09 - The Second Amendment

Speaker 0 00:00 So today we're going to continue our series on the bill of rights. This is the first 10 amendments to the U S constitution. Last week, uh, or our last episode, rather, we talked about the first amendment, which included, uh, religion, speech press, right to assemble this week the amendment we're talking about, it's a little more focused and uh, that's good because this is a pretty contentious issue. So join us today on an incomplete history while we take a di deep dive into the second amendment of the us constitution. That's the one about guns. Speaker 1 00:33 <inaudible> Speaker 3 00:54 hello and welcome to an incomplete history. I'm Hillary and I'm Jeff. Where are your hosts for this weekly history podcast? Speaker 0 01:03 So, uh, Hilary, we're drying out here. Speaker 3 01:07 Congratulations. I heard you got a deluge. Speaker 0 01:09 We had a rainy Thanksgiving. Wow. It was rainy, like crazy rainy, like rainy for anywhere in the country. Speaker 3 01:19 That's what I heard. And you guys are still alive and doing okay and I'm, I'm very proud of you because I know it can shut down the whole city. So we moved out here in August and I thought our backyard. Oh my gosh. It's so beautiful. It's like a jungle out here. Um, it's so shaded. It's so beautiful. And I counted 12 different trees on the property and I have to say that there's a lot of leaves, lots of leaves fall off at 12 trees, like are buried in leaves out here. And we've been like raking, raking, raking and nothing seems to happen. It doesn't even look like we did anything. But that's the situation. Like I guess it's kind of weather related out here, but we're just absolutely buried in leaves. Speaker 0 02:04 So today's the second amendment. Some people have very strong opinions on this. Think I kind of was informally talking to some colleagues and students and things about it and a lot of them just didn't really have a strong opinion one way or the other. But when I found somebody who had an opinion, if you had an opinion, it tended to be a strong opinion. Speaker 3 02:32 Okay. That's fair. Cause I did <inaudible> Speaker 0 02:33 so I would say either you don't really care or you really care one way or the other and there doesn't seem to be many much in between. Um, which is interesting. But let's, I mean just to catch people up, the second amendment has to do with the right to bear arms. So let me just kind of read really quickly the language from the constitution. Speaker 3 02:53 I want to read it too, cause we have to read it multiple times because it's a horrible sentence that makes no sense. But you do the first, well why don't you read it once you read it first. Okay. So it 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. Stupid sentence. What a stupid sentence. But there's a calm after state. Okay. I had a pause. I had a comma out. You don't say comma the right of the P when I read that last week. Remember? But this makes no sense. Speaker 0 03:34 Well does the comment help clarify it? Speaker 3 03:38 Not to me. No. I mean, so let's read the first part of it. Makes sense. Speaker 0 03:45 A well regulated militia being necessary to the security of a free state. And you would expect it to say is something, something something, but it does not. Right. Period. Right, right. Well regulated militia is necessary. Yeah. We're on the same page, right. Of the people to keep and bear arms shall not be infringed. Speaker 3 04:11 Thoughts and they mean the exact opposite thing in my opinion. Speaker 0 04:16 Uh, maybe, I mean let's, let's travel back, uh, to England, back to the glorious revolution. And let's talk about, let's start to, very good. Yeah. Let's talk about the glorious revolution and this Speaker 4 04:36 perfect. Speaker 0 04:36 The bill of rights is kind of re-imagined in England and 1689. And what that says, because I think this'll give us a little bit of clarity and I know people are like, well, no, just talk about America. And it's like, well, you know, but you've got to understand the background because the bill of rights as we talked about last episode, it's not coming out in a vacuum. A lot of hitters responses to stuff that happened in England. Um, but I think for the second time in particularly, it's not just stuff happening in England, it is colonial Americans, particular engagement with events in the, in the colonies combined, right? I think it's, it's multiple things functioning here. It's their location on the periphery of an empire in a place that's not all that secure, at least in their minds combined with ideas that come about during the glorious revolution. Speaker 4 05:40 <inaudible> Speaker 3 05:41 yeah. So they basically copied a lot of the rights that come out of the English bill of rights and one of them is the right to bear arms and the, the right though stems out of the glorious revolution, but also just stems from the tyrannical powers of Europe during that era. And so as a reaction to this outright tyranny is what they would say. People wanted to have the right to be able to defend themselves against their own government. And this becomes salient when you really think of specific examples. So one of the, one of the examples that comes up again and again when you're thinking about Europe during the 17th century and the need of people to have maybe weapons in their own homes to defend themselves, um, is the French Huguenots, right? That they're a really good example because, um, you have this group of people, um, who are persecuted in France. Speaker 3 06:45 They're Protestants in France in the late 1680s, um, soldiers would invade these Protestant homes. They would steal from the inhabitants, they would terrorize them, torture them until they either converted to Catholicism or left the country. So these people, these French Huguenots, many of them found refuge in America because we talk about religious persecution a lot. And we talk about the Puritans. We talk about people coming from England. But this other group of people who is fleeing tyrannical government are, uh, Protestants who were fleeing, um, you know, the, the Catholic regimes in France and coming over to America and trying to get away from, uh, this tyranny. And, and this also relates to the third amendment, which we'll talk about at some point, I'm sure, but about the quartering of soldiers of soldiers are just allowed to come into people's houses, steal whatever they wanted, terrorize families. And so the idea of keeping and bearing arms in your home to protect yourself and your family stems from, uh, a very real threat. And that's something to think about every time you consider. Well, why were these amendments brought to the fore? Like why were these even important? I mean, you think about this as the V the second thing that they say that people can do and it's because it's in response to a legitimate threat. Speaker 0 08:08 Right? Well, let's, I mean, let's talk about what the bill of rights in 1689. So this English bill of rights, Speaker 5 08:16 what it Speaker 0 08:18 actually says. So it's talks about James the second. So here you have a Catholic King over a Protestant nation. There are still Catholic English as well, Speaker 5 08:29 but Speaker 0 08:30 there was, you know, the texts that they put in to the English bill of rights. Where is the late King James? The second by the assistance of diverse eval counselors, judges, ministers and ministers employed by him, did endeavor to subvert an extra pate, the Protestant religion and the laws and liberties of this kingdom spelled with an E. Mmm. By causing several good subjects, being Protestants Speaker 0 08:56 to be a star, but at the same time we'd papist. So those are Roman Catholics were both armed and employed contrary to law. And it ends, this whole section kind of ends with it. Say that the subjects which are Protestants may have arms for their defense, suitable the conditions and as allowed by art, by law, something legal scholars who've looked at this have said, what this does is, is say parliament and the King cannot take away your right to have guns to protect yourself kind of. Right. It's very muddy. Right. Um, I mean this whole thing about arms must be as allowed by our law. I mean, what does that mean allowed by law? Okay. Speaker 3 09:46 Well this language, even though muddy, it does have these roots in the 17th century, but that language has continued to be used and was actually used on cited in a Supreme court case all the way in 2008 Speaker 0 09:59 yup. So we're gonna to talk about that, right? I mean this is, I mean this is the thing. So justices on the Supreme court, they, they are much smarter than we are about kind of legal precedent. And they go back and they kind of look at this and they, they consider it important to figure out what influenced the second Amendment's creation. And it's say, okay, if the authors of the second amendment are drawing on the English bill of rights, we need to go back and look what that says. Does this maybe help clarify what's being said at all? It kind of dies because it gives us a situation where you've got a sovereign who's taking guns away from a group of people, but allowing another group of people who use supports to have guns. Right, Speaker 3 10:48 right. So yeah, trying to draw off of that language ends up being important. But like you said, the language itself is difficult to get to the bottom of. And then the language of the amendment as it's written is also difficult because to me, as I said earlier, is like the, the statements kind of contradict each other. So there isn't, you can interpret it either way. And I think that the Supreme court decisions in the 21st century have kind of strengthened the second amendment, but on what basis, I mean, they're going back to the language of the 17th century, but to me it seems unclear still. Speaker 0 11:25 Right? Well, I mean, and then some legal historians and legal scholars have actually argued, look, this isn't meant to, to even address your ability to own a small firearm in your home, that that's something that just kind of is accepted, that this has to do with kind of militia and the militias role. But to kind of get it that we need to talk about the particular situation for English settlers in North America and kind Speaker 5 11:53 of what their lives were like prior to the constitution. So go ahead. Right. So if you're like, if you are a, uh, an English settler in Massachusetts, Mmm. Speaker 0 12:12 Particularly prior to like the King Phillips, uh, Warren and conflicts like that, first of all, you imagine you're surrounded by hostile indigenous peoples. Speaker 5 12:26 Mmm. Speaker 0 12:27 A lot of times that hostility is a result of things you've done. Um, beyond that to the North, you have the French who are Catholic. Now remember if you're in Massachusetts, you're Protestant at this point to this, and then you know, far to the South, you've got the Spanish who were also Catholic. So you probably think you are constantly under assault, right? Or you constantly are under threat of invasion Speaker 3 12:59 and they probably perceived it that way. Yeah. But I mean, I think the more important point there is that there is no standing army, Speaker 0 13:05 right? Then there's no standing army. There's no police you can go to. So who's, I mean, whose job is it when something happens? Oh, we just had this weird boats sail up. What are we supposed to do? Well, there's no police forces, no army to kind of deal with it. So it's left up to the individual people. So the militia is responsible and this is, you know, militias had been a thing back in England. So this isn't anything new, but they really are just kind of left to their own devices. So if you have a, if you have to rely on a militia, it's important. Everybody has a gun. Right. And then everybody would be willing to be called to help if necessary. Speaker 5 13:46 Mmm. Speaker 0 13:49 So if you've got that, but then even after independence, the original articles of Confederation, again don't they actually prohibit the federal government where the government, the federal government from creating a standing army, right? Correct. So this is, you still lead, everybody still needs to have guns cause you've still got to have a militia that can be called up if the situation arises where that might be necessary. Speaker 3 14:26 Well consider too that because there's no standing army because there's no, of course during the revolution there's really no country so to speak. It's a re open rebellion and a country is attempting to be formed. But because there's no real country and no, you know, nothing laid out yet. It's not like you say, okay army, everybody gets together, everybody line up, here's your issued gun from the federal government, right? We bought you all these brand new guns, we bought you these flak jackets, we bought you these flashlights. Or you know, all the things that people get now. And of course some of those things didn't exist. But like when you join the military now, I mean, you get some swag, right? Like you get set up because it's federally funded and it's, it is an standing military, whereas at that time, there's nothing even remotely close to that because there's no established government. Speaker 3 15:20 There's no taxes being collected. There's no infrastructure at the time. And so it is going to be left to the individual to say, you need to protect yourself, your family and your community. And so therefore you need to acquire your own equipment in order to do those things. And you're not fighting against, uh, you know, of course the British military is going to be better armed and more armed because they do have the professionalism and the institutionalization of their military. But you're going to be like kinda Muskett against Muskett Bay in that against pay a net. Like, and we can talk about the implications for this in the 21st century of course, because it's just so that there's disparity between what citizens have and what the government has in terms of, um, protection and in terms of weaponry, but out this time period, I mean there's just, you're not lining up and being issued weapons, like you are responsible for that. And so yes, everybody does need to have a gun. Everybody does need to, um, have access to some form of protection because they're responsible for it. And, but it's all part of a quote. Well regulated militia, meaning that you bring your own equipment, but we're going to do this in an as orderly of a fashion as possible Speaker 0 16:47 that this is it. So here's, so here's an interesting piece. So Alexander Hamilton, so he's a Federalist. So he's in support of the constitution, uh, writes an essay called concerning the militia. And most of the people who signed the constitution have a real issue with a standing army. They don't know whether this is actually a good idea or not, but Hilton says it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the state shall require it. This will not only less than the call familiars military establishment, so that's standing army. But if circumstances should at anytime oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there's a large body of citizens, little if at all, inferior to them and discipline and the use of arms who stand ready to defend their own rights and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army and the possible security against it if it should exist. So again, you've got Hamilton who's backing this constitution, which is this centralized federal government that's going to have the explicit power to raise an army. And he's saying, look, I'm militia. A well-trained militia is a safety mechanism Speaker 3 18:10 with the Federalists versus anti-federalists argument. I mean, so much of it does STEM back from that 17th century fear or they're trying to create this new government and they're trying to create a new society that veers away from what had been happening in Europe. And I think that so many people were afraid of all of the persecution that they had faced and the, they had just this outright fear of government and of, um, you know, militia or of, you know, armies coming in or hurting them or torturing them, whatever, forcing conversion of religion. Um, they experienced just this outright monarchy system that was very heavy handed. And I think that they wanted to retreat from that. And I think they saw that, you know, was going to just cause a huge problem. Speaker 0 19:03 So the federal government is a scary thing, right? The anti-federalists are terrified by it. And even the Federalists, even Hamilton's like, well, we, we kind of need a good bill of show just in case there's internal, Speaker 3 19:19 external threats. I think, you know, you mentioned <inaudible>, Speaker 0 19:23 so we've gone, right. So even after the Paris peace treaty, Britain still exists. Britain's not necessarily going to leave the United States alone. Right. You still got the Spanish Speaker 3 19:38 and still have a lot of indigenous people who they're encroaching the American, the newly formed American government is encroaching still on native lands and there's still a lot of fighting between new American citizens and native people. And there's all this spread into these regions and it's, there's uncertainty and instability. And so there's an argument certainly to be made that like, look, we need to have this quote, well regulated militia to address all of these threats, both internal and external. Um, but there it's still met with a lot of trepidation even by people who were supportive of it just because they don't want to devolve into this system which they were trying to like fight against and get away from. And that makes sense to me. Speaker 0 20:32 Well. Yeah, and I think again, much like last week, I think we can look for a little clarification in those state constitutions that come around the declaration of independence, but well before of the revolutionary war has been fought and resolved like the Virginia declaration of rights section 13 a well regulated militia composed to the body of the people train to arms as the proper natural and safe defensive of free state. That standing armies in times of peace and time of peace should be avoided as dangerous to Liberty. And that in all cases the military should be under strict subordination to and governed by the civil power. So I mean, gets interested in much clearer language. Go ahead. Speaker 3 21:17 That language is much clearer to me, right? When you're looking at a state, um, constitution. And, and to me that goes more toward the first part of the statement of the amendment of like the well-regulated militia part. Not necessarily like every American should have a gun under their pillow. It's not really about that necessarily. It's about, we as a community, you need to have collective security and be prepared and have this well-regulated smaller, um, almost like a security force in place, uh, in order to, to address any sort of threat. And what's interesting though on all this research that I did in preparation for today is there's all this language about, you know, you need to be able to fight against a tyrannical government, but there's never once been an actual support of the people doing that. And we talked really early on in an episode about the whiskey rebellion. Speaker 3 22:18 I mean, we talked about that as this another moment of revolution, this other moment of chaotic, a revolution where things, you know, things weren't consolidated quite yet in the early Republic era and you still had people kind of rebelling in these Western regions and they were doing just that, right? They were taking up arms, um, they were trying to fight the consolidation of government and the consolidation of federal power. And they took up the arms that they had, right? And they were kind of working as militia to get tax payer tax collectors out of their region. But the government puts it down. So there's never actually a support for people to defend themselves and never, I mean there it's, it's written as it should be that way and they, that people should be able to fight against the government. But when have people ever fought against the government and won Speaker 8 23:12 <inaudible> Speaker 0 23:15 well hold that thought one minute cause I want to get to it, but I want to, I want to continue with a couple of these state constitutions first. Cause I think it might help us a little bit because this is the thing. So Virginia is, this is a little more clearly worded than when we get in the constitution and the bill of rights, Pennsylvania's the people have a right to bear arms for the defense of themselves in the state. I mean that's Speaker 5 23:46 pretty, that's pretty clear. And it says there are two reasons somebody has the right to bear arms for the defense of themselves and the state. Mmm. Speaker 0 23:57 Maryland's talks about a militia being well regulated, but it doesn't go as far as Pennsylvania's goes. North is again, echoes that, that the people have a right to bear arms for the defense of the state, which is interesting, right. Does it mention defensive themselves? Defense of this state and a standing armies and time of peace or dangerous celebrity, they ought not to be kept up and that the military should be kept under strict subordination to and governed by the civil power, which is interesting. We get that. Um, New York, Speaker 5 24:37 Mmm. Speaker 0 24:38 Talks about in its constitution talks about their mini Quakers in New York and from scruples of conscious may be averse to bearing of arms be there for the excused by the legislature. So what does that mean? Well, in New York says, it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it. That's, I mean, New York goes further than any of them. I think New York is almost like you have to <inaudible> Speaker 3 25:07 yeah. It's almost like mandatory military conscription in a way. But NC Quakers wouldn't take up arms, but they made them Quakers. They were the ones I need all the guns, so. Right. Speaker 0 25:21 But I mean that's an interesting thing is that that, you know, you've got new Yorkers going in further. Um, Vermont is almost the same language as Pennsylvania, the right to bear arms for themselves and the state and then Massachusetts. So a lot of times us, historians, we kind of point to Massachusetts and Virginia is kind of antipodes right there. They're kind of opposites in this relationship, um, that Massachusetts is Adams and the pure organs, whereas, you know, Virginia is Jamestown and Thomas Jefferson and kind of this rough and tumble place that's much more in if Ilitch mutualistic, but Massachusetts says the people have a right to keep and to bear arms for the common defense. And as in time of peace, armies of dangerous deliver, they ought not to be maintained without the consent of the legislature. And the military power should always be held in an exact subordination to the civil authority and be governed by it. So again, all of these States seem to be in agreement on a lot of things, although some of them go a little bit further in their language. Speaker 3 26:38 Yeah. And I think they're all in agreement for the first clause of that amendment that collectively we should have some sort of community security force that's not a federal regulated standing army but that there is some form of organized attempt to make sure that we can safeguard our community in a much smaller sense and that makes so much sense when you look at the development of the United States and the different state governments and institutions that develop in the early Republic, they, many of them even Federalists do really want to kind of maintain that. You know there is, there is an individual responsibility that then translates to somewhat of a community responsibility but trying to keep things more on the small scale and these state constitutions I think really illustrate that nicely and actually have better language in some cases that clarify what it is that they mean by the right to keep and bear arms. Speaker 3 27:41 But one thing that I'm a little, I kept going back and forth about whether or not to bring it up, but I'm going to bring it up and I don't know, I'm, I want to talk through it a little bit because I don't know how to talk about it without sounding nuts, but let's keep in mind who this was written for. So when you're talking about citizens having a right to bear arms, who are citizens at this time, it's white men, it's white men, right? They have zero intention at this moment when this is written to extend these rights to every single person living in the United States. So they don't want women to be armed, they don't want slaves to be armed, they don't want free free, um, black people to be armed. They don't want indigenous people to be armed. They want to be armed. Speaker 3 28:35 White men want to be armed. So that's just a very small percentage of people that these laws are being written for. And there's zero intention of incorporating everybody into that. And we see Supreme court cases in the late 19th century that illustrate this fact so nicely, right? Is that the Klan was trying to stop black people from getting guns and eventually the courts like no, actually everybody gets to have the guns. Right? But it's kind of a sticky, I think it's kind of a sticky point to bring up because I'm not saying like, Oh, only white men should have guns. Like that's absolutely not what I'm saying. But that was their intention when drafting this. And I think that it's very important to keep that in mind, particularly when we think about the 1960s and like say the black Panthers who were saying, yeah, let's take up arms against the government. And it was like, Whoa, Whoa, Whoa, Whoa, Whoa. No. Right. And so it's important to kind of keep that framed, I think of like what was the intention and for whom was this intended? Speaker 7 29:38 Right. Well, Speaker 0 29:41 so this gets embedded in the bill of rights and we've already talked about how the constitution has kind of reaction to the things you brought up, right? The constitution means things that happened in the whiskey, rebellion, things that happened in Shay's rebellion. Those can't be allowed to happen. And I think this gets to your question again if we'll, why weren't those kind of viewed as legitimate uprisings against the government? And I think it's because you have to have a public sentiment that the government's doing something on just Speaker 5 30:18 Mmm. Speaker 0 30:20 So Noah Webster, um, has a good quote about this. He says, before a standing army can roll, the people must be disarmed as they are in almost every kingdom in Europe. The Supreme power in America cannot enforce unjust laws by the sword because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be on any pretense race in the United States. So I mean, no Webster is, you know, the well-armed militia is a, is a guarantee that the government is not going to try to enact unjust laws. It's going to be a check on that power. Um, and almost everybody who's kind of supporting this is saying something along the same vein, right? That the well armed militia is going to keep unjust laws from actually getting created. Um, Speaker 3 31:15 I think that's such an optimistic view though, right? I mean, I think, yeah, people want to think that, but it's just not the case. I mean, that's not what happens in the 19th century. No. Speaker 5 31:27 Mmm. Speaker 0 31:29 And I mean, the 19th century we get a series of Wars. Um, you know, the, the Stanek federal army becomes, you know, stays around and continues to stay around. Uh, it doesn't go away. Um, but at the same time, it kind of gets normalized for people, right? They don't, they don't generally view the standing fertile army is this oppressor in most places. Although when we get to kind of the 1860s, that changes substantially. Speaker 3 32:07 Well, most certainly after the war of 1812 people do start to say, okay, there is a real value to this. I mean, the British come in and burn the Capitol down, right? So they're like, Whoa, you need some protections that are more stable and formal. Yeah. Speaker 0 32:21 Right. So, you know, we get the civil war and after the civil war, there's this, this first major Supreme court case that involves the second amendment, and it's the U S vs Cruickshank. And it really is a question of what does the second amendment allow me to do as a citizen? Speaker 5 32:48 Um, but Speaker 0 32:54 it's, they basically said the bill of rights restricts Congress. It doesn't, it doesn't apply to individuals. Speaker 5 33:02 Mmm. Speaker 0 33:05 You know, so the, the idea is that the, the second amendment can only restrict the powers of the national government. It doesn't guarantee the right of an individual to own a firearm. It's just the federal government can't take that right away. Um, and the courts, right. I mean, the court says the second amendment has, you know, has no other effect than to restrict the powers of the national government. Their view is local and state governments can do as they choose. Speaker 5 33:38 Mmm. Speaker 0 33:42 You know, which is interesting, Speaker 5 33:47 Mmm. Speaker 0 33:48 That this kind of gun debate kind of in the modern, modern context of, it goes back to this point, right, to kind of this reconstruction or a moment where guns are trying to be controlled. Uh, States are trying to control guns and people are challenging it. The Supreme court's like, yeah, well the second amendment doesn't mean what you think it means. Um, Speaker 3 34:12 well, and people are trying to control guns in the States because kind of what I mentioned earlier is that there, the Klan is very much involved in this case, right? They don't want black people to have guns and so they're trying to restrict who can purchase guns, right? Isn't that this is what this case is about in a way, isn't it? And it falls under like 14th amendment protections if ultimately Speaker 0 34:37 right? So that we get a series of other cases in the eight in the 19th century presser Illinois and Miller, Texas. Um, where it's this, you've got presser and Miller both challenge and say that the States are infringing on their second amendment rights. And both times the courts say, well, Nope, actually not Speaker 5 34:58 right? Speaker 0 35:00 Illinois law, Texas law, the second amendment doesn't apply. Speaker 5 35:05 Mmm. Speaker 0 35:06 The federal government can't make a law, but States can do what they want. Speaker 3 35:13 Yeah. And so what this ends up shaking out to, I mean sometimes you might think, well that's a good thing because you know, the government saying, well no, we're not going to protect everybody to have a gun, but it ends up kind of being a bad thing, especially for African Americans in the South because when you leave it up to the States, then you know, only certain people are going to be able to have this. Right. And I mean it's such a, to me it's such a money topic, right? Because in the 21st century we're trying, you know, we're talking about like, well we need to actually regulate guns and you know, not everybody should have them. Um, and this is not drawn on racial lines in any way. It's just like, you know, people shouldn't have these like, um, certain kinds of weapons and for these reasons. Speaker 3 35:58 Um, but in the 19th century, it's kind of this like civil rights. It was a civil rights issue too. I mean, cause it's like, well, if everybody's allowed to have a gun, then everybody's allowed to have a gun. That's it. You don't get to say who does and doesn't based on race, but then that ends up being what it shakes out to you when they say, well, we'll just let the States decide. And it's like every time you let the States decide, you can color a map and show which States are going to decide what, and it ends up disenfranchising black people in those States. And so it ends up being muddy, right? Because in a way, it's like, well, everybody should have more guns. But I think we're trying to fight against that now a little bit in the 21st century, even though the Supreme court keeps voting to strengthen second second amendment rights, and in the 21st century, Speaker 0 36:48 kind of they do. But I mean, let's go to the case district of Columbia versus Heller 2008 I mean, this is the pivotal case or the second one Speaker 5 36:58 <inaudible> Speaker 3 36:58 and as strengthens the second amendment, I think Speaker 0 37:01 it does, but if you read the majority opinion, Speaker 5 37:06 Mmm. Speaker 0 37:06 I mean, so let's set the thing up. So Washington DC instituted a weapons ban, and this was challenged Rob before the Supreme court. Speaker 5 37:17 Mmm. Speaker 0 37:18 And the Supreme court ruled, you can't do that. You cannot impinge on, on an individual's right to own a gun. So they're actually saying the second amendment gives the individual right to own a gun. But Antonin Scalia in the majority opinion says the following. So this is a very conservative menu. And the Supreme court, a member of the Supreme court says like most rights, the right secure boat by the second amendment is not unlimited, although we do not undertake an exhaustive historical analysis today. The full scope of the second amendment, nothing in our opinion, should be taken a cast out on longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carry of firearms in sensitive places such as schools and government buildings or laws imposing conditions and qualifications on the commercial sale of arms. Speaker 3 38:12 So that's one that's interesting because in one way I think it does strengthen, um, the second amendment and rights to it. But in other ways it starts to limit it by flushing out special circumstances or scenarios. Right. And then that's where we start. I think kind of talking about mental health as related to gun ownership. That's a very first century discussion isn't it? Speaker 0 38:40 Uh, yeah. I mean Heller is kind of the, the opening battle in, in our contemporary battle over gun rights. Right? What is the second member really do? Um, if you're going on kind of legally what the Supreme court has generally believed prior to 2008, the court has time and time again said the second amendment really is only about the federal government prohibiting certain things. It's not about state and local governments. It's only till 2008 that we really get a clear moment where they're like, you know, actually there is this right to own guns that's talked about in the second amendment. But even then you've got strong qualifications on it. Um, and I mean the dissenting opinions are interesting. Um, but I mean we're still wrestling with the repercussions of Howler. Um, so Ruth Bader Ginsburg in an interview, um, said, uh, when we no longer need people to keep muskets in their home, the second amendment has no function. Speaker 0 39:58 If the court had properly interpreted the second amendment, the corporate have said that the amendment was very important. When the nation was new, it gave a qualified right to keep on bear arms, but it was for one purpose only and that was the purpose of having a militia. Men were able to fight to preserve the nation. So this is Ruth Bader Ginsburg. This is her opinion. Now this isn't an official opinion. This is a, a radio interview where she's talking about this, but she has long said the Heller decision is one of the court's worst decisions that she was kind of sitting on the court when it was made. Um, what do you think? Speaker 3 40:32 Well, I think that she's doing her job appropriately because she's interpreting it. I mean, <inaudible> Speaker 0 40:40 you don't think she's a little wrong? Speaker 3 40:43 No, I don't. I really don't. And I'm not someone who's like, Oh, we need to go take everyone's guns away. Like, honestly, I kind of fall on the side of like I'm not, I don't really have a passionate opinion about it to be honest because I grew up in a house that had guns in it. My parents were police officers. Like I'm very used to guns being around, but I think when you look at the amendment, the context of the amendment, why it was written, I think that she's absolutely spot on. Like you had to have a musket in your house to protect your family and to be, if called to service for the country, you would have your own equipment. That's not the case anymore. If you, we have a standing army now you report to the military, they give you the stuff that you need. Right. Speaker 0 41:30 What about individual protection? I Speaker 3 41:34 think it, it's more dangerous to have a gun. I really do. I mean my dad always said I'm not allowed to have a gun because someone would take it from me and shoot me with it. And I think he's absolutely right. I mean, I think there are so many deaths related to like accidental gun discharge, all that kind of stuff where like if you value human life and value, each life is precious. Even one accidental discharge of a gun in somebody's household is too much to me. And I, again, I'm not someone who's like, Oh let's go take everyone's guns away, you know, have as many guns as you want, whatever. But I think her interpretation of it is absolutely spot on because if you're looking at the context historically it's like they had it for a reason. I mean the document was written in a specific context. They never anticipated the 21st century context of having a gun. Speaker 0 42:31 Well, but I mean isn't it fair to say that since those state constitutions are kind of Annecy and so the bill of rights, so we've kind of shown how, especially the Virginia declaration of rights, but the other state constitutions as well kind of form what we end up with for the bill of rights. And those are kind of saying not just for the defense in the nation, but for the defense of the individual. And Ginsburg just kind of ignores that. So she focuses on a thing that I think, yes, you could say, you know, you're not going to take your rifle and defend against an invading army, although you could maybe make an argument for that. But she leaves out the self preservation part of it completely. She leaves out defense of the individual. Granted, that's not explicitly mentioned in the second amendment. The way it finds its way into the constitution, Speaker 3 43:26 you know, that's what she's supposed to be interpreting. She's not supposed to be interpreting state governments. Constitution's about what it says. She is a federal, right? She's on the Supreme court. She is interpreting the second amendment and I will be, I will be honest, it's clearly in the second part of the second amendment, after the comma, the right of the people to keep and bear arms shall not be infringed. It's black and white. There's no in a linguistic sense, there's no two ways about it. That's what it says. You should have a gun if you want a gun. Right. But in my opinion, I think that things have to shift based upon context. And I mean, I think in the context that this was written, it made perfect sense in a 21st century context. I think it's a lot hazier and there have been things over the course of, you know, our country's history. We have changed a multiple accounts, right? We have lots of different amendments to address context and to address, address a moment, um, to fix something that was maybe, okay, well, you know, we need to address something that was not addressed. And this is just one of those things in my opinion where it's just like, you know, I think that we need to kind of revisit this. Um, because Speaker 3 44:53 it's not about having a well regulated militia. And I, and I think what it goes back to for me, and you said the whole thought, but maybe it's time now, it's just what are you going to do Speaker 5 45:06 with a gun Speaker 3 45:09 against say a tyrannical government? And I know you're talking about individual protection and like maybe, maybe that, yeah, maybe if somebody was invading my home, I wish I did have a gun. I don't know. I don't. Right. But I guess, I guess there's two different things at play here, right, is like the protection of the individual, but then also protection against the tyrannical government. There are two separate issues though. They're conflated into one Speaker 5 45:36 amendment Speaker 3 45:37 in a bad, poorly written sentence. Speaker 0 45:39 Um, so I want to bring up one last case. It's a case where the arguments were just heard today, a New York state rifle and pistol association. This is for recording on December 2nd a New York state rifle and pistol association versus city of New York. And the issue, um, and this is a great website. I have to kind of talk about this. If you really want to keep, if you love the Supreme court talking about stuff, you should go to this. It's the SCOTUS blog.com as C O T U S blog.com. Speaker 5 46:14 Mmm. Speaker 0 46:15 The issue is whether New York city's ban on transporting a licensed, locked and unloaded handgun to a Homer shooting range outside city limits is consistent with the second amendment, the commerce clause, and the constitutional right to travel. Speaker 5 46:28 Mmm. Speaker 0 46:30 It's an interesting thing. So New York city, much like Washington D C, um, is doing something that may test the limits of the second amendment. Now the interesting thing is they muddy it with the commerce clause and the constitutional right to travel, which you always, an interesting thing is the Supreme court will oftentimes take the path of least resistance. So they'll rule on something that makes it easy for them to make a ruling but not have to rule on something that might be a little more controversial. So they could just say, new York's skylight in the commerce clause or the right to travel, um, and leave the other issue kind of alone. Or they can kind of take them out. Speaker 5 47:16 Oh, on. But, um, Speaker 0 47:22 I got the transcript earlier today. I have not had a chance to go through it because it is anyone pages long. Um, but it's going to be interesting to see how this plays out. Speaker 5 47:33 Mmm. Speaker 3 47:34 Well, weren't they trying to drop the whole thing though? Because the law had been dropped in New York state. And so they said like, we're not even gonna attempt to go over this because it's already been dropped as an issue within the state. Speaker 7 47:48 <inaudible> Speaker 0 47:48 well it says here, let's shuck. Speaker 5 47:54 Mmm, okay. Speaker 0 48:02 So in September it was set for argument. Um, no, the transcripts, it happened today. So they wanted to, Speaker 5 48:10 uh, Speaker 0 48:13 they wanted to dismiss it, but I guess they didn't because they did hear arguments on it today. I mean, there was a, a definitely a transcript issue today. Speaker 3 48:24 No, they heard it today and I was reading about it, but I think that one of the things was they were like, look, this has already been dropped within the state, so it doesn't really make a whole lot of sense for us to hash this out. Speaker 0 48:38 Right. So their opinion could simply be this has been dropped. Speaker 3 48:42 I think that's, I think that's what it ends up hashing out to you. But we would have to go over the transcript, but it is, it's super timely, right? That's like, we're talking about this and today there is still an argument over it and there will continue to be arguments over what the second amendment means. It doesn't mean, Speaker 0 48:57 right. Well, I mean, they're talking about safely transporting guns. Uh, Alito mentions the second amendment. Would it be consistent with the second amendment for the city, which prohibit any trip by a person holding a premises license to a fire range? I mean, they're definitely talking about some of the issues. Um, it'll be interesting. I, you know, Speaker 5 49:22 Mmm. Speaker 0 49:25 I can't say that. I can't wait to read the transcript, but I look forward to perusing and seeing if there's anything interesting they kind of mention. Um, but I mean, this is a contentious issue and you know, this book comes out that we want to switch gears a little bit. Uh, this book comes out in 2001. Speaker 5 49:50 Mmm. Speaker 0 49:52 Do you know what day it came out in? 2001 discuss. September 11. September 11, 2001. It's called arming America, the origins of a national gun culture. And it's a, uh, Speaker 5 50:06 uh, Speaker 0 50:07 professor at Emory university, Michael Belile. Uh, there's multiple pronunciations of his name. I've yet to find kind of a definitive explanation of how to pronounce it. But in it Belile makes an argument that gun culture as kind of it's presented by the NRA and other organizations is a relatively recent thing that if you go back to colonial America, if you go back to the early Republic, if you go back to the first half of the 19th century, gun culture isn't so much a thing. And what he interestingly does is he uses these probate records to show that guns just appearing in people's belongings after they're dead. And he makes this argument that that's evidence that they just aren't widely held, that a lot of people don't own guns. And this comes out and it's really shocking to people. And Gary wills and the New York times do what people were, I guess it came out in 2000, I guess the paper that came out in 2001, the hardback came in 2000 I am corrected. Speaker 5 51:16 Mmm. Speaker 0 51:18 Well. So Gary Wells in New York times writes about it and this is when the book came out. Belisle has dispersed the darkness that covered the gun's early history in America. He provides overwhelming evidence that our view of the gun is as deep a superstition as any that affected native Americans in the 17th century. Um, congrats Gary on being racist and that sentence. Yeah, he really did. It didn't mean sluggish. Congratulations for going, being gung-ho, pun intended for Belisle, but also being racist against indigenous people at the same moment. Congratulations, Gary. A lot of people initially jump on this. They're like, yes. You know, here's an historian saying something we want to say, which is like, this is a recent thing, but almost immediately it wins the highest awards you can get for a book in U S history. Right? Speaker 3 52:13 It can because faculty jumped all over this book. Like, yes, we finally can fight against the NRA. We can show, you know, that the, you know, this is a recent conception and all this kind of stuff and, and everybody just jumps to it because unfortunately, um, history is often political. And, um, this is such a sad, sad example of how that plays out in a really negative way for the historical community. Right? Because then what ends up happening after the, the band Croft is one and everybody's just so pumped about it. What ends up happening, Speaker 0 52:50 right? Well, pretty soon after the book comes out, some people start to wonder about what's going on. Now some of those people actually get funding from the NRA to investigate the book. And the NRA obviously doesn't like this book. Speaker 5 53:08 Mmm. Speaker 0 53:10 And that's another conversation. I mean, here's the thing, if, if something's fundamentally wrong and somebody you disagree with points out that it's wrong, does that make what they pointed out? Not true. No. Right. Um, but NRA is, is doesn't like this book. Um, so people start to investigate it and you get this kind of famous book review, Speaker 5 53:35 Mmm. Speaker 0 53:36 That gets written. Um, they kind of sums all this up. You've got. So you've got a Stanford professor of law, James Lindgren, you've got some other historians and researchers and polit, uh, kind of legal historians and legal scholars who start to look at this. If people start to ask questions about the sources Belile used. Speaker 5 53:56 Mmm. Speaker 0 53:58 Because one of the things we're supposed to do is when we write something, we're supposed to document the sources we're using so that somebody else can come in and actually, if they wanted to go back and track all those sources down. Right, right. Yeah. And that's not the case in this situation. Well, this is, so what happens is people start to have trouble. Speaker 5 54:22 Mmm. Speaker 0 54:24 Like finding some of the sources Belile talks about. Speaker 5 54:29 Mmm. Speaker 0 54:31 Doesn't he say that like, Oh, there was a fire. Yeah. Well, he claims that there was a fire. Speaker 5 54:38 Mmm. Speaker 0 54:40 And then the heat, no pun intended, um, starts to come up again. Uh, you know, people are like, huh, that sounds kind of odd. Speaker 5 54:50 Mmm. Speaker 0 54:51 So 2000, the book comes out. By 2002, there's this brewing scandal. Speaker 5 54:58 Mmm. Speaker 0 55:00 And then J July of 2002, uh, Emory university. That's where Belile is a professor at the time launches an investigation. And these are the things they want to investigate. And I just want to read this closely. I mean, the question that list is interesting. Speaker 5 55:19 Mmm. Speaker 0 55:20 Question one, did professor Belile engage in intentional fabrication or false allegation of research data in connection with probate records from Rutland County, Vermont question to say, but for Providence, Rhode Island, question three the same but for San Francisco Bay area. Question four, did professor Belile engage in intentional fabrication or fond suffocation of research data in connection with probate records supporting the figures in table one two, his book arming America, the oranges of a national gun culture. And question five, did professor Bilbao engage in other serious deviations from accepted practices and carrying out or reporting results from research with respect to probate records and militia consensus records by a failing to carefully document his findings be failing to make available to others who sources evidence and data or see misrepresenting evidence? Are there sources of data and they cite the American historical association statement of standards in this and it's kind of this pretty dry academic 40 page investigation. Um, but the committee review says he did, like he did all of these things right. He, um, he did not do what he was supposed to do and, Speaker 5 56:42 uh, Speaker 0 56:46 it didn't help awhile that when he was interviewed he was evasive about his sources and things. Speaker 5 56:52 Um, I mean, Speaker 0 56:56 is it because he knows the gigs up? Speaker 3 56:59 Yeah, I mean he ends up resigning as a result of it. I think he absolutely knows. And to clarify really quickly for our listeners, he says that there was a flood, not a fire. I apologize. But, um, no, I think of course he knows that, um, you know, the band Croft prizes were it in 2002 the Jake is up, right? I mean it's, I think he absolutely knows that. And in order to save some face, I mean, cause it's tough to get fired as a professor. But I mean, I think that that was just, the writing was on the wall there. And so I think he had no other choice but to just kind of back out gracefully as possible. Speaker 0 57:39 So I mean, Speaker 5 57:42 he, you know, Speaker 0 57:45 he loses his position as a professor at Emory. So he loses tenure. He loses the Bancroft. Speaker 5 57:53 Mmm. Speaker 0 57:55 He's still to this day contends he did nothing wrong with though. Speaker 3 58:02 Well, I mean, you know, yeah. I think probably would have to try it. Speaker 0 58:07 Well, and he has actually, um, a few years ago, 2012, he came out with a new book, 1877. <inaudible>. Uh, well it's, I mean, you should go and read the reviews. They're kind of, a lot of people don't seem to be aware of who he is. Um, but then every once while one of the reviews is, um, they're like great fiction. Uh, and this is the problem, right? So once you do this, nobody's ever going to believe you guy. Speaker 3 58:37 Well, in the words that came out about him in reaction to discovering this fraud. I mean, so one of the things I would like to point out as people were too quick to jump on this argument that seems to come out of the clear blue sky that in your heart, you know, to be untrue, if you've studied American history, if you know anything about American history, if you know anything about the American Republic, early American Republic, I would be so skeptical of this book. I would like to point out, I was very young when it came out so I couldn't have joined the conversation, but I would have been so skeptical of that yet. They were so quick to jump on it because it served a political purpose. And just want to be clear about that. I mean, I think that that was the really, the downfall of this um, situation is like people were so keen to say, look, we have proof to prove a political point. Speaker 3 59:32 And that, that really clouds judgment because just at the basis of it, it made no sense. And once people started looking into it, um, Roger Lane, who had initially reviewed the book positively in the biggest journal in our field journal, American history. Um, he ends up coming out in the, in the wake of this, and he has some really strong words saying that he's betrayed us. He's a disgrace to the profession. Um, he's breached our trust. And how do you recover from that as a faculty member? I mean, you just can't, you have, you have the biggest journal in the field saying this guy is a total fraud. And I mean, people were using the word fraud to describe him. I mean, it's tough to recover from that. But again, I want to point out like, well, you guys got duped and you should have known better. I mean, a, maybe it's like hindsight's 2020, but it's like, you didn't read that and go, wait a minute. You know? Speaker 0 00:33 Well, so this is the thing. Um, I think this is the issue when you write a history that has an overt political end that you start researching a topic and there's, you have the destination you want to get to <inaudible> Speaker 3 00:53 the archive for the records, cherry picking archive. I won't name any names. Speaker 0 01:01 Um, well it's, there's a book that was that I think there's a lot of good in the book, but I did some research because I want to do a little about more about things covered in the book. And when I went to the archives that does a story in reference, it turns out the story, it had really cherry picked some stuff because it would say one thing in the monograph, but when I turned the page in the sources, it would undermine what was being argued in the monograph. And it was like, I'm glad you looked at page 12, but you should've looked at page 13 and taken that into account as well because I don't think your point would be as strong. And you know, it's in today's culture there's already a trust issue between academics and the public. Speaker 3 01:57 Oh gosh, absolutely. Yeah. And then you get cases like this and it seems to just illustrate people's distrust. And I think it's a broader distrust of institutions to be honest. But most certainly between academia and the public, there's a mistrust and then you have, um, you know, something arise like this and, and it just kind of points out and I mean, I guess we're not doing a service either to say we know people who do this, but Speaker 0 02:23 we are, but we are calling people out on it as well. Right? I mean there is this kind of historians, there aren't stories who, you know, say things and then they get kind of taken a task, whether it's in somebody else's book or whether it's kind of in this thing that Lindgren did where it's an article where he kind of talks about this and says, this isn't really true. I mean it, the Academy can fix this. There is a mechanism in the Academy to fix this. Speaker 3 02:53 It's called peer review, but it doesn't always work. I know. Yeah. And that's the whole thing, right? I mean, this was one of those instances where it's like this guy won the highest prize in the field for it because, and it went through a peer review and yet nobody raised a red flag because they were just all too happy with a narrative that they liked. And this goes to what I talk about in my teaching style too. It's like I don't go in with an agenda. I think that that's dishonest. I really do try to flush out the complexity of every situation because you can argue something either way. You know, I could have taken the exact opposite stance on the second amendment today and come in and said, I have, you know, 19 guns and I want 23 more and I should have that. Speaker 3 03:38 Right? Like you can make the argument and I know people who do and I know people who are passionate about it and I think that there's plenty of evidence to back up their claim. And that's the whole point about history is to flush out the complexity of something. So what you're mentioning about, you know, you read page 12 but she didn't read read page 13. That's so important because when historians go that extra mile to say, look, this is actually really complicated. I want to argue these things and I have this evidence. But look, there's also this because the second amendment itself does that it kinda contradicts itself within the same sentence. And that happens throughout history and it's important to point that out. Speaker 0 04:23 Well, and, and as we've talked about with the second amendment, you can cherry pick the evidence for what the second amendment may or may not mean and present very different versions Speaker 3 04:34 compelling on both sides. I think both sides can be really compelling evidence. It comes down to a personal, your own personal belief on it. Right? Right. Speaker 0 04:46 I mean that's the, once you bring it all together, it's a lot more complex. And you know, here's the thing is I think so Belile sets back any serious history of gun ownership in the United States 20 years. Um, because now anybody writing after him, it's going to seem, they're either trying to just restate what he stated or it's a complete repudiation of and not giving any possibility to maybe the, maybe gun culture wasn't as big as we imagined or something. But it's, I mean, he's, he contaminated that field for some time. Speaker 5 05:27 Mmm. Speaker 0 05:30 And this is, you know, again, this is the problem with this kind of, I don't, I mean, what do we call it? Like activist history? Speaker 3 05:38 Yeah, yeah. Activist history or just, I mean, I don't know if there's a label for it, but just having a political agenda when you're going to work to try to flush out something that happened or the, the impact, something that happened. And you know what? I think you could have a really spirited discussion with somebody who goes into the classroom with an agenda who does write with an agenda. And I think that they could defend their stance. And I, and I respect a lot of people who do do that because I think that some of those people do do good work even though they do have a political agenda. Because sometimes there is evidence to completely support their agenda. Um, but that's just not where I come from. Like I just don't, I really don't think it's my job. I mean, I, and I wouldn't, cause I, you know, think about journalism and journalistic standards. Speaker 3 06:25 Like that's the first thing you learn in journalism. It's like you're really supposed to try not to be biased. And I consider myself a journalist of the past and so I just try to go into the archive and this takes a long time. When you don't go in with an agenda, it takes years to do a project. You come in with an agenda, you can just pick out whatever you want and say, okay, there's my argument. But if you go in, honestly with a clear mind and an open mind, it takes years to flush out the complexity of an event in history and its impact because you're going in there trying to learn what happened and you end up reading everything. It takes a long, long time to really get a project going. Um, so that's just my stance on it. Like, that's my approach is like, I really try not to go in with, with an idea of what I want to come out with. Cause that's dishonest. I dunno. I think it's dishonest. Speaker 0 07:25 Oh, I think it's dishonest. Yeah. I mean it's, it's, we've talked about this before kind of privately, not in the podcast, but it's like your research should organically lead to an argument, not you can't force it. Speaker 5 07:40 Mmm. Speaker 0 07:41 And it's, one of the things that's interesting to do also is you've got all this evidence and you kind of look at it and you think, okay, well what I mean, you know, what does this mean? I look at all this evidence so there are any conclusions I can draw. Is there anything I can like say that I have like the critical mass of evidence to support that statement? Speaker 5 08:01 Mmm. Speaker 0 08:02 And that's what we try to teach our students is this is how you should approach the study of history. Speaker 5 08:08 Mmm. Speaker 0 08:09 But I mean, Belisle I think joins this kind of list of people who really, um, really harm the, the Academy. Um, in fundamental ways. Speaker 3 08:27 Yeah. Most certainly harms the reputation. That's already fragile. And I mean, Speaker 0 08:33 I think that for me, Speaker 3 08:35 the reason that I like doing this podcast is because it gives us a way to maybe in small ways heal that distrust, right? Because I'm hoping that people who aren't in the field, and I would assume most people who listen to this aren't actually in the field of history. And I hope that this kind of serves to bridge that gap of trust because it, it was very much violated in the case of this book. Speaker 0 08:59 Um, and you know, the name of the book is arming America, but <inaudible> Speaker 3 09:04 it's just, I think it's important to, like you said, to call it out and to, to discuss it honestly. And especially with such a contentious issue because everyone can, you can have a political stance, but you kind of have to leave it at the door when you go to work, Speaker 0 09:19 I think. Right? Yeah, I agree. Well said on that note, let's end it. This is a long upset. Oh goodness. It was fun though. I love talking about this with you. Yeah. Speaker 3 09:32 And, well, you know, I don't think that we'll do, are we going to do all the amendments right in a row or we're going to do some <inaudible> Speaker 0 09:39 break before we come back to the amendments. Um, these first who've taken a lot out of us, we want to get back to a little bit lighter fare. Um, uh, we've got some viewer, some listener requested that we're going to kind of sort through and figure out what we want to do with, I have to talk Hillary and do a Christmas episode. Um, I can be talked into a Christmas episode. You can be talked to and say, can I have a soundboard loaded up with Christmas? Sounds. No, that you can't do, but we can do like jingle bells Speaker 3 10:08 maybe in the beginning, like instead of the little <inaudible> music. Speaker 0 10:14 Awesome. Fantastic. Awesome. All right, well thank you for joining us. Um, tune in next time to an incomplete history. Uh, I hope you kind of learned some stuff today. Maybe had some <inaudible> Speaker 9 10:32 information that made you think twice maybe about your own political views about the second amendment. Um, and, uh, make sure you tune in next week on an incomplete history. I'm Jeff and I'm Hillary. Until next time.