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Interview with Stephen Halbrook: The Supreme Court and Guns

AP Photo/Jose Luis Magana

A woman, who had a Pennsylvania carry permit, gets arrested in New Jersey, not knowing that they don’t issue carry permits—and certainly not to out-of-state residents.

On April 26th, attorney Stephen Halbrook, notably involved in several major Second Amendment-related Supreme Court cases, joined Merion West‘s Erich Prince. He has also written on the history of the Second Amendment and on gun control policies in 20th century Europe. He discusses in this interview the Supreme Court’s ruling in District of Columbia v. Heller, common arguments in favor of guns, and the Republican Party’s shift to become more unabashedly pro-Second Amendment. 

To get started, you were involved in preparing the  amicus curiae brief on behalf of 250 members of the House and 55 Senators for the Supreme Court case District of Columbia v. Heller (2008). Perhaps you can walk us through that case and, more importantly, some of the reasoning of John Paul Stevens in his dissenting opinion, which was joined by some of the Court’s other left-leaning justices.

To start with, we’re talking about District of Columbia v. Heller, decided by the U.S. Supreme Court in 2008, and that was the first time the Supreme Court rendered a very comprehensive opinion on the meaning of the Second Amendment.

My role in this manner is, first of all, I had done previous litigation and written several books on the Second Amendment and its history. By the time that case got to the Court, I represented the majority of members of the U.S. Senate and of the U.S. House of Representatives to basically say that the United States Congress has always considered the Second Amendment to be an individual right of law-abiding citizens. This includes commonly possessed arms such as handguns, which were banned in the District of Columbia starting in 1976.

The majority opinion [in the case] was written by Justice Scalia, and it goes through the text of the Second Amendment, starting with the language regarding a “well-regulated militia being necessary to the security of a free state.” That’s basically the preamble to the Second Amendment, and it explains a federal principle, or political philosophy, that the founders sought. They preferred regulated militia, which meant the body of the people trained in arms as opposed to a standing army. The second part of the text of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed,” clearly states that such is an individual right afforded to law-abiding people.

You’ve got the same right of the people in the First Amendment: the right of peaceful assembly. And it’s in the Fourth Amendment too: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. So basically the court adopts what the language tells you as opposed to previous theories of the Second Amendment where it only protected National Guard units.

When the court came down with the individual rights approach to the Second Amendment, the next question is: “Which arms are protected?” So the kinds of arms that are lawfully possessed by law-abiding people for lawful purposes will be protected, and lawful purposes will be self-defense, sports, and militia. That’s basically why the court ruled the District of Columbia’s handgun ban was unconstitutional.

Four members of the court dissented, and there were two different dissents the four members joined in, and one of those was by Justice Stevens. It basically invented a theory of the Second Amendment that yes, it protects an individual right to bear arms but only in a militia force. There are only about three sentences where he says that, and the rest of the dissent is where he has lots of quotes about the Founders’ thinking that the militia was a good thing. But, of course, [the Founders thought that].

That didn’t mean that was the only thing the Second Amendment related to, but when you look closely at Justice Stevens’ argument, which is that it only protects bearing arms in the militia), [his line of reasoning] completely falls apart. Number one: there’s no right to be in a militia. Number two: if you’re in a militia that’s a military force, you don’t have a right to do anything that you choose to do. You have a duty to do what you’re told to do by your commander. If the commander wants you to take that fort or chop potatoes, that’s what you do. You do not have the right to carry a gun or have your choice of how to use it.

What’s ironic about his opinion is that Justice Stevens basically offered something that was contrived, and it didn’t win the Court’s consensus. I think most people have heard recently that now he’s asking for a repeal of the Second Amendment. He didn’t win in the Supreme Court, so now he wants to repeal the Second Amendment totally.

Yes, I have indeed seen some of those headlines regarding Justice Stevens’ recent thoughts on the Second Amendment. On a similar topic, there are many arguments made by conservatives in favor of the Second Amendment. I recall  Dr. Ben Carson’s two-tiered arguments: about both protecting individuals from the government and then also the state’s ability to protect itself from the federal government. This is one example. What do you think are the most persuasive arguments today for keeping the Second Amendment as it is currently interpreted by the Court?

One of the purposes, which Justice Scalia mentions in the majority opinion, is that citizens can protect themselves against tyranny. I wrote a book on the Second Amendment called The Founders Second Amendment, and it’s about how when the colonists declared their independence, they considered themselves to have a right basically to use arms to overthrow the tyranny.

In that context, here you had colonies overthrowing the government of the mother country when it became tyrannical, but if we want to turn the clock forward to the twentieth century, we have horrible genocide being committed by governments. There are two books that I’ve written on twentieth-century issues. One is Gun Control in the Third Reich: Disarming the Jews and “Enemies of the State, and then there’s a follow-up book that is just now coming out: Gun Control in Nazi-Occupied France.

I think the lesson of the twentieth century is that people have to be able to protect themselves from genocidal, tyrannical governments. I think, we, in the United States, have always had the right to keep and bear arms, and we have these institutional safeguards against tyranny. But that’s not been the case in other countries where there’s never been a constitutional right declared that the government has to go by.

As a result, you can have situations like what happened in Nazi Germany, and the countries it occupied. First, the Nazis took power domestically, with the help of gun control, and then they created the death penalty for gun owners, who did not turn in their guns. This was happening in other countries they invaded. I think that’s a very important twentieth century and now twenty-first-century function of the Second Amendment: It basically declares a human right to protect yourself and your community.

In the aftermath of cases like Heller, municipalities do not have the leeway to forbid firearm possession outright perhaps, but what is the interplay between restrictions passed in more left-leaning municipalities within states and state gun laws overall? For example, Philadelphia, in the generally pro-gun Pennsylvania, is classified as a so-called “first class city” where, unlike in other parts of the state, a permit is required for both concealed carry, and open carry.

One thing Pennsylvanians can be proud of is that the state adopted in 1776 the Declaration of Rights that enshrine the right of the people to bear arms for both themselves and the state. Pennsylvania was right at the forefront of the independent states during the Revolution to promote that right. When the Constitution was debated with the Bill of Rights, you had a very significant segment of people basically demanding the Bill of Rights, including the right to bear arms.

In the mid-twentieth century, Philadelphia tried to go its own way and adopt a lot of restrictions. It does have certain powers that other localities do not have, but it is frequently going way beyond that in terms of the firearm restrictions. Pennsylvania also has preemption and state preemption of local firearm control, so there’s been a number of cases where Philadelphia tried to impose different restrictions. It tried to ban what the city called “assault weapons,” which are nothing more than commonly possessed rifles.

The courts have invalidated a lot of what Philadelphia has done. One reason the courts have given [for their invalidations] is that the right [to bear arms] is constitutionally protected, so it’s a manner of statewide concern—not a local manner as to what gun restrictions there are. In the instance you mentioned—the requirement of a permit to open or concealed carry in Philadelphia—the state allows Philadelphia certain restrictions. But, by and large, there’s a number of other restrictions that Philadelphia is trying to make, but the courts, generally, have put the skids on them. Most of the gun restrictions in Pennsylvania are going to be made by the legislature, and they’re, by and large, very reasonable. [The legislature] is not going let a locality like Philadelphia get away with violating the citizens’ rights under the Pennsylvania Constitution and the Second Amendment.

I’m familiar with certain states, particularly conservative ones, imposing regulations on abortion providers such as  square footage of facilities or proximity to hospitals, right up against the so-called  “undue burden standard” from Casey. Are any left-leaning states doing something similar with guns: making it inconvenient to get them without infringing on the constitutionality of firearm possession?

They pick and choose. If you’re a gun owner, you’re going to be more restricted, and if you’re somebody who is more infatuated with left-leaning values, you’re going to be given a lot more breaks. I’m thinking about, for example, the adjacent states aspect. Pennsylvania is next to New Jersey, and you’ve got that case, which became rather infamous last year, but it’s happened to innumerable people.

A woman, who had a Pennsylvania carry permit, gets arrested in New Jersey, not knowing that they don’t issue carry permits and certainly not to out-of-state residents. So they then want to put her in prison and do all kinds of things to her. But, finally, the governor came through and pardoned her. But this is happening to people going through New Jersey and also New York, people traveling up and down the Eastern Seaboard. This also happens to people in California. These states are extremely restrictive. They’re way over the top in terms of what the Second Amendment does not allow them to do. Fortunately, in many cases, courts in those states have upheld this, but I think, by and large, in the United States, there are probably forty-two states that have fairly reasonable gun laws. Then, there are a handful, the other eight or so, that have restrictions that I think go way beyond the pale in terms of what the Second Amendment allows.

For our last question, I’d like to ask you about the historical shift of the Republican Party, as of late, to becoming more unabashedly pro-gun. Some of the proposals during the Nixon administration, for example, such as to ban handguns seem very restrictive even by certain standards on the left today. I’m wondering if you have some theories as to how this transition took place in the Republican Party.

The positions of the parties do shift, but now more than ever it’s pretty historic how far out the Democrat Party has gone. It was never like this before. They have been making proposals almost as extreme as the Australian gun confiscation model. Hillary Clinton had advocated this, for example, during her presidential campaign. At the same time with Republicans, many of them, I think, reflect the core values of the American population at-large. If you do the surveys, one thing you know is that half of the households in the United States have a gun, and that is reflected in terms of the electoral politics. People believe they have a constitutional right to have a gun, and they don’t want to go to prison for having it. Yet you keep having these laws advocated that would incarcerate them for constitutional activity.

You’ve got the ‘old line’ Democrats or the so-called ‘Blue Dog’ Democrats; most of them respect Second Amendment rights, and they don’t vote for these kinds of extreme measures. But I don’t know if they are a dying breed. It’s gotten more extreme recently.

Thank you for speaking with us today, Mr. Halbrook.

Thank you.

Erich J. Prince is the editor-in-chief at Merion West. With a background in journalism and media criticism, he has contributed to newspapers such as The Philadelphia Inquirer and The News & Observer, as well as online outlets including Quillette and The Hill. Erich has also spoken at conferences and events on issues related to gangs, crime, and policing. He studied political science at Yale University.