00:00 [Archival]: We will hear argument today in case 07290, District of Columbia versus Heller.

00:08 Leon: Hey, everyone, this is Leon Neyfakh, host of Fiasco and co-creator of Slow Burn. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about guns. For years, most scholars believed the Second Amendment only protected the right to bear arms in the context of a well-regulated militia, but in 2008, in the case of DC v. Heller, the Supreme Court ruled that the Second Amendment was actually being much broader, protecting the right of every individual to own guns.

00:38 [Archival]: The Court really opened up a whole new chapter in constitutional law, revised the well-understood meaning of the Second Amendment.

00:45 [Archival]: There are some people that think that guns kill people as if they jump out of the dresser drawer, walk out the front door, and start shooting at people.

00:57 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

01:06 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have eaten away at the fabric of American society, like moths in our collective closet. I am Peter, Twitter's The_Law_Boy. I'm here with Michael...

01:22 Michael: Hey, everybody.

01:23 Peter: And Rhiannon.

01:24 Rhiannon: Hello.

01:26 Peter: And today we are covering DC v. Heller.

01:30 Rhiannon: Boo.

01:32 Peter: Relax. The case that granted Americans an individual right to bear arms under the Constitution. If you asked most Americans how long the Constitution has protected the individual's right to possess firearms, I imagine most would say something like, since the country was founded. The actual answer is since 2008 when the Court whipped over a century of jurisprudence on its head in one of the most bizarre decisions in Supreme Court history. And usually we spend the majority of our time on this podcast dismantling the reasoning of the Court. And we're going to do that, and this decision is tacky and lazy and muddled and full of incomplete logic, but here, for our 10th episode, excluding one emergency episode, we want to spend a little more time on how this legal argument was developed by conservative activists, boosted by the NRA and ultimately went from a fringe theory to commanding a majority of the Justices of the Supreme Court.

02:31 Peter: This is another opinion by Antonin Scalia, and I think it's probably his most famous. Maybe the greatest myth about Scalia is that he's willing to cross the aisle or go wherever his interpretation of the law leads him. We've mentioned before that he is a doctrinaire conservative. His most reliable votes are on hot button conservative issues, those that are getting play in conservative media, and a big one is gun rights. The last thing I want to say before we dive into this, we get accused of bias on this podcast now and then, and I just want to say this before we go in, I think this is a terrible, poorly reasoned decision. That said, I'm not a big anti-gun guy, I don't really give a shit, it's not one of my big issues. I only want to say that because we're going to get accused of being a bunch of big city libs, and again, I just don't care, this opinion sucks, but like, go ahead and buy a gun. I will never give a shit. And I just want to say that up top to silence the haters, which is one of my big priorities here.

03:35 Michael: I'm sure that after that disclaimer, Peter, our haters will disappear.

03:40 Peter: They know, they know to leave it. So the Second Amendment 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." And until about the 1970s, the Second Amendment right to bear arms was viewed as being tied to the context of the well-regulated militia and, generally speaking, the reasons for this, pretty simple. When the Constitution was drafted, each state maintained its own militia consisting of citizen soldiers. Every white man ages 16 to 60 was required to serve and required to own a weapon. Anti-federalists, the folks who were concerned about federal power, they were worried about the central government disarming or otherwise neutralizing the militias and replacing them with a federal standing army.

04:34 Peter: James Madison introduces the Second Amendment largely in response to those concerns, although it should be said his exact intentions, not exactly clear. He didn't mention the individual right to possess weapons in his notes, it wasn't mentioned by Congress during the process, and the term, it should be noted, "bear arms" was used in most records to refer to military service rather than a simple possession of weapons, though as the majority opinion points out, that's a little hazy around the edges for sure.

05:03 Michael: Right, and just for some context, in terms of the anti-federalist concerns, in certain states, militias were often used as slave patrols, so we might be able to guess why some states might have been worried about the federal government like disbanding militias and coming for them. I don't know, I'm just saying maybe it's something to think about.

05:32 Peter: So over the next century and change after the Constitution is passed, the state-run militias weakened both in form and in function until the Militia Act of 1903 effectively turns them into what is now the National Guard, part of the military reserve that is subject to some state control, but whose funding, training and deployment is largely dictated by the federal government for federal purposes. There is almost nothing remaining of the idea of a state-run militia that could, if needed, stand up to the federal government.

06:04 Rhiannon: Right. And so the Supreme Court has addressed the Second Amendment several times throughout history, from the late 1800s through the early to mid 1900s, there was never a recognition by the Supreme Court of an individual right to possess weapons. Looking through history in terms of scholarship and what academics were saying about the Second Amendment, between 1900 and 1960, there were only 12 studies of the Second Amendment in legal journals, and they all framed it as a collective right tied to militias, it wasn't ever interpreted as an individual right to self-defense.

06:42 Peter: So politically, there's no significant push for the Court to recognize this right until the 1970s. The NRA prior to that had often supported gun control legislation. When the Black Panthers started openly carrying loaded firearms in public in the 1960s, California Governor, Ronald Reagan...

07:02 Rhiannon: Boo.

07:04 Peter: Passed the Mulford Act of 1967, which banned the practice, with the NRA's support.

07:11 Michael: Right. And in 1955, the NRA itself had an internal report that acknowledged, and I quote, "the Second Amendment appears to apply to a collective, not an individual, right to bear arms." Which again, goes to the idea that it's a militia and not like your right to have a hunting rifle or a handgun.

07:33 Peter: Yeah. I also want to mention that prior to the Black Panthers, the Black Panthers were like one issue that sort of centralized gun rights in people's minds. The other it was bank robberies in the '30s, and I just think that's cool as hell. There were so many bank robberies, people were like, "We gotta do something about this."

07:49 Michael: Peter was born into the wrong era. He wants those guns with like the round... Like magazines.

07:57 Peter: Yeah, yeah, one of those big Tommy guns and I want to rob a bank wearing my nicest suit.

08:02 Rhiannon: Yeah, that's right.

08:04 Peter: As the 1970s progressed, more reactionary elements of the conservative movement took hold in conservative institutions, the NRA included, and the idea that the right wing should be taking a harder line on gun rights and the Second Amendment in particular, started to gain some popularity. And in 1977, NRA leadership was voted out and replaced with dogmatic hardline ideologues dedicated to a broad interpretation of the Second Amendment.

08:36 Michael: Right, right. For some detail on that shift, in the '60s, like we're saying, there are sort of countervailing forces. Obviously there's the assassinations of many civil rights and political leaders which are maybe pushing towards gun control and the Black Panthers. On the other end of the spectrum was desegregation was creating, especially among white citizens, like a concern about crime, that led to our law, our first law and order President in 1968, Richard Nixon, which also led to a big hard right push for gun rights, for self-defense. And in 1971, this is particularly important, in 1971, an NRA member was killed in a raid by feds with the ATF, Alcohol, Tobacco and Firearms. I forget what...

09:29 Peter: Bureau. I think it's just Bureau.

09:29 Michael: Bureau, right, right, right. And that helped hard-liners get their foothold in with leadership in the NRA, it sort of galvanized them, and it was only a few years later that they were able to fully oust the more moderate leadership that had been holding the fort down up to that point.

09:51 Peter: Right. So at this time, this is the Republican Party sort of ideologically coalescing into what we would understand the Republican coalition to look like now. And in 1972, the GOP platform had expressly supported gun control. In 1980 it expressly proclaims the party's belief in the individual right to bear arms under the Second Amendment. The NRA issues its first presidential endorsement for Ronald Reagan, and at the same time, conservative political operations, NRA included, start funding academic scholarship to support this point of view and argue that the prior two centuries of constitutional scholarship had been incorrect.

10:36 Peter: As historian Jack Rakove, I'm butchering your name, Jack, sorry, points out, there are a very small number of historical sources concerning privately owned firearms, and as a result, the revisionists, the NRA revisionists, the right, often recycles the same handful of largely cherry-picked quotations to support their case. The words of Patrick Henry and Thomas Jefferson get frequently mangled by these types. Jefferson once wrote to Washington that "one loves to possess arms," and he was speaking metaphorically about having copies of old letters to use in a debate.

11:16 Rhiannon: Nerd. What a nerd.

11:18 Peter: That quote is still on NRA websites, and they would sell it on t-shirts, like...

11:29 Michael: And another historian, and I'm not going to risk bungling his name, I'm just going to say a historian has charted...

11:34 Peter: Oh, give him credit.

11:36 Michael: He's out there.

11:40 Rhiannon: He knows who he is.

11:41 Michael: He's sort of tried to quantify this, charting the change in scholarship. Rhiannon said up until 1959 or whatever, there was like almost nothing. And so he says, a total of three law review journal articles endorsed the individual right model versus 22 subscribed to the collective view prior to 1970. And then in the next 19 years from 1970 to 1989, 25 articles adhering to the collective right view, as opposed to 27 articles endorsing the individual right model, so a vast chain in the balance of this. And 16 of those individual rights model articles were written by lawyers who had been "directly employed by or represented the NRA or other gun rights organizations," although they didn't identify themselves like that in the author's footnote or anything.

12:40 Rhiannon: Just like 5-4, the podcast that does not identify the historians it's quoting.

12:46 Peter: That's right. Laws aren't real and neither are historians. So obviously, this sort of academic shift is gaining steam, and it's not just relegated to the academic sphere. In 1982, Senator Orrin Hatch commissioned a study on the right to keep and bear arms, designed to conclude if the Second Amendment contained an individual right to own firearms.

13:10 Rhiannon: Yeah, but they still had significant detractors, there are still people saying like, no, no, no, that's not what we think, and in fact, at this time, he was the former Chief Justice, retired Chief Justice Warren Burger, he described this new doctrine as a fraud on the American public.

13:27 Warren Burger: This has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime. If the militia, which was going to be the state army, was going to be well regulated, why shouldn't 16 and 17 and 18 or any other age persons, be regulated in the use of arms?

13:51 Peter: Yeah, and for some context, Warren Burger, pretty conservative dude.

13:56 Rhiannon: Yeah, this is not like the liberal guy.

13:58 Michael: No, he was appointed by Nixon, he sort of led the Court's like backlash against the more civil rights minded...

14:05 Peter: The reactionary response to the Warren Court, it's confusing 'cause his first name is Warren, that tripped me up for a good half decade there.

[laughter]

14:16 Rhiannon: Warren Burger, repudiating Earl Warren.

14:19 Peter: Who can keep track of that shit? But this kind of solidifies as the conservative position over the course of the '90s. George W. Bush's Justice Department essentially adopts the NRA position in full, and public opinion shifts over the whole timeframe too, over this sort of half century-ish period. In 1959, Gallup found that 60% of Americans favored banning handguns. By 1975, it was 41%. By 2012, it was 24%. Just before this case comes down, 73% of Americans believed the Second Amendment protected the individual's right to possess weapons. When it did come down, Barack Obama, then presidential candidate, spoke in favor of the decision.

15:08 Rhiannon: Yep.

15:08 Michael: Right. He also had to deal with his like, "they cling to their guns and religion" Congress.

15:12 Peter: He might not have actually supported it and he was maybe equivocating a bit...

15:20 Michael: Political...

15:20 Rhiannon: Maybe he was a politician.

15:20 Peter: Maybe he was politician-ing, but no, look, the point is he had to position himself as supporting this decision.

15:25 Michael: Right. The American people were at a place where that was politically expedient, if not politically necessary.

15:34 Rhiannon: And so turning to the background of how the Heller case gets to the Supreme Court, you know, I always love to talk about the scary little gremlins who bring these cases to our esteemed Justices. Here's how this goes down. Back in around 2002, senior fellows at the Cato Institute and the Institute for Justice, both of these are libertarian think-tanks, they start vetting potential plaintiffs for a Second Amendment lawsuit. Robert Levy is a senior fellow at the Cato Institute at the time. He's the author of the book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. He's just like some old rich entrepreneur and he says, "I'm going to finance this lawsuit myself personally, that's how strongly I feel about this." And in fact, he's quoted in the Washington Post, when talking about the case, "I don't actually want a gun. I mean, maybe I'd want a gun if I was living on Capitol Hill or in Anacostia somewhere, but I live in Naples, Florida, in a gated community. I don't feel real threatened down here."

16:47 Rhiannon: There is a shitload of coded racism and disdain for poor people every time this guy opens his mouth. A little bit later, same interview, he says, "Even when I lived up there, I didn't live in DC, I lived in Chevy Chase in a high rise that was secure." Thank you, Mr. Levy.

17:06 Michael: Isn't Chevy Chase like some tony, like Maryland suburb or something like that?

17:11 Peter: Yes, it is.

17:15 Rhiannon: Whatever.

17:16 Peter: And I don't remember hearing us say it, so in case we haven't, the law being challenged in this case was a complete ban on private handgun ownership in Washington, DC.

17:29 Rhiannon: Yeah. And Robert Levy says, whatever the price of this lawsuit is, he's going to foot the bill, and he'll do so, "happily," because he says, "I'm in a position to pay for it." Robert Levy says that the Washington DC ban on handguns, "It offends my constitutional sensibilities." Okay, so as they're looking for plaintiffs...

17:50 Peter: Imagine having constitutional sensibilities.

[laughter]

17:58 Michael: I don't know, this guy...

18:00 Rhiannon: Imagine your life being so easy that you can think about the Constitution and what offends you about the Constitution.

18:03 Peter: Just like funding lawsuits that have zero impact on your life, and don't really help anyone, he's just like... I would almost respect it if he was like, "My reasoning is that this would help people protect themselves," or something like that, but he's just like, "I don't think this interpretation of the Constitution is correct, I'm going to spend $15 million."

18:22 Rhiannon: Right, exactly.

18:23 Michael: I was just going to say, listening to this guy talk, I kind of wish leftists had some more Second Amendment constitutional sensibilities.

18:34 Peter: Black Panthers, where are you?

18:34 Rhiannon: Yeah, we need you.

18:38 Michael: The tree of liberty needs to be refreshed.

18:43 Rhiannon: So they're strategic about the plaintiffs that they choose. Levy says multiple times publicly, they want economic diversity in the plaintiffs that they're choosing to take this case, gender, age, racial diversity, they want the optics of this to look like, look, this is just regular people or law-abiding citizens who should have an individual right to bear arms. So the case that is filed in the lower court, they end up choosing six plaintiffs, it's three men and women, and four of them are white, two of them are black. Now, the appellate court eventually knocks out five of the plaintiffs because the court says these plaintiffs actually don't have standing to sue because they hadn't tried to register for a handgun in DC. That leaves one plaintiff left, and that's how we get the case name Heller. The guy that's left is Dick Anthony Heller. Now, we have to take some time to talk about this little freak, 'cause he is freaky deaky. This guy is a licensed special police officer in DC. I interpret those words to mean this is a rent a cop. And...

19:49 Peter: Where do you get a license but you can't become a cop? Couldn't do enough push-ups to become a real cop?

19:53 Rhiannon: Right. He carries a gun at work, but he has to leave it there when he goes home because of the ban on handgun possession in DC. Back in 1996, so years before this lawsuit, he and his roommate, Dane von Breichenruchardt -- fucking white people and their names --

20:15 Peter: Yeah, they didn't change that shit at Ellis Island, what happened there?

20:18 Rhiannon: He and his cuckoo lulu roommate the US Bill of Rights Foundation, which they basically used to disseminate their wild views about small government and guns, and they purposely decided to have Mr. Heller apply for a handgun knowing that he'll be denied so that they could preserve a legal claim to challenge the ban. So they had thought about this for a long time. After this case, just to give you an idea of where Mr. Heller runs with this, in 2008, he goes on to create the Heller Foundation, whose mission is to promote "a world where arms and self-defense rights are considered as essential to human life as food and water."

21:04 Rhiannon: The website, you have to go to the website. The website is absolutely nuts. It's a bunch of photos of like incel dorks raising their fists. Like, "My mom just told me that I look cute in my suit," and there's random quotes riddled all over the website with typos, like, "in a free country one does not permission from gov to own a firearm," and it's like, it's like the banner at the top of the website. It's fantastic.

21:31 Peter: Excellent. So Enter Antonin Scalia. This is an incredibly lengthy, often convoluted, opinion. We do not have the time, energy, or emotional fortitude to make our way through it entirely here, but there are several parts that are particularly stupid, and we're going to talk about those. But first, we want to talk about the primary thrust of both Scalia's majority and Justice Stevens' dissent. As we noted, the historical record about the intent of the Second Amendment is very sparse; nevertheless, the majority opinion is predicated in the idea that a historical analysis could definitively establish whether or not there is a Second Amendment right to the individual possession of arms. And both Scalia and Stevens sort of go at it on this front.

22:30 Peter: And the number of intellectually hollow assumptions here is mind-blowing, that there is a clear historical answer to this question, that it could be accurately gleaned from the limited record we have, and that a Justice of the Supreme Court could successfully do it. And we're not going to turn ourselves into hypocrites by trying to debunk the historical claims in some sort of orchestrated manner, we're going to try to stick to the legal arguments here, and lucky for us, there are some bad ones.

23:00 Michael: Yes, that's right.

23:02 Peter: Again, the Amendment reads, "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 there's a question of what to do about the "prefatory clause," the portion that says "a well-regulated militia being necessary to the security of a free state." And so the question that kind of jumps in your mind immediately is whether the fact that the right follows from a statement about a well-regulated militia means that the right is limited to the context of the militia. And Scalia has a couple of answers to this question, but the big one is that it doesn't really matter, because Scalia says that this clause is for interpretive purposes largely irrelevant. The prefatory clause, as he calls it, is a statement of purpose, and that doesn't impact the right.

23:52 Peter: And I want to give this argument a little bit of credence, 'cause I think it's not totally nonsensical as an argument. What he's saying is that the reason being provided for the right isn't relevant, because no matter what the reason is, the bottom line is that the Amendment establishes the right. To give an analogy, if I said you can use our pool because it's hot outside, you can arguably say that because it's hot outside isn't really a relevant part of that. What's relevant is that I'm letting you use the pool, which means you can use it. In some ways, this makes sense, right? The reason for the right can be viewed as sort of background information, the bottom line is the Amendment gives you the right to bear arms. But the problem with that in this particular context is that the reason being provided no longer applies even a little bit. There are no more well-regulated militias, so to use the same analogy it's as if I said, you can use our pool because it's hot outside, but in fact, it's not even a little bit hot outside.

24:51 Rhiannon: Or it's never going to be hot outside again.

24:54 Peter: In that case, suddenly the reason seems a little more relevant, right? And this is a long way of saying it, and I'm trying to give him some credit here, but this is dumb as shit.

25:10 Michael: Another analogy I literally just thought of now is like, you can crash at my place, I'm out of town. Well, what happens when you're back in town? Are we just sharing a fucking bed, or is that offer off the table?

25:24 Peter: You said it, Michael, we're going head to toe. Look, the entire reason the right exists according to the Amendment is gone. That's not irrelevant to the interpretation of the Amendment, it is crucial to the interpretation of the Amendment. Just a couple of episodes ago, we talked about how fraudulent the idea that Scalia is an ardent textualist is, and here's another example, right? This is plainly him working backwards from his conclusion. He knows that he can't bring the prefatory clause into the analysis too much, because as soon as you're faced with the fact that the militias are crucial to the Amendment, it's sitting on shaky ground, right?

26:01 Peter: So he wants this kind of reason to discard with it. He does sort of say that even if you do assume that it matters that he's still right, but he's trying to create avenues through which he can sort of maintain deniability. And so let's get to the next part of his argument, which is what's a well-regulated militia. And this is sort of... This is his backup plan. Like, what if you have to factor in the prefatory clause? And he's saying, look, look, it's still okay. And he says that according to historical sources, the militia comprised all males physically capable of acting in concert for the common defense, and that's how he argues that the individual right to carry arms is related to the concept of the militia: Everyone can carry a weapon because everyone needs one, because everyone's part of the militia, right?

26:51 Rhiannon: Right, right. And again, we don't want to get too deep into the history here, but there are some definite logical issues with What Scalia is doing. First, the militia at the time of the Second Amendment was not like just this conceptual thing that was theoretically comprised of able-bodied men, it was a literal militia controlled by the states that all able-bodied men were required to serve in, including mandatory military exercises. That doesn't exist now. No such thing exists currently, period, and pretending it does, that's just fantasy world shit.

27:29 Michael: Which is a shame, 'cause I think it'd be pretty cool if me and the boys got together and...

27:34 Peter: Yeah, you want to go on those slave patrols, Michael?

27:42 Michael: Yeah, I don't...

27:42 Peter: Wow, canceled. So, and in of the weirdest parts of the opinion, he says that the adjective "well-regulated" implies nothing more than the imposition of proper discipline and training, and that's all he says about that term, which is weird, because the term well-regulated is pretty much proof that this militia no longer exists, right, because all able-bodied men are not receiving military training. It's very... But his portion of the opinion that focuses on the well-regulated militia language is like a paragraph, a very short paragraph, and it's just like, yeah, obviously, that just means military training, and then moves on as if we're all receiving military training. And the final point I want to make on this clause and Scalia's warped view of history here is the militias were controlled by the states and were viewed in large part as bulwarks against federal power.

28:38 Peter: So how can it be that the Second Amendment prevents the states themselves from controlling what weapons its citizens use in the militia? The dissent doesn't really address it, the majority doesn't really address it, but it doesn't make any sense. If these are really supposed to be under the control of the states, why can't states ban certain weapons? Why can't they dictate what weapons are used in their own militias?

29:00 Michael: Right, and so I want to talk for just a brief second about the substance, the substantive question of what the right to bear arms is, what Scalia comes after the prefatory clause. And so Stevens in dissent and Scalia for the Court, they have a different approach here, it's subtle, but Scalia is trying to discern what the original understanding of the phrase "the right to keep and bear arms" would mean to Joe Schmo on the cobbled streets of Boston or wherever in 1791, whereas Stevens is trying to find the original intent of James Madison and the enacting Congress who drafted the Amendment and ratified it. So it's a subtly different question, it's both of them are pursuing a historical originalist analysis. If this sounds like stupid and esoteric and completely divorced from buying guns to go shoot up a school, I would say yes.

30:10 Michael: And maybe that's the point, right, is to totally denude this of any fucking meaning whatsoever, so that it's a completely academic exercise. In any event, it's really stupid. If it sounds stupid, you're on the right track, but so Stevens in dissent, he has some good points about how like, look, as Peter mentioned up top, keeping arms and bearing arms were like military terms of art back then, and so we should interpret the phrase "keep and bear arms" as like connoting a military purpose, which works in conjunction with the prefatory clause, which is focused on militias, to make this whole Amendment about military service, service in a militia. And that makes sense. And he's very persuasive if you read nothing but his opinion. Scalia, like busts out the fucking 1790 edition of the Oxford English Dictionary or whatever, and individually tries to define what the words "keep," "bear" and "arms" would mean to the random person in 1790...

31:23 Peter: Which the random, by the way... This whole... I'm going to get some of this wrong, but the average IQ is going up like a point every two years, okay. Trying to ask what someone in 1790 thought this meant, it's like trying to talk to your cat. You would have to communicate to these people with motions.

31:44 Rhiannon: Right. Like most people at the time would be like, "Oh, my God, you can read? Like, wow."

31:49 Peter: Right. Like George Washington was like 6'2", and they were like, "This is the tallest man in all of history."

31:56 Rhiannon: They literally overthrew a king and they were like, "He should be a king. Look how tall he is."

32:00 Peter: "As the tallest man here, you are in charge of the country."

[laughter]

32:11 Michael: Look, I'm not going to say Scalia is wrong, I'm not going to say Stevens is right, because who has the better read on history here is, it's besides the point, right? Like this whole debate is ridiculous. It just doesn't matter. Neither of them are historians. Scalia had an undergraduate degree in history, which I don't know, I had an undergraduate degree in psychology and philosophy, and I'm not fucking counseling people with PTSD.

32:38 Rhiannon: I don't go to Michael for therapy.

32:44 Michael: Exactly. Neither of them are linguists, which matters, and neither of them are fucking historical linguists, which is like a real field called diachronic linguistics, which has PhDs involved in it. They're arrogant amateurs who are just picking and choosing from their favorite amicus brief about what fits their partisan goals, and that's what it is. And the idea that Antonin fucking Scalia can divine from some dictionary what the random douche bag on the streets would understand the phrase "bear arms" to mean in 1790, it's stupid beyond the point of even being worth like explaining.

33:32 Rhiannon: Yeah, and it's a purposeful obfuscation of the issue.

33:35 Michael: And so, yeah, this was like between the two of them, it's like 80 pages of bullshit, and we're covering it in about three minutes of me yelling into the microphone, because that's about what it's worth. And on top of this, it's like we mentioned before, that there was some scholarship in the 1890s, discussing the Second Amendment and the idea that some asshole like Scalia would know better what those words meant in 1790 than someone who was born in like 1850, who was writing about it in 1890. I don't care how stupid the guy is, the guy in 1890 knows more. Maybe like the broad thrust of history and the big powers that shape things are easier to see from temporal distance, but like the minute question of the meaning of specific words being used in like a specific way...

34:38 Peter: It's not like we've unearthed an artifact, like the original intent was like buried under some cobblestone fucking street in Boston and Antonin Scalia dug it up.

[laughter]

34:52 Rhiannon: What's that movie where they...

34:53 Peter: National Treasure.

34:54 Michael: National Treasure? National Treasure.

34:58 Peter: Scalia started writing this when he saw Nicholas Cage in National Treasure.

35:01 Rhiannon: Yeah, he was inspired by Nic Cage, just running around.

35:08 Michael: God, what a bunch of arrogant assholes these guys are. Unbelievable.

35:15 Peter: Alright, let's move on to the final, like big legal issue here, which is the precedent. Prior to this case, the last time the Supreme Court had addressed the scope of the Second Amendment was in 1939, in a case called US v. Miller, where the Court found that a ban on sawn-off shotguns was constitutional, because the possession of those weapons didn't have "any reasonable relation to the preservation or efficiency of a well-regulated militia." And as I had mentioned this, this was a bank robbery case, this is like sawn-off shotguns are being used to hold up banks, and that was the big thing that everyone cared about.

36:00 Peter: So a lot of people interpret this case as overturning US v. Miller, but Scalia claims that that is not what's happening here. Even though the Court there clearly tied their reasoning to the militia concept in a way that Scalia doesn't, he said that it's consistent with Miller, because what that case stands for in his mind, is the idea that Congress can ban weapons that "are not in common use at the time." Or, if you're reading a little bit between the lines, are primarily used by criminals. And this is just a desperate attempt, I think, by him to square his reasoning with the Court in Miller, and it makes no sense. Why would something is commonly used impact its constitutionality?

36:47 Peter: So if you have a rare weapon, that's less constitutional than a popular one? I mean, by this logic, you couldn't make new guns, right. That's just a... That's a rare weapon now. If states legalize a particularly dangerous type of weapon like machine guns, which by the way, Scalia expressly says this doesn't impact machine gun bans, those are still cool, but if a state legalized machine guns, they'd become more popular, right, and then they become more popular and all of a sudden they're protected by the Constitution because they're no longer uncommon. And now, the state can't make them illegal again? Like that's the reasoning that we're going with here? Just absurd, just silly, detached from reality, sort of untethered reasoning.

37:28 Peter: A big theme of Second Amendment scholarship is that the right is important for purposes of armed resistance against the government. Not just in scholarship, but in how people talk about the Second Amendment casually, and that creates a weird tension with Scalia's argument, because he's saying that it's fine to ban weapons that are commonly used by criminals, but it should go without saying that armed insurrection against the government is illegal, so when he says criminals, I guess he apparently isn't talking about the hundreds of thousands, if not millions of right-wing freaks who are sort of semi-openly planning a war if the government gets too liberal, from what I can tell. And he says like, guns used by criminals. You know who he means.

38:15 Rhiannon: Right, right. It's barely coded, absolutely. Right, yeah, so the Stevens dissent notes that the Second Amendment implications of the law in Miller, and that law was the National Firearms Act of 1934, which banned machine guns and sawed-off shotguns, that wasn't even mentioned by the Senate or the House when the legislation was being debated. There simply was not any real question at the time that it was constitutional. And when I was prepping this case, I found that Justice Stevens, after he retired, this was last year, he wrote a piece for The Atlantic where he talked about this decision, and he says that Heller is "unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench." He said also that "it represents the worst self-inflicted wound in the Court's history, and that the Heller decision represents my greatest disappointment as a member of the Court." He does a little bit of the pull back the curtain, kinda talks about the process of reaching the decision and how the majority ended up the majority. He laments his inability to persuade both Justice Kennedy or Justice Thomas to join him.

39:38 Peter: What was his angle on convincing Thomas?

39:41 Rhiannon: I think that both of them... He goes hard, I mean, they don't go hard at each other at all in public, right, so I'm not going to say that he's pulling out all the punches, but he kinda goes in on Justice Kennedy specifically, but both of them, he says he expected them to respect precedent and stare decisis more than they did, to respect the decision in the Court.

40:03 Peter: It goes to show that we're all smarter than John Paul Stevens 'cause I would have never fucking thought that Clarence Thomas could've been pulled into the liberal side of this argument. Kennedy, I guess, like who the fuck knows what matters to that guy half the time, but Thomas, you gotta be out of your mind to think that you could've really convinced him.

40:21 Michael: I think it says something that... We've made this point a number of times that Scalia has a reputation of taking his principles, taking them where they go, regardless of where they align with his ideological priors, and that Stevens is talking about two other Justices, including one who's considered like a very doctrinaire conservative, in Thomas, as more regretful inability to recruit than Scalia.

40:50 Rhiannon: Well, there's that... I would say throughout the piece, there's a tone from the perspective of Justice Stevens that Scalia's a lost cause, that it was just...

40:58 Peter: Yeah, yeah, which is, I mean, because as we... I mean, as we discussed at the top, it's not incorrect that Scalia is driven by his principles. The misconception is that his principles involve certain methods of statutory or constitutional interpretation. What his principles actually are are whatever fucking Sean Hannity and Rush Limbaugh are saying at any given time. He is not intellectually rigorous, even in the way that Clarence Thomas is, and I think Clarence Thomas is a hack too.

41:30 Rhiannon: Right, right. Exactly.

41:31 Peter: I mean, there's nothing that can pull him away from that. The idea that he's being driven by textualism is something that you could only get by reading the cases that are completely detached from political conflict, and whenever you introduce politics, Scalia is right there on the conservative side of it every single time.

41:51 Rhiannon: Yeah, that's right.

41:52 Michael: And if anybody wants to call out the flag burning case, whatever, shut the fuck up. One case in 40 years...

41:58 Peter: Yeah, and it's... And flag burning is also one of those things that there is real libertarian influence on the right about. You have things like, institutions like Cato who are very influential and who butter up Scalia, and have his ear and they're on the flag burning side of that.

42:18 Michael: Cato instant spoon-feeding Ossetra caviar, which feels like a thing, like flag burning, that should be easy.

42:23 Rhiannon: And just for what it's worth, at the end of this Atlantic piece, Justice Stevens says that he thinks that Heller was decided so much in error that he thinks we need a constitutional amendment to overrule it.

42:36 Peter: Okay, get the fuck outta here. Is that really... Is that easier? First, I don't know if our listeners know what the process of a constitutional amendment is, but it is impossible.

42:52 Michael: It's a lot.

42:52 Peter: To give some context here of how hard it is to pass a constitutional amendment, it needs to be ratified by 38 out of 50 state legislatures. There's multiple ways to do it, but that's like the most realistic one. Is that actually harder than just getting five liberals on the Court? What the fuck? This is like the fundamental issue with the liberals on the Court, where he's like, well, look, now it's precedent, so we have to overturn the whole Constitution to change it. And it's like, are you fucking kidding me? These guys are spitting in your face and you're like, what about US v. Miller, the case from 1939, it's the last case on point. And they were like, fuck off, Justice Stevens, and he was like, well, now we gotta pass an amendment. Like, no, dude.

43:41 Peter: So we've pointed out the areas of the majority where we think the reasoning is just terrible and bullshit, and it is. I don't want to back off from that, but the bottom line is, it doesn't matter if you think the reasoning was good, it doesn't matter if you think that the historical framework used by Scalia is more persuasive than the one used by Stevens here. Our point is not just that Scalia is off base here, that his logic sucks or whatever, it's that the establishment of this right by the Court was the result of political will, not the ability of the Court to divine the intentions of the Founders or people at the time of the founding better than anyone else who has come before them. This wasn't like the sort of ability of Antonin Scalia to reach the heart of the issue in a way that no one ever had. This was about a political moment that started in the early '70s and built momentum until it had a majority of the Supreme Court on its side, and that is the end of it.

44:48 Peter: They took what was a fringe theory and brought it to the forefront of American political culture, where it stands today, and the sort of nitty-gritty of the reasoning here is interesting to us, I think, as law nerds and it's dumb as shit, and all the things we usually criticize, but it's not the whole story, and it's not even the main part of the story, because we wouldn't be talking about the reasoning of fucking Antonin Scalia on this if there wasn't a quantifiable push by the right to get us there.

45:21 Michael: Right, there was a four-decade propaganda effort, which is far more important than Scalia using a medium to channel the ghost of the median American colonists.

45:37 Rhiannon: Right, Right.

45:40 Peter: So, one of the kind of outcomes of this, and you may have noticed, if you're paying attention to gun laws in a lot of the major cities, especially the big liberal major cities, the possession of handguns, not easy, even though blanket bans on handguns are now unconstitutional, and that's because the cities have sort of responded by doing little ticky-tack regulations here and there that make it effectively illegal to possess handguns. And what Scalia says is, look, he doesn't establish what the standard is, but he says, look, what I do know is that a blanket ban on handguns is a violation of the standard, which it's easier when they establish a standard, but I'm not going to fight him on that point, but...

46:20 Michael: He made a similar point in Castle Rock, right? The Court can just say, I don't want to draw the line, but this is beyond it.

46:27 Peter: Yeah, I think it's a reasonable thing to do, but what I'll say is it's a good example of how these sorts of rulings can make the law much more convoluted, and you might say, well, a blanket ban on handguns is certainly illegal, but now we're in this like, these spots where the city governments are passing these weird laws about what parts of guns you can own, and you'll see conservatives complain about this shit when there's debate about bump stocks and stuff like that. They'll be like, well, these legislators are passing laws about types of guns and the features of guns that they don't understand. And it's like, well, yeah, that's 'cause you can't just ban handguns. And you have this sort of war between the local governments and the gun rights advocates who develop and manufacture weapons, where they're going back and forth, where they're like, oh, this isn't technically automatic because of this, and then the legislature is trying to wrap their arms around it.

47:24 Peter: It's just been fucking chaotic, but if you're a hardcore gun control person, which again, I'm not really, the legislatures still have a lot of tools at their disposal here. You have a huge array of cities and states passing laws like this. The Supreme Court can't take on all the laws at once, and they're always going to be on their heels here.

47:46 Rhiannon: Yeah, you know, there... I read, when I was reading about Heller himself, that he continues to be really pissed off at the regulations in DC, and so immediately after this, he took the press with him and went back down to the office to register his handgun, but DC had quickly passed a bunch of other regulations. That was...

[laughter]

48:07 Michael: That's great.

48:10 Peter: That's funny as fuck.

48:11 Michael: That's fantastic.

48:11 Rhiannon: Yeah. And so he couldn't do it. And so, he was super disappointed in front of the media and everybody was like, "It's been a long battle. How do you feel?" And he was like, "I can't get my gun."

[laughter]

48:22 Michael: The big obstacle right now to gun control regulation at the federal level is lack of Democratic control of both branches of government, not including the Court, but I guess probably including the Court too. All three branches of government. President, Senate, House and Court, they need a majority in both Houses, they need the Presidency, and they need a Court that's not going to strike it down.

48:49 Peter: Look, I actually think we're usually pretty depressing at at the end of these episodes, but I think that DC v. Heller is a fairly symbolic case for conservatives, rather than something that has a real deep impact legislatively. And the Supreme Court is always going to be playing catch-up with it. They really don't have the ability to step in consistently and interfere with like Chicago and New York's efforts and LA's efforts to regulate handguns and other types of guns. So I think if you're a gun control person, it's not something that's going to stop, like common sense gun control as is being proposed by various groups.

49:29 Michael: Right.

49:30 Rhiannon: Right.

[music]

49:40 Peter: Next week is a special episode. We are not covering a case, instead we will be talking about what the Supreme Court might look like under Joe Biden, the former Senator from Delaware and a 105-year-old mummy.

49:57 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.

50:29 Leon: From the Westwood One Podcast Network.