BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I’m Bob Garfield. That Orlando shooter, twice scrutinized by the FBI, legally purchased a high-powered assault rifle before his attack. That left an opening for pro-gun control legislators. By Wednesday, Democratic Senator Christopher Murphy had launched a 15-hour filibuster aimed at passing some modicum of gun regulation.
SEN. CHRISTPHER MURPHY: …then ask yourself what can you do to make sure that Orlando or Sandy Hook never, ever happens again? With deep gratitude to all those who have endured this very, very late night, I yield the floor.
BOB GARFIELD: The late-night marathon forced Senate Majority Leader Mitch McConnell to allow an upcoming vote on a bill to expand background checks and prohibit people on the FBI's no-fly list and other terrorist watch lists from purchasing guns. But even this small step in the direction of gun control may be tough to take because civil libertarians have long found the no-fly list both opaque and possibly unconstitutional. And, as it happens, so does the NRA.
MAN: The NRA firing back with a response saying that there are terrorists who should not be allowed to purchase weapons, period, but then adding that they are concerned about the due process rights of Americans who are put on that watch list.
BOB GARFIELD: Of course, these days the biggest impediment to any kind of gun control is the Second Amendment, but it wasn't ever thus. Writing in Slate this week, Dahlia Lithwick called the current interpretation, that it protects an individual’s right to bear arms, a triple-decker hoax. The Second Amendment reads, “A well-regulated militia, (comma) being necessary to the security of a free state, (comma) the right of the people to keep and bear arms, (comma) shall not be infringed.”
The key issue here is a matter of grammatical interpretation. Does it protect the rights of state militias or those of the individual?
DAHLIA LITHWICK: Which is the operative clause [LAUGHS] in here? Certainly, it seems that you can't completely imagine away the clause that talks about the regulated militia and the clause about the right of the people are both clearly in operation.
BOB GARFIELD: It’s gonna be hard to resolve because the sentence simply doesn't scan. The first comma makes no grammatical sense. It leaves four oddly disconnected clauses and, therefore, ambiguity.
DAHLIA LITHWICK: And it is true, Bob, that that comma has sent many Second Amendment scholars to their brandy. The way this sentence spools out is incredibly complicating; it does not make for simple parsing.
BOB GARFIELD: But, ambiguity or no, the Republic did [LAUGHS] manage for more than 150 years to get by before anyone began to assert individual gun rights. How did that notion first surface?
DAHLIA LITHWICK: Let's be clear, I think it was always ambiguous. So when this does, in fact, come in the landmark case in 1939, in a case called Miller that upheld the conviction for two men convicted of moving around short barreled shotguns, the court looks at their claim that, hey, we have an individual right under the Second Amendment and just backs it away and says, there is no Second Amendment right here, end of story. That’s Miller in 1939, and that's good law for decades.
BOB GARFIELD: But at some point in the ‘80s, gun rights as an issue, and a very polarizing one, began to go mainstream. How did that become a thing?
DAHLIA LITHWICK: Very, very powerful gun groups got together and started to organize around the proposition that there is this inherent individual Second Amendment right protected in the Bill of Rights. And this campaign to persuade people is, in fact, dovetailing perfectly with sort of fundamental American notions about freedom and liberty and the West, and so they actually have a fairly easy time selling to the American public the notion that the document contains something that it does not explicitly contain. And that is written in the Second Amendment, that first clause disappears, the second clause is everything; people have an individual right to bear arms.
BOB GARFIELD: The NRA may or may not have had a solid constitutional argument, but they did have a large pot of money, and with that money cowed or maybe bribed legislators in statehouse after statehouse across the country away from gun-control laws and even actually stymied government tabulation of gun crimes. But the crowning achievement of the NRA has to be 2008 and the Heller decision. Can you tell me about it?
DAHLIA LITHWICK: It makes the wish come true. By a 5 to 4 margin, with Justice Antonin Scalia famously writing the majority opinion, the Court concludes for the first time that there is an individual right to own and have a gun in your own home. And so, this is both a watershed moment in that it changes everything but, in a strange way, I think it carries the imprimatur of something that is destined to be and always was.
BOB GARFIELD: Now, this gets to Heller’s effect on the national conversation, the notion that the Second Amendment is not only a constitutional individual right but that it's somehow subject to zero regulation.
[CLIP/MUSIC UP & UNDER]:
SPOKESMAN: Requiring gun registration with the federal government, that's an illegal abuse of privacy and freedom unprecedented in our history.
DAHLIA LITHWICK: Even Justice Scalia, in the blockbuster opinion that he writes, says, of course, [LAUGHS] regulations are okay. He lists places – you know, government buildings, schools. So in the face of the text itself he’s saying, some regulation is obviously okay. What he doesn’t do is tell us what the standard is. But there's no question, I think, on any side of the debate that some regulation is always going to be okay, even after Heller.
BOB GARFIELD: The late Justice Scalia’s failure to be specific has left a gaping hole, and it's also [LAUGHS] made way for the idea, now commonplace, that liberals in the media, we’re all comin’ for your guns.
DAHLIA LITHWICK: And this is the part that's hard. This is the part that, you know, gets us angry tweets, Bob, and angry mail. And that is I think that there is a large and effective campaign on the part of the NRA and other groups to really reinforce the idea that, absent any regulation, [LAUGHS]evincing such intent, Barack Obama is coming for your guns and so is Hillary Clinton.
NRA’S WAYNE LAPIERRE: Well, I make the same thing during the campaign, when he said it to people, I will not take away your rifle, shotgun, handgun. They leafletted the country with flyers like this, Obama is not going to take your gun…And now he's trying to take away all three. I mean –
DAHLIA LITHWICK: That has been messaged so effectively, that this is simply true for an enormous portion of the population.
BOB GARFIELD: Well, it may be propaganda but in it resides, I guess, some element of the truth because I, I don’t think the liberals are out to confiscate anybody's guns but in the event that Trump is not elected president, it's a dead certainty that a Supreme Court composed of Hillary Clinton appointees will come after Heller at the first opportunity. Is Heller, in a Hillary Clinton world, a short-time proposition?
DAHLIA LITHWICK: It's a good question. I mean, one of the flights that the justices who actually wrote in Heller had was how carefully you have to not upset the apple cart, one of the things Justice Stevens said was, you know, Miller from 1939, that's good law. People relied on that. You can’t set it kittywampus because you think it's wrong. So I do think that how it may get chipped away is the same way Rove v. Wade has been chipped away, which is Hillary Clinton will probably seat a nominee willing to say, okay, let's give some force to the proposition that we can regulate. And I think that’s how we’re going to see it happen, exactly the way regulations and regulations and regulations are what started to eat away at the core holding of Roe v. Wade.
BOB GARFIELD: I also observed kind of glibly that we got through 150 years of the Republic without rethinking the Second Amendment, and we did just fine. But you could equally say we got through 150 years of the Republic with segregation and lack of women's suffrage and, and a whole bunch of other things that we as a society have rethought. So I guess we can't dismiss the Second Amendment question purely on the basis of us as a society only having just addressed it, right?
DAHLIA LITHWICK: That's right, and I think in one way that goes to the fundamental distinction between conservative and liberal interpretation of the Constitution. The project in Heller was to look at this from an originalist perspective: what did the framers want? The fact that even liberal justices did that is kind of the cherry on top. It showed a total win for Scalia's worldview of originalism.
But if you think about how progressives think about the Constitution, they’re not necessarily wedded to the notion that we have to handcuff myself to the framers. And so, I think, in some sense, liberals are simply more comfortable with the notion that when we talk about guns we don't have to talk about muskets; we can talk about AR 15s, as well.
BOB GARFIELD: As long as I’m playing devil’s advocate, I, I might as well also point out that one of the other most polarizing questions that society has faced over the past 40 or 50 years is abortion, and Roe v. Wade is built on [LAUGHS] at least as gossamer-like a legal infrastructure as Heller v. Washington, DC, no?
DAHLIA LITHWICK: I, I think that's right, and a lot of liberal professors have spent a lot of time in the intervening years, trying to think of ways to rewrite Roe so that it is on firmer constitutional footing. But I think, in a sense, because they're more willing to live with an evolving document, it's much, much less of a migraine for liberals than it is for conservatives.
BOB GARFIELD: All right then, so what happens?
DAHLIA LITHWICK: I think part of what happens, Bob, is we enter the fight about Merrick Garland with a renewed understanding that the future of Heller is one of the things that a Court is going to have to look at. And I think that we really have to,, as a nation put aside and somehow disaggregate our fury over this issue from the facts on the ground.
There is a Second Amendment. It protects something, although we’re not quite sure what it is, but it absolutely allows for regulation, and that that’s where the conversation should stop. It should not stop at the word “there is a Second Amendment.”
BOB GARFIELD: Dahlia, thank you very much.
DAHLIA LITHWICK: Thank you for having me.
BOB GARFIELD: Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.