that he got the history all wrong, and this is one of the objections to originalism, which is some people say. Many say that, well, the courts and judges aren’t necessarily very good at doing history, and they seem to come up with conclusions that support their ideological point of view, more than purely what the law seems to say. But the court changed the law 2008 and we’ve had a couple of other decisions from the Supreme Court since then that have endorsed and even broadened this individual rights point of view of average people to have guns for personal self protection, not only in the home, but from a Supreme Court decision in 2022 the right to carry a weapon, a firearm, with you out in society for personal self protection, and that kind of leaves us at the present moment. And
Joel Tirado 07:09
that 2022, case being the Bruin case, right? That
Robert J. Spitzer 07:13
is correct, which was a challenge to New York State’s pistol permit law. The Supreme Court did not strike down the entire law, but struck down the relevant portion that gave local officials great discretion as to whether to grant a pistol permit or not.
Joel Tirado 07:28
So the DC V Heller case introduces this kind of conflict of originalism with reality. But what? What else was the ruling and DC V Heller. About the DC
Robert J. Spitzer 07:43
versus Heller case from 2008 was a challenge to the District of Columbia’s local handgun ban, essentially, which barred residents of DC from keeping working handguns in their homes. It was very strict law. Ironically, when it was written in the 1970s the National Rifle Association helped write that law. And of course, the NRA moved further to the right shortly thereafter, and the fellow named Dick Heller challenged it, understanding that the District of Columbia is governed directly by the national government. It’s not a state like the other 50 states. So it, it was a case the Supreme Court wanted to hear, and in a five to four decision, they ruled that Mr. Heller had a second amendment right to have a handgun working handgun in his home for personal self protection, and said that that was right that extended to people generally, and they focused on handguns, because the main reason that people acquire or own handguns, they say these days, is for self protection. And there’s much writing and controversy about whether it actually serves that purpose, whether people are actually safer owning handguns or not. And there’s a lot of research that says, well, you’re really not, but be that, as it may, the Supreme Court saying that this is a now a second amendment right, and I should just add that doesn’t mean that gun ownership before 2008 was illegal, or that self protection was not a legal principle in the law. I mean, the idea that you have a right to defend yourself from grievous bodily harm or even death is an old legal principle that goes back to the Middle Ages, that was well established in the common law. So the idea of personal self protection, even using a gun, already existed in the law, just not under the Second Amendment, but now the court is wrapping it up under the umbrella of the Second Amendment, and then two years later, I should add in another Supreme Court decision, also a five to four decision. The court applied that to all of the states through a process that’s called incorporation from a case coming out of. Illinois so that it as of 2010 this second amendment was incorporated or applied to the States, as most of the rest of the Bill of Rights has been so.
Joel Tirado 10:10
Assembly Member Lavine, I want to bring you into the conversation here now, because this, you know, this is, this is your job. How do you keep the people of New York State safe, and specifically from from firearm violence and as much as you can. And you know, how do you design legislation that factors in all of these realities and and changing realities, from from federal regulation and interpretation of the Constitution, how do you and how does your your staff, how do you approach that issue?
Charles D. Lavine 10:51
So it’s no secret that far fewer gun deaths occur in states with strong gun safety regulations, and far more occur in states with lax gun laws. This is certainly compelling, because guns are the leading cause of death for our kids, age one through 17, with very few of those deaths being accidental, and most being either murders or suicides. Under Heller, the Second Amendment protects an individual right to possess a firearm, unconnected in any way with service in a militia, and it authorizes the use of firearms for traditionally lawful purposes, such as self defense within the home. Justice Scalia, who wrote the decision also ruled that the Second Amendment is not unlimited. In New York, we have a codified right to self defense that provides that an individual can use physical force the amount depending on whether they are in imminent harm from another using force unlawfully. While I don’t sense that Heller is going to dramatically alter the substance of our self defense laws in New York State and perhaps nationally as well, I am fiercely concerned that Heller will open the floodgates to a dramatic increase in the proliferation of firearms, and that means more and more gun deaths. Both Heller and Bruin offer nothing specific at all with respect to how the how that state and federal firearms regulations can protect our people from gun violence, thereby creating a vacuum. And as the ancient Greek philosophers knew, politics like nature abhors a vacuum. My concern is that this vacuum is going to be filled with legislation making it easier to acquire firearms. The more the more unregulated guns in America, the more gun violence we will be forced to endure, and the more children’s funerals we will have to attend,
Robert J. Spitzer 13:08
I might just add, if I may, that under the Heller standard from 2008 there was a great wave of challenges to gun laws that have been upheld as constitutional earlier, but the vast majority of those laws were upheld. And since the Bruin case from 2022 which widened the Second Amendment constitutional right for average people, there has been a new flood of challenges of all manner of gun laws. And so far, those laws, even at this point, have been upheld. But it’s pretty clear that at least some of the justices on the Supreme Court have been unhappy with that outcome. Yet, in a in a decision last year called The Rahimi decision, the Supreme Court, for the first time, upheld a gun law despite a challenge, relying on the standard, the evaluative standard that is set out in the Bruin case of are there old gun laws that are similar to the modern law being challenged? So that was at least an indication that most of the justices do see a line where they’re not just going to strike down any all and all gun laws, but it has certainly opened the floodgates to challenge gun laws that have long been considered constitutional and that make good sense, arguably, as a matter of public policy. And what’s the point of a constitutional law doctrine that simply ignores what good public policy is,
Joel Tirado 14:41
yeah, I know the team here at the at the institute, the consortium, was following the Rahimi case, which concerned domestic violence, right? Bob, I don’t remember the details. I tend to leave it to the experts to remember all of the details. But I think court observers were a bit surprised even that the Supreme Court upheld that decision.
Robert J. Spitzer 15:08
Yes, it was a challenge coming out of Texas, of a man who was extremely violent and owned several guns, and he fired the guns in public and he threatened his girlfriend, his woman friend, with bodily harm and worse, and he was deprived of his guns under a federal law from the 1990s that says that if you’re under an order of protection for domestic abuse, they take your guns away, and there’s an evaluation goes along with that. And this was challenged by Rahimi, this fellow from Texas, and interestingly enough, the Supreme Court upheld the the law by an eight to one vote, and the one dissenter was Justice Clarence Thomas, who actually wrote the majority opinion in the Bruin case from 2022 so he laid out the standard that the court accepted in 2022 yet he was the lone dissenter two years later when they applied that standard. So that was kind of a an interesting moment, a sort of a head scratcher, and the court accepted two all types of laws as appropriate analogs to the modern law that was being challenged, because back in the 1700s and special and early to mid 1800s spousal abuse was not expressly prohibited in the criminal law, although there were protections for women. So it showed that at least there was perhaps a way through this path that the Supreme Court has made pretty difficult because their criteria are still extremely vague.
Joel Tirado 16:49
Assembly Member Lavine, I do want to get back to this, this question now that there is this, this framework, you must be designing legislation, you must be thinking about legislation in terms of its viability to stand against legal challenge.
Charles D. Lavine 17:10
Yes, Joel, but before I go into that, there’s some irony here, great irony in the sense that when Justice Scalia wrote Heller, he made a point of expressly referencing the fact that the Second Amendment is not unlimited. I am not so sure he anticipated Bruin. However, I do know this. I was at a seminar several years ago, and Hofstra law school is a great professor of constitutional history. Leon Friedman told a story about his encounter with Scalia after Heller was written. And they knew each other. They were friends for many, many years, and Friedman asks Scalia, what did you do? You’ve opened up the floodgates here. We’re going to be full of gun violence. And Scalia just looked at him and responded with one of his favorite sayings, which was Leon please, I am not a nut. I am a textualist and a constitutionalist. I am not a nut again. The irony was that he wasn’t around to participate in 2022 because he had died during the Bruen decision. But in terms of what legislators have to be aware of, and when we draft new bills, Heller and Bruen force us to focus on justice Thomas’s historical analogical test, Bruen abruptly overruled long standing precedent that combined textual and historic analysis with due considerations of contemporary benefits, decreeing that the Second Amendment law must be based exclusively on the text as understood by the founders and by the drafters of the Civil War amendments, problematically and possibly impossibly, if that’s an expression, possibly impossibly, modern day legislation must now be built upon analogous regulations from those long ago eras, we are now forced to abide by this odd originalism by analogy approach, in spite of the glaring fact that Bruins analysis of the historic record is intensely suspect, and Here I am being very diplomatic, probably too diplomatic, while neither judges or legislators are historians trained in original research, although parenthetically, I was once a student of professor Harvey Goldberg at the University of Wisconsin, we will now have to draft gun safety bills with a supporting historic justice. Specification, we’re going to have to make sure that our bill language is narrow and that supporting memoranda and our floor debates are carefully prepared to reference historic precedent, precedence. Danger, however, is now present an example of the dangers New York’s Scott J Beagle, unfinished receiver law outlaws ghost or homemade weapons in New York, I wrote that bill, and I’m very proud that Governor Hochul signed it into law. It’s named after the hero teacher who sacrificed his life to protect his students at Marjory Stoneman Douglas High School in Parkland, Florida in 2018 his mom, Linda, is a leading advocate for gun safety legislation, and she is a dear personal friend. But because homemade weapons were not unlawful in 1791 or in post Civil War America, I anticipate that someone could challenge that law on Bruin grounds, and I have more fears. For example, the Gun Control Act of 1986 mandating that firearms be serialized, could face a Heller Bruin challenge. After all, was serialization required and regulated in the late 18th or mid 19th centuries at risk as well are laws like the National Firearms Act of 1934 which included significant regulation on civilian ownership of automatic weapons and the 1986 Firearm Owners Protection Act, which banned ownership of automatic weapons built after its passage, these laws were enacted to regulate firearms For the purpose of public safety. Let’s go back to 1934 the era of Bonnie and Clyde and Al Capone, and because of technological advancements. I don’t know whether anyone remembers, but there is an iconic photo of Clyde’s bar is Browning Automatic Rifle and the widespread utilization of Uzi sub machine guns by drug cartels in the 1980s rising rates of gun violence resulted in the law requiring serialization. It’s not easy to tell if any of these long standing laws are going to be struck down, but it seems clear that the High Court is seeking to significantly gut the kinds of actions that states can take to regulate the proliferation of firearms. So whatever we do is going to have to be carefully done in very small bites. The Supreme Court has pigeonholed legislative bodies nationwide. There’s now only a very narrow window of time in which we can look to find analogous firearms regulations, and those regulations could well have been intended, and likely were intended and had to have been content, intended to cover smooth bore muskets. I have no doubt that regulations existed in some context historically, but identifying ones that could have potential utility will become increasingly difficult and challenging, especially if those historic regulations were targeted at weapons that could be fired at most, at four rounds a minute. So we have our work cut out for us.
Robert J. Spitzer 23:18
I think Chuck makes extremely important point about how this standard is and is or might be applied. And I would just make 2.1 is that the analog standard that came out of the 2022 Bruen Supreme Court decision has led courts to come up with diametrically opposed conclusions about what are and are not appropriate historical analogous gun regulations. And that’s that illustrates the fundamental problem with this standard from the Supreme Court and legislators like Chuck and many others are, you know, trying to struggle with what the court is actually saying, meaning and how it applies. But the second thing is that as an academic, I’ve been researching old gun laws for over a decade, just because I found it interesting, and because these old laws are becoming available digitally. And to my astonishment, I’ve discovered that there were literally 1000s of old gun laws from the very earliest times that European settlers landed on these shores, in the 1600s and for our first 300 years, 1000s of gun laws of every imaginable variety. And I’m continue to be amazed at the variety, nature and extent of these old laws. And frankly, I don’t think that people like Justice Scalia and our and perhaps Justice Thomas expected this to be the case, because most people, when they think about the past, think about the Old West and pioneers, and that everybody owned guns, that there were no gun laws, and that the idea of gun laws and gun regulations really. It cropped up only in the 20th century, which was my impression, because I grew up on old cowboy movies and Western and pioneer movies and the rest, just like everybody else. But in fact, there were tons of laws. In fact, they were one of the very first things that leaders enacted as the continent was settled by people from the east, so that, I think, provides kind of a floor that suggests that even though the standard has a wealth of problems, in fact, there is an extensive gun law passed, and in many respects, firearms were more heavily regulated than America in the first 300 years of this country’s history, than in the last 30 years, when many gun regulations have been repealed in many places,
Charles D. Lavine 25:48
Bob is Bob is right. And this is part of, I believe, a larger context, and that context hinges on the question, who will write history. And if history is written by the winners, and there are political people who believe that notwithstanding what the reality of history is, then we are in danger, and there is a larger effort to whitewash much of our history. And to me, and I haven’t actually researched this at all, but it seems as if the historic analysis requirements in Bruen hinge on that same question, or touch on that same question. History is written by the winners, but history is actually written all the time by everybody. So this is now the historic analysis, the historic analysis, which is actually kind of fascinating and very dangerous at the same time.
Joel Tirado 26:50
Well, not to make light of this important issue, but you know, does this mean a payday for historians? Are, you know, are they the money makers now?
Robert J. Spitzer 27:00
Well, there is, there is a certain degree of truth to that. This is a pretty narrow area of history of American political development. I’m a political scientist, and virtually the only political scientist in this mix. It’s mostly historians and some legal, you know, legal scholars. But more people have become involved in this research, and, of course, providing information to state legislatures, to courts, etc. And I’ve done a little bit of that. So it has brought in academics, but there continue to be disputes about the historical record. Because you know that people do history and continue to do history because it’s kind of a moving target, and people are always discovering new things, and that’s proven to be the case when it comes to old weapons laws too.
Joel Tirado 27:52
So you know, we’ve kind of rounded ourselves into a nice spot here. I think this is a good overview of how we got here, and the challenges of legislating in the space, especially with recent, you know, recent being the last 15 years, rulings, any last thoughts on sort of where we go from here, or anything that you feel this conversation missed before we sort of wrap up,
Robert J. Spitzer 28:20
I would add just one thing, which is there was an old concept in the law. It was one of the most important principles that we saw in America. Came from Britain, 1600s 1700s 1800s of protecting the public peace, protecting the fundamental lives, health and safety of the nation’s citizens. This was one of the very highest priorities of legal scholars, of lawmakers, and that principle is no less important today, but originalists don’t seem to pay much attention to that underlying principle, and it is every bit as important as any other constitutional principle pertaining to the Second Amendment or anything else protecting the public’s lives, health and safety, fundamental purpose of government. And our forebears, our country’s leaders from hundreds of years ago, held that in the highest regard. And my question is, will our leaders in the future hold it in similarly high regard?
Charles D. Lavine 29:28
When I practiced law a long time ago, I was once assigned to advise not represent a guy charged with a very serious crime, and he decided he was going to represent himself. So the judge ruled that when he testified, he had to ask himself the questions and then answer them. Guy took the witness stand, takes a deep breath, and he asks this question, how did you get in all this trouble in the first place when we talk about. But what to me is the bizarre history of Heller and Bruin. The answer to how we got into all this trouble in the first place is readily apparent. It’s every bit as obvious as the proverbial elephant in the room, and that elephant is what is, to me, the myth of originalism. Originalism is Original Sin is that it is a contrived, artificial, fake, anti historic manipulation, manufactured to gut, to eviscerate the viability of our Constitution, and it was only developed a few years ago. This is not something that’s from time immemorial. The Founders intended the constitution to be living and organic. It embodied their aspirational philosophy and their hope for America’s future. Contrary to justice, Scalia’s quip that the Constitution, this is what he used to like to say, dead, dead, dead. The founders were not about to mute quote mutually pledge to each other their lives, fortunes and sacred honor, writing a simple last will and testament. By the way, the original document. In the original document, they capitalized lives, fortunes and honor. Originalism is a type of fundamentalism. Everything is either black and white, there’s no gray, there’s no nuance. It is, to me, a perversion of the constitutional history, not only our own American constitutional history, but the historic reasons for having constitutions in the first place. Our Constitution is a product of English common law, which included considerations of natural law, and it’s also the product of the Enlightenment, which elevated science and reason over suspicion and ignorance in order to advance individual dignity, parochial and blindly orthodox originalism denies natural law, and in so doing, not just disregards, but consciously and intentionally rejects what is at the very heart of what the founders wanted, the protection of human dignity. The constitution is the heart and the soul of our nation. It’s true that Scalia liked to say that the Constitution is quote, dead, dead, dead, unquote. If that is true, then it’s time to prepare America’s obituary. And we, my friends, you and I, and that is we, the people, are not going to let that happen.
Joel Tirado 32:40
Thanks again to New York State Assemblymember Charles D. Lavine and Regional Gun Violence Research Consortium member Robert J. Spitzer for sharing their perspectives on originalism and the current legislative environment for firearm regulations. If you liked this episode, please rate, subscribe, and share. It will help others find the podcast and help us deliver the latest in public policy research. All of our episodes are available for free wherever you stream your podcasts and transcripts are available on our website. I’m Joel Tirado; until next time.
Joel Tirado 33:20
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