L&CP Symposium 2019: Gun Rights & Regulation Outside the Home | Panel 2

KATE SHAW: Rewinding– OK, everyone. Welcome to our second
panel of the day. My name’s Kate Shaw. I teach at Cardozo Law
School in New York City. I’ll be– thank you– the moderator of
our second panel. So the topic of the second panel
is “Regulating People, Places, and Products.” And obviously, a lot of
the most pressing questions about gun regulation involve
interactions between the Second Amendment and various efforts
to regulate people, and places, and products. So as the first
panel alluded to, Heller suggests, in one of
its most famous paragraphs, that certain kinds
of regulations of some people, and some
places, and some products, are presumptively permissible. But what it says about
those things is cursory, and it is subject
to interpretation, and it is very much being
contested right now. So this panel is going to
dive into various dimensions of those questions. So our panels are going to speak
in the order in which we’re sitting. And I’m going to very
briefly introduce the three. So Brannon Denning, first,
teaches at Cumberland Law School at Stanford
University, writes broadly in constitutional law,
including the Second Amendment, has published in lots
of top law reviews and written several books, most
recently, Guns and the Law– Cases, Materials,
and Explanations. Next, we’re going to
hear from Bob Spitzer who is the Distinguished
Service Professor and Chair of the political
science department at SUNY Cortland, the author of
literally hundreds of articles and 15 books on a number of
subjects, including on guns, including most recently
Guns Across America– Reconciling Gun
Rules and Gun Rights. And finally, we’ll hear
from Jake Charles who’s the founding Executive Director
of the Center for Firearms Law, the person responsible
for putting today together. He’s a graduate of Duke
Law School, a former clerk in the Southern District of New
York and the Fourth Circuit, and practiced at several
law firms before, I guess, returning to Duke. So I will just turn it over now
and mostly get out of the way. BRANNON DENNING: Thank you. Thanks, Kate. Thanks to Joseph and
Darrell and to Jake for the kind invitation. I say at the
beginning that I’m so glad that Marianne
confessed that she had not done her homework either. But and so it lets me
feel just marginally less guilty about such
a tardy repayment on the hospitality
and invitation. Nevertheless, I do
have sort of an idea of what I’m working towards. And the title of my paper
is going to be called– with apologies to
Richard Boone, which is a reference that only people
of a certain age may know– “Have Gun. Will Travel?” And what it was spawned by– thank you for the
delayed laughter– [LAUGHTER] –like my class. So it was inspired by
a case that the Supreme Court, at least for now,
is going to hear next term. It’s called New York State
Pistol and Rifle Association versus New York. And I want to talk a little bit
about the case and the Second Circuit’s decision,
which had rejected a number of
constitutional challenges to a New York City
rule, and then try to– originally, I was
going to say something very jejune about critiquing
the Second Circuit’s analysis. And while I was thinking
about it– and it would have been a very
sort of workaday critique of the underlying decision. And instead, when I was reading
something completely different, it struck me that there was a
different angle that one could bring to bear on not only
this case, which for reasons I explain is likely never
to see the light of day, because it’s probably moot now. But I think it does
shed, or it has the possibility of shedding,
some light on a particularly troubling aspect, which we’re
addressing here broadly today, which is whether
and to what extent the Second Amendment
and gun rights extends outside the core
identified by Heller and extends out into the public. And if so, how far
and how robustly? And so I’m hoping that where
I ended up after giving this some thought is somewhere
a little bit more interesting than where I
was going to land before. So here we go. New York State Rifle
and Pistol Association involved a New York City– it was really a rule,
police department rule, that interpreted the sort
of scope of what were called “licensed premises.” As you probably
know, it’s very hard to get a license for a firearm
in New York state generally or New York City in particular. In general, the state
defers to localities. New York is a may-issue state. So if you want any kind
of firearms permit, local law enforcement has
a great deal of discretion whether or not to give you one. The hardest, of course,
to get in New York City are concealed carry permits. Not quite as difficult,
but still not easy either, is a so-called
“premises license,” which allows you
to keep a firearm, which is defined as, I
believe, a pistol, revolver, or certain kinds of
rifles and shotguns of a particular length. And it’s associated
with a single address. Now, until recently,
if you wanted to take that firearm
to a shooting range or engage in a
shooting competition, you could unload it, put
it in a locked container, separate the firearm
and the ammunition, and then you could go,
say, to Connecticut, or you could go to
upstate New York, and go to a shooting
range, or engage in shooting
competitions, whatever. Allegedly– and
the extent to which this problem was a serious
one, we don’t know– allegedly, the police began to report
they would catch people really with firearms either
not properly stored or where they were carrying them
nowhere near a shooting range or where nobody knew there
was a shooting range. And so they basically
changed the rule to say, all right, if you have a
premises license for a New York City address, you can only visit
shooting ranges within the five boroughs– basically,
within the city limits. And apparently, there
are like 11 or so. So it’s possible. But if you wanted to go to a
shooting competition and take your own firearms, which it’s
understandable why people would want to do that as opposed
to using somebody else’s, you couldn’t. If you wanted to take
your licensed firearm to your second home, say, in
the Hudson Valley or whatever, or Westchester, wherever, you
couldn’t because you would be leaving the five boroughs. So a number of plaintiffs– I think there were
four, three of whom wished to transport
their guns for inter and intrastate
shooting competitions or to take them to
particular ranges. One person also– it was
a second home owner– wished to transport his
weapon to his second home and was unable to do so. They sued. And there was some sort of
extraordinary machinations on New York City’s part to try
to get the case thrown out. They first started an
administrative proceeding to alter the rule. They filed papers with
the US Supreme Court after the court granted cert,
saying, please delay briefing. There’s a chance that
this will all change. And of course, I
somehow missed this. But as Jake helpfully
informed me last night, New York state actually
changed the law– what was it? This summer– in order
to basically return it, I think, to the old rule
where you could take it as long as it was disassembled,
and you could take it outside the city limits. So really, my talk ought
to stop here, I suppose. I’ve nothing more
to say about a case. It’s not going to be
interesting, but I’ll press on. I’ll persist. The Second Circuit–
so the plaintiffs brought four
constitutional claims. They brought a Second
Amendment claim. They brought a Dormant
Commerce Clause claim. They brought a right
to travel claim. And then they also brought
a First Amendment Freedom of Association claim. The Supreme Court granted
cert only on the first three. And the Second
Circuit’s analysis did something probably that you
would fully expect it to do. It had a section on
the Second Amendment. It had a section on the
Dormant Commerce Clause. And then it had a
section on the right to travel as well as
on the First Amendment. So it treated each one of
those constitutional claims discretely. The Second
Amendment– it applied the Second Circuit’s version
of intermediate scrutiny. It sort of assumed for
the sake of argument that there were some aspects
of the Second Amendment close enough to the
core that application of intermediate
scrutiny was warranted. It said, of course, a
protection of health and safety, which is the justification that
New York offered for the rule– [COUGH] Excuse me– was an important
governmental interest. Indeed, it said it’s compelling,
which is hard to argue with. And then it said, and
we think that it’s a substantial
enough relationship. Really, what they did
was they sort of said, well, plaintiffs
haven’t demonstrated– which is sort of an odd
little bit of burden shifting. It said, the plaintiffs
really haven’t demonstrated that there’s any serious
interference with their right to keep and bear arms. They’re free to apply for
another premises license in the case of the homeowner. Nothing is preventing
the other plaintiffs from traveling to use
guns for target shooting or for practicing,
even assuming those are kind of penumbral
Second Amendment rights, as cases from the Seventh
Circuit have suggested. And we just don’t think that
there’s very much of a– any kind of burden is minimal
and probably incidental. As for the Dormant Commerce
Clause claim– and Dormant Commerce Clause is
probably the other passion that I have in addition
to the Second Amendment. And even I, as much as I love
the Dormant Commerce Clause, it was a pretty weak
claim to begin with. There was nothing in the
record to suggest that New York City had passed this
as a kind of sop to city-based firing
ranges or otherwise to try to enrich shooting
ranges of New York. They would probably
like to get rid of the shooting ranges that
exist in the five boroughs if they could. But case law suggests
that they cannot. And then finally, the
right to travel– this was very interesting because
the Second Circuit articulated a pretty narrow
version of the right. It said, well, the right to
travel constitutionally is only implicated if you’re
actually deterring people from traveling, if you
are penalizing them for engaging in
interstate travel, or if the law was intended
to do any of those things. And as I’ll talk
about in a second, the right as recognized
by the US Supreme Court is a little bit more
robust than that. And the case laws
suggests a little bit broader right, and that’ll
become important in a minute. And I thought it particularly
curious that the court only cited– the Second Circuit only cited
one US Supreme Court right to travel case. The rest of the cases it cited
were its own Second Circuit cases. And it ignored some of
the most recent right to travel cases that the
Supreme Court has handed down. So I think I’ll skip– in the paper, I’m
going to talk about why I think that even the sort
of disaggregated analysis that the court engaged in was
weak in some important areas. But I’m going to put that
to the side, because I want to talk about what I think
is the more interesting, I hope, the more interesting
angle to take on this. And that’s to look at this case
as one involving hybrid rights. So when we last
saw hybrid rights, they were featured in Justice
Scalia’s majority opinion in Employment
Division versus Smith. Scalia was explaining why
generally applicable laws that incidentally burden
religious observance are subject only to the
rational basis test. When you had a number of cases– Yoder, for example, involving
the Amish and school attendance laws, Myers and
Pierce, which had sort of religious
overtones, kind of– you had cases like
Sherbert versus Verner, in which unemployment
compensation was held to have been
unconstitutionally denied to a Sabbatarian who
refused to work on Saturday. And Scalia said, well, look. This is not a, quote unquote,
“hybrid rights” case. Those involved other
constitutional interests other than free exercise,
including the right to raise your children or
the right to free speech. He talked about
West Virginia Board of Education versus Barnette. And a lot of people at the time,
and I think I was one of them, thought, well that was sort
of a makeweight argument. It just seemed
like he was trying to dispense with some
really inconvenient case law in order to articulate
a brand new rule, but without sort of a
genuflecting to stare decisis. I’ve decided, after reading
some of the literature about hybrid rights, I’ve
decided that I was probably too hasty to write it off. It seems like that
once you begin looking, you see hybrid
rights or other types of constitutional
combinations everywhere. It doesn’t have to
just be hybrid rights. You think about
McCulloch v Maryland. You have power-power
cases, right? You combined a article 1 power
with the necessary and proper clause. And you get a result
that might not have been possible under
either independently. And most recently,
hybrid rights sort of made an appearance
in Obergefell. It’s unclear how the
alloy quite works. But the court quite
clearly thought that there was an interaction
between the due process and equal protection
clauses in that case, and that maybe even if the
due process clause, on the one hand, standing alone,
or the equal protection clause standing alone
wouldn’t have produced the results that came about. I’m skeptical, but anyway. But assuming it didn’t,
certainly, the Court’s– Justice Kennedy’s
majority opinion says the two working
in tandem made the result almost inevitable. And so I think that those
right-right combinations feature in a lot of areas of
constitutional law and that we ought to maybe take those
a little bit more seriously and try to see– the part that’s undertheorized
is when you combine– and I’ll bracket
that for a second. But let me make the
case that I think that a case such as
the New York case furnishes an opportunity
to consider how the Second Amendment, on the one hand,
and the right to travel, which itself is a hybrid
right, on the other, interact, and whether that interaction
wouldn’t at least require the state to produce much
more evidence than they did that the rule in place
was necessary to protect the public health and safety. Let me back up just a second. I said the right to travel
itself is a hybrid right, and it is. John [INAUDIBLE] once said
that the court historically has been almost smug
in its reluctance to root the right in a
particular constitutional provision. And indeed, the court
mentioned several in the course of
its different cases. And in some sense, this
is because the right to travel itself is a kind
of, you know, has many facets. There’s the right to
ingress and egress. There’s a right to
interstate mobility. There’s the right to travel
and foreign commerce. And there’s also the
right to be treated once you enter a state as
a friendly visitor, not an unwelcome alien. And when you
establish residency, you immediately have equal
rights with longtime residents. You can’t discriminate on
the basis on the length of residency in those cases. So those different
facets of the right have been attributed variously
to the Commerce Clause, and particularly the Dormant
Commerce Clause, the inability of states to limit the
movement of persons and things in interstate commerce. The Privileges and Immunities
Clause of Article 4, Section 2– that’s the one that
says citizens a state shall have the privileges,
immunities of citizens of the several states. The Equal Protection Clause– in fact, there are a number
of cases from the ’70s and early ’80s in which
the right to travel and the Equal Protection
Clause work in tandem to invalidate restrictions, for
example, on newcomers receiving various kinds of
welfare benefits or other state sort of benefits. The nature of the Union– early cases just sort of said,
look, the right to move about in this country is just
part and parcel of the fact that we’re one nation and not
kind of a loose confederation. And then finally, most
recently, in 1999, there was a case called Saenz
v Roe, where the court said, look, the right to enter a state
and begin enjoying benefits on terms with longtime residents
is a privilege or immunity of national
citizenship and pointed towards the Privileges
or Immunities Clause of the 14th
Amendment as a source. Well, wherever you
want to ground it– and some aspects of the
right to travel, I think, are grounded better in
some clauses than others. But my point simply is
that the court often, when it talks about the
right to travel, it will cite all of these and
say all of these work in tandem to support the notion
that we have the right to move about freely
and that state laws that deter that, even– forget penalize, just deters
that interstate travel– the state has to justify. And the Court is sort
of cagey sometimes. Sometimes it uses
strict scrutiny. Sometimes it’ll
sort of say, well, it isn’t even rational to make
these kinds of distinctions, when really, they’re
not really applying a kind of deferential
rational basis test. They’re doing something
a little bit different. So should it matter that
this case, the New York case, involves both the Second
Amendment insofar as the Second Amendment does have
these sort of core rights to protect oneself in
one’s home, at least as to the person
with the second home, or that it has these penumbra
rights, which the Seventh Circuit has recognized, that
part and parcel of exercising your Second Amendment
right includes the right to obtain and
maintain proficiency in the use of the
arm, practice with it? You would think
that you would want the people who chose to own
guns to at least know how to use them safely and accurately. Should it matter
that those aspects of the Second
Amendment are involved, plus the right to
travel is involved? And I would say yes. I think that the two in
combination should require– and I’ll argue this at a little
more length in the paper. I think it should have triggered
a responsibility of the city to demonstrate something
more than it did to justify the maintenance of the rule. I think that just
sort of gesturing towards what Holmes called
“the convenient apologetics of the police
power,” and then put the burden on the plaintiffs
to demonstrate exactly how their right had been
burdened and to what extent their right had been burdened,
I think gets it sort of– it’s like looking through the
wrong end of the telescope. And I think that looking at this
as a hybrid rights case might make it a little easier
to shift that burden back where it belongs, which
I think is on the state, and at least require
the city to come up with something a little more
concrete than an affidavit of the former licensing
officer, who says, yeah, there were these problems. A cop’s got a lot to do. We can’t be checking everybody’s
premises license, making sure that they’re where
they’re supposed to be and that they’ve complied
with all the regulations. I just think that that
doesn’t comport with what it means to have a right. And even if the right
to travel itself and the Second
Amendment independently wouldn’t produce
the result, I think the two in tandem
in this case does. Now, let me make one
important qualification. And I think that
this is sort of– I want to try to
be appropriately modest in my claim. I’m not sure that I would be
willing to jump from this case, traveling from point A
to point B with a license in order to get to a
shooting competition or go to a shooting
range of my choice. I wouldn’t be willing
to jump from there to saying that this hybrid
right idea has a whole lot to say about the
concealed carry debate. I’d have to think
more about that. But I’m not sure that I
would be willing to make that step, in large part because
I think the right to travel and all that has sort of
existed alongside regulations of concealed carry, just
as an historical matter. But again, I could be persuaded. But I think I’ll stop there. I look forward to
your questions. And I look forward to hearing
from my other panelists. KATE SHAW: Great. ROBERT SPITZER: Mr. DeMille? [LAUGHTER] KATE SHAW: I wonder if we’re
going to be in the way at all. We’ll see how far it goes down. JAKE CHARLES: Do you
Suddenly, this room feels a little bit like an
air raid shelter, doesn’t it? [LAUGHTER] Is this amplified here? Can you hear me
standing over here? OK. All right. KATE SHAW: The suspense. ROBERT SPITZER: OK then. [LAUGHTER] The movie will
start in 12 seconds. KATE SHAW: It’s going to be
worth it when we get to zero. ROBERT SPITZER: I
think we’re showing The 10 Commandments, directed
by Cecil B. DeMille, by the way. Ah. I’m always so grateful when
these things work, you know? Good morning. Pleasure to be here. Thanks to our
organizers and hosts. So this is my paper. That’s the title of the paper– pretty descriptive. To Mr. DeMille, can you
put that on the side screen too, that you suggested
to me, just so it’s like, if you’re sitting
there, you could– he said he could put it over– Maybe not. It’s fine. It’s fine. Don’t worry about it. So gun accessories–
well, that worked. Oh, here we are. And this is a fairly
brief summary of my paper. There are things
that I’m leaving out from the presentation. So there’s a new wrinkle to
the Second Amendment debate. That is to say, are gun
accessories protected? And this might not seem
like a real thing to some. But in fact, recent
legal arguments have been advanced to provide
Second Amendment protections for ammunition magazines
and guns silencers. And on the left in
the bottom there, that’s a 100-round
drum magazine, which was used by the– not that actual one, but
was used by the mass shooter in Ohio not very long ago. So in the case of Duncan
versus Becerra there, a federal judge struck
down California’s longstanding 10-round
magazine limit that had been in California
law since, I think, the end of the 1990s, arguing
that owning a Large Capacity Magazine, LCM, is a core
Second Amendment right. And the judge used that
term, “a core right” three times in the decision, as
if to emphasize that it’s not only within the
Second Amendment, but it’s central to
the Second Amendment. That case is on appeal
to the Ninth Circuit, and we’ll see what the Ninth
Circuit has to say about it. In a different
case, US versus Cox, the Tenth Circuit
Court of Appeals rejected an argument before
them that gun silencers were protected under
the Second Amendment. That case was appealed
to the Supreme Court. The Supreme Court decided
not to hear the case. But the fact is
this case existed. It was floating around,
making this argument. And this is in the context
of some other things that are going on, because
these arguments have been advanced under sort of
some particular circumstances. Lower federal courts
and the Supreme Court are ever more conservative. President Trump has appointed,
and with great speed, a great many conservative judges
since he’s been in office. And pretty clearly,
these are judges who have a thorough Second
Amendment gun rights fealty. It’s almost unimaginable
that the Trump administration would appoint somebody who
did not have this loyalty. There is a growing
sentiment among some that in the words of Clarence
Thomas, as he said in 2013, that the Second Amendment
has been treated “cavalierly,” as “a
disfavored right,” and as “a
constitutional orphan.” These are comments that he
made in a dissenting opinion. And apropos of
Brannon’s paper– and I would emphasize, Brannon, you
should stick with that case because it’s not so clear that
it’s going to be a dead end. Because as you may know,
I think it’s next week, the Supreme Court is going
to hear oral arguments on whether to take the
case, even though it seems indisputably mooted because
New York City repealed the rule that was the
basis for this case. But it also raises
the question of, why did the court agree to
hear that particular challenge? It’s been, now, 10
years since Heller. And because it’s really
this sort of obscure rule, and Brannon described
it very nicely. Of all of the various
appeals to various gun laws that the court has decided
not to hear, why would they accept a challenge
to this obscure rule that probably only New York City
out of the entire country has? And there’s reason to
believe they wanted to hear it to expand the
definition of gun rights in some manner. So we’ll see what happens. I think you might be ahead
of the curve on this. So I think you
should stick with it. See what happens. So yeah, final point there. All this suggests that the
federal courts, including some members of
the Supreme Court, may be disposed and
poised to markedly expand the definition of
Second Amendment rights. Now, that’s not the
focus of my paper. That’s just the context,
because my paper examines the law, the history,
and crime-related issues surrounding ammunition
magazines and silencers, which are also referred
to as suppressors because some people don’t
like the original term, “silencers,” even
though that was the term used by the fellow
who invented gun silencers. So let me talk about
ammunition magazines. On its face, neither
Large Capacity Magazines– so-called LCMs, those
generally defined as holding more than 10
rounds– nor silencers are essential to the
functioning of firearms. For weapons like assault rifles
capable of receiving magazines, they can be limited
to magazines that hold no more than 10 rounds. That was the federal
law for 10 years. Alternately, magazines
can be fixed in place so that they’re not removable. I actually worked with a
friend of mine a few years ago, and we did this very thing to
the lower receiver of an AR-15 that the two of us built. He
was more the expert than me, but it was very interesting. So there are fairly simple
ways that you can still have functioning
firearms, but by, for example, fixing
magazines in place so that they are not
detachable or interchangeable. That’s actually how New York
state law reads right now. And neither impedes the ability
to use firearms, that is, their presence or absence. So I discovered this
interesting fact. We’re having this debate about
whether large capacity bullet magazines should be
regulated or not. And we date this to the
early 1990s, late 1980s. But in point of fact,
from 1927 to 1934, at least 18 states
enacted restrictions on ammunition magazines and/or
maximum magazine capacity. And I have the actual table. It’s at the end of
the presentation. It’s kind of hard
to read the print. Nine states imposed
firing limits on semi- and fully
automatic guns, ranging, depending on
the state, from guns that fired more than
one round at a time to those set at a max of 18. That is, if you owned a gun,
depending on the state, that, let’s say, in the case
of this state, fired 19 rounds without reloading,
that was against state law. You couldn’t have it. Five states supplied
restrictions to fully automatic weapons only. And of course, this
is before the 1934, leading up to the 1934 National
Firearms Act, which severely regulated fully automatic
weapons, Tommy Guns, things like that. And a majority of the states
had enacted regulations to bar or restrict fully
automatic weapons leading up to the 1934 federal law. But point is, five
of these states applied restrictions to
fully automatic weapons only, but did so by defining
the number of rounds that could be fired without reloading
or by the ability to receive bullet-feeding devices. And four states
restricted all firearms. It didn’t mention types. It simply said all
firearms that could receive any type of bullet
feeding mechanism or feeding device and fire
them continuously in a fully automatic manner. So you add those together. And this is a significant
number of states that are imposing
regulations that are really all about
bullet-feeding devices, to sort of state that broadly. Now, contemporary concerns
about Large Capacity Magazines– well, the sixth deadliest mass
shootings from 2009 to 2019 involved assault weapons
that utilize them. Large Capacity Magazines were
involved in more than half of all firearm mass
murders from 2009 to 2015. LCM mass shootings resulted
in more casualties, 155% more people shot
and 47% more deaths, than when the perpetrators
did not use LCMs. So that’s part of the
criminological concern. Since 2004, gun crimes
committed with LCMs have increased steadily. 2004 was the year that the
assault weapons ban lapsed under the terms of the law. It was set to be enforced
for only 10 years. Automatically lapsed. Congress then had the option
of renewing it, but it did not. And after that point, the use
of such Large Capacity Magazines escalated and
continued to escalate. States with bans on LCMs
had a 63% lower rate of mass shootings
than states without, controlling for other factors. That’s from a recent study. And frankly, there’s
no compelling argument for unfettered civilian
access to LCMs. There’s really sort
of one argument, which is there are some
people who would like to go to a shooting range and
fire off bunches of rounds without reloading
because some people find that fun, a form
of entertainment, a stress release,
things like that. And that’s a reason. But of course, you don’t
see anybody standing in front of a microphone after a
mass shooting and saying, well, I think we shouldn’t
impose restrictions because I like to go to the
firing range and fire lots and lots of rounds. But the fact is, it’s
kind of the main reason. There we are. Now, what about gun silencers? Well, from 1909–
and silencers were patented in 1908– to
1934, at least 13 states imposed restrictions
on silencers. Six of these 13 barred them
specifically for use in hunting and stipulated that
in their state laws. And as you know, silencers
were regulated nationwide in the National
Firearms Act of 1934. You can obtain them, of
course, just as you could then. But you had a fairly
substantial fee of $200, which was a
lot more money in 1934 than it is today, ATF background
check, fingerprinting, and photographing. And you can see
the pictures here. And there’s my iconic
hero, Homer Simpson, there, and Saul Cornell. Is he holding a
silencer or a loudener? [LAUGHTER] SPEAKER 1: I think
he said that that’s a device used to shoot
down black helicopters. ROBERT SPITZER: Oh, OK. I don’t remember that. But anyway, OK. Homer’s examining
gun accessories. Seems relevant,
so I included it. Reporting on the
demonstration of gun silencers when initially
developed and marketed by the inventor Hiram
Maxim, who was trying to sell his product to
the American military and European military
forces, Scientific American had a reporter who wrote
a fairly lengthy article about this. And there’s just a short excerpt
here saying that “the menace” of silencers– in this article– that have “greatly
enlarged the opportunities for the commission
of undetected crime– it is well understood
that the fear of detection is one of the most
powerful deterrents to the commission of crime.” And that expressed the concern
in 1909 and subsequently. Now silencers
today– you may know that a bill was
introduced in Congress two years ago in the
House of Representatives to deregulate silencers. The name of the bill there– the Hearing Protection Act. That’s significant
because that was the justification, the
reason for deregulating them. That Bill didn’t proceed
very far in the house. Early this year, was
reintroduced, but in the United States Senate. Both pieces of legislation
would drop the NFA requirements, making silencers legal for
anyone who could pass a Brady background check. So there is that sort
of minimal standard. And silences are currently
legal in 42 states, meaning eight states bar them. So what are the
arguments for and against regulating silencers? Well the arguments
for deregulation– to protect the
hearing of shooters– that’s the stated purpose of the
federal legislation– and those who are nearby. They reduced gun recoil. And, as many have noted, they
are rarely used in crime. Arguments against deregulation. Well, hearing experts
actually recommend that you wear
hearing protection, even if you’re using a silencer. Because of course they don’t
eliminate the noise entirely, far from it. They reduce it somewhat. But there are
professional societies that are involved with
studying hearing loss and making
recommendations and so on. And they say, look, even
if you have a silencer, you should put on hearing
protection anyway. And in fact, it’s more
effective than simply putting on a silencer. Moreover, the noise
that firearms make is a safety function. And I don’t mean to
suggest for a minute that somehow guns are
produced to be loud. I mean, it’s simply
a consequence of firing a firearm. But the fact is, whether it’s a
hunting situation in a sparsely populated area, in a rural area,
or in a gun crime situation, the noise of gunfire
is the first indication that there’s something amiss. That there’s something wrong. If you’re out
running in the woods, if you’re walking down the
street in a crime prone neighborhood in a city, and– I wrote an article about
this a couple of years ago. And as for the crime issue,
well, crimes have been used– sorry, silencers have been used
in crime since their invention. And I discuss in the paper,
going back to old newspaper accounts, because there are
no statistical or systematic analysis of how many crimes
or how many silencers. I mean, nobody
gathered that data in the 1910s and
1920s and 1930s. But it’s not hard to find news
articles that report on crimes that involved silencers. And clearly, they
were used in crimes. But that all but
disappeared after 1934, suggesting that the 1934 law
was pretty effective at doing what it set out to do. Moreover, in the
modern era, silencers can be used to defeat
what’s called shot spotter technology, which
I’m sure many of you are aware, particularly in large
cities and crime prone areas, they are sort of detectors
that authorities put up. And if they hear firearm– you know, if they
hear gunshots, it allows the police
to figure out where those shots are being fired and
to get to the scene right away. Oh, sorry. So conclusion, there is a
legitimate public interest, public safety concern
in restrictions on LCMs and on silencers. Accessories, after
all, are not firearms. And for me, Justice
Thomas’s complaints that the Second Amendment
has been treated as a cavalierly disfavored
orphan by the courts is without merit or evidence. I think the Heller
standard, set in 2008, has struck a roughly reasonable
balance between gun laws and gun rights. And finally, thinking ahead. Could it be in the
not too distant future that the Second
Amendment umbrella would be applied to designers– Gucci, Louis Vuitton? Even Moe over here. That’s Moe. But these are
actual pictures of– there’s Gucci right there. You recognize Louis Vuitton. I’m sure all of you have your
Louis Vuitton gear at home. Well, I thank you for
your kind attention. And Madam Chair, I yield
back the balance of my time. KATE SHAW: No, it’s– you
came in perfectly on time. ROBERT SPITZER: I’m sorry. This is that table listing
the states and the three categories. And I– you can see it’s
a lot of fine print. But it’s there. I just wanted to show
you that it’s there, so– all right. Thank you. KATE SHAW: All right. Well, thank you so much. [INTERPOSING VOICES] KATE SHAW: OK. All right, Jake,
whenever you’re ready. JAKE CHARLES: All right. Well, thanks for
that, and I regret that my presentation will not
be as entertaining as that one. So we’ve talked a lot today
about the interesting values that conflict when
firearms leave the home. I want to approach the issue
from a slightly different angle and talk not about what
happens when guns get outside, but on who can take them there,
or in fact on who can own them in the first place. How should we think about
these laws that disarm certain classes of people? Should we think
about certain people as outside the scope
of the Second Amendment altogether, like we
think of certain weapons as outside the scope of
the Second Amendment? And should we view
all classes of people the same for the purposes
of answering that question? These questions arise from
some conceptual concerns over how courts treat laws
that disarm certain people. I’ll aim to make
two points today. First is that we shouldn’t
just treat people the same as we treat arms and
activities at the initial stage of determining the
Second Amendment’s scope. And second that, despite
those good reasons, there are still some
classes of people that we can consider completely
outside the scope of the Second Amendment altogether. Now federal law bars nearly
a dozen categories of people from possessing firearms. Some of those bars
are temporary, such as for those for people
who are using or addicted to a controlled substance. Once the addiction or use ends,
so too does the federal bar. But some of the
bars are permanent. So for example, most felons
are forbidden from life from ever possessing firearms. So too are those who have
been adjudicated mentally ill or have been committed
to a mental institution. Some states have added
additional categories, such as violent misdemeanors
or those who abuse alcohol. And earlier this year,
its Seventh Circuit Judge, Amy Coney Barrett,
described two possible views of these types of
prohibited person laws. The first view,
she said, maintains that there are certain people,
like violent felons say, who fall completely outside the
scope of the Second Amendment. The second view is that
all people have the right to keep and bear arms, but that
history and tradition support the government’s right to
strip it from some people. The debate Judge Barrett
described centers on how to think about these
prohibited people’s Second Amendment rights. Are their rights non-existent
or just defeasible? Or to put it in
contract terms, are their rights void or voidable? Answering this question requires
us to choose between step one or step two of the
two-step framework that’s become the standard in
Second Amendment litigation. The first step asks
a coverage question. Are arms, activities or people
within the scope of the right? If they are not, and
the regulation is upheld and the government wins. If they are, then courts
move on to the second step and ask a protection question. Has the government met
its required burden under the appropriate
means and scrutiny? This two-step coverage
protection framework is the type of
inquiry that’s nearly unavoidable in
constitutional adjudication. For example, there are
some types of speech that are just not speech for
purposes of the First Amendment as we discussed earlier–
securities fraud, perjury. They’re not types of speech
that are speech under the First Amendment. So two other types
of weapons that are not arms for purposes
of the Second Amendment. Flamethrowers and suitcase
nukes, might be bearable arms, the courts are going to
kick those out at step one. They’re not covered at all. Judge Barrett argues that
we shouldn’t treat people like arms or activities. On her view, we ought
to move straight to the protection inquiry and
consider everyone as covered. The opposite view, adopted by
courts like the DC and Ninth circuits, says we should
actually just treat people the same as arms and activities. These courts have
held, for example, that felons fall completely
outside the scope of the Second Amendment altogether. Judge Barrett notices something
odd about these views. For instance, on this view, a
felon, or a class of persons, could be covered by
the Second Amendment and uncovered by the Second
Amendment a day later. If a person gets convicted
of a qualifying offense, they would automatically fall
outside the scope of the Second Amendment. No government action
would be needed to strip them of the right. It would be a self executing
consequence of the conviction. Arms and activities,
on the other hand, are often thought about
in more static terms. They don’t change
status day by day. We think of suitcase nukes as
always being out, for example. That’s why Judge
Barrett says we should view person based prohibitions
as protection questions only. As she says, all
people are covered. A person convicted
of a qualifying crime does not automatically lose
his right to keep and bear arms but becomes, quote,
eligible to lose that. Now one could think this
makes an important insight but perhaps overstates the
distinction between arms, activities, and people. Heller, for example, told us to
ask a question about arms that seems like a coverage issue. For example, are
they in common use? So there could be arms, for
instance, that were out– not in common use decades
ago that may be in common use today. So they may have been uncovered
previously and covered now. The reverse, we could also
imagine, might be true. For example, if revolvers
fall out of common use, might they lose their
constitutional coverage? But judge Barrett
is surely right that it’s peculiar
to think about people in such dynamic terms,
that whether they’re inside or outside the scope
depends on a self executing status determination. And it’s not how we view other
constitutional rights either. The 14th Amendment tells us
that states can promisingly disenfranchise felons. But if a state does not pass a
law to disenfranchise felons, then felons have their
right to vote fully intact, and they can go to court
to enforce that right. In other words,
felons are universally recognized as covered by the
constitutional right to vote. They’re inside the scope. But with respect to the
right to keep and bear arms, the view of the DC
and Ninth Circuits would treat the same group
of people much differently. What this view would mean is
that, even if no positive law barred felons from
possessing firearms, they would have no
right to go into court, no standing, to challenge
other firearms restrictions, like regulations on
high capacity magazines or on what it takes to obtain
a concealed carry permit. Because on this view,
the constitutional right doesn’t extend to
these people at all. Their privilege to own
guns would exist solely as a matter of
legislative forbearance and not as a matter of
constitutional certainty. So this anomaly gives
us at least some reason to think that there are–
that we should treat people based prohibitions
differently than we treat arms and activities. Why would person
based prohibitions for one constitutional
right be coverage questions and for another be
protection questions, even for the same group of people? But those reasons
also don’t justify treating all person
based provisions the same and simply moving the protection
inquiry for everyone claiming the right to own a gun. For example, a few think that
toddlers, or those unlawfully residing in the United States,
can invoke the Constitution’s right to vote. Those are coverage issues. We think of some people as
simply outside the scope. So to me, that seems the same
with the respect to the right to keep and bear arms. There are some
classes of people that are simply outside the scope. Again, minors come to mind,
though there might be questions about the age of majority. Consider also the language
of the Second Amendment, the right of the people
to keep and bear arms. The Heller majority
appears to have read this phrase narrowly–
to apply to citizens, and not just to citizens but
to law abiding and, perhaps separately, responsible ones. As Justice Stevens noted
in dissent, the court itself reads the
Second Amendment to protect a subset
significantly narrower than the class of people that
are protected by the First and Fourth Amendments. When it finally drills down
on the substantive meaning of the Second
Amendment, the court limits the protected
class to law abiding, responsible citizens. The upshot, then, is that Judge
Barrett’s important insight identifies an anomaly in
how some Second Amendment challenges are adjudicated. But that doesn’t
mean we should treat all people based questions
as protection questions. Some can and should be
decided at the coverage stage. And one way to distinguish
between which categories we should treat at
the coverage stage and which at the protection
stage is to leverage Frederick Schauer’s
notions of defining out versus defining in for coverage
questions for Constitutional Rights. On the defining in method,
we construct a theory about the underlying
purpose or goals of the constitutional right
and define in those people or conduct who fit
within that theory. This requires a fairly specific,
and at least moderately well settled, version of
what the right is for. It focuses on the positive. Do we have reason to include
this person or conduct? On the other hand, the
defining out method starts out more ecumenical. It takes what Schauer calls an
intentionally broad and coarse view of what the right
is for and defines out those individuals or conduct
for which we have no good reason to grant coverage. The defining out view errs on
the side of over inclusiveness. We exclude things
from coverage only if we find there
is no good reason to grant them protection from
the power of the government. And for that, the
onus is on those arguing for a lack of coverage. For example, in the
Second Amendment, we lack a widely agreed upon
theory of the rights, purposes, and goals. Competing views point
in different directions, making the defining in
view likely to appeal only to those who adopt an underlying
theory in the first place. By contrast, the defining
out view might take a course and intentionally over
broad view of what the Second Amendment is for. Say, that it covers all arms
bearing for lawful purposes. Rather than define
in those persons or conduct who fit
a specific theory, we would define out those for
whom there is no good reason to grant coverage. On the defining out
view, again, the burden is on those arguing
for lack of coverage. Consider again the
question, do second graders have Second Amendment rights? To put it in Judge
Barrett’s terms, Heller says the Second Amendment
protects all Americans, and children are Americans. Despite some
intuitive appeal, we don’t have particularly good
reasons to protect children. They typically won’t
have a great need for armed self-defense. Teachers, guardians,
and parents are often required to maintain and
ensure their welfare. They weren’t allowed to
serve in the early militias and are not allowed to
serve in the military today, so they won’t help advance the
cause of national security. And due to their fragility,
immaturity and youth, they won’t make
great compatriots in a fight against
government tyranny. Since we have no good
reason to grant coverage, we can define them out. They can thus be considered
outside the scope of the right. This way of thinking
about prohibited persons puts the burdens on those
who would exclude coverage, but it doesn’t, like
Judge Barrett’s view, make all people based
questions ones of protection. Sometimes the burden is met,
like for small children, and we can exclude
them out altogether. Query whether the same is true
for the class of non-citizens, or even a smaller subset
like those unlawfully residing in the United States. Courts have split
on this question. Some have said they are
outside the scope of the right altogether. Others hold or assume
they fall within the scope but find that the
government can nonetheless permissibly dispossess them. To resolve that
split, courts should test whether those
arguing against coverage have met their burden to define
out this class of people. I’ve tried to show here how
person based prohibitions are multifaceted and complex. On the one hand,
we shouldn’t just treat classes of
people the same as we treat arms and activities. People are definitely situated. At the same time,
that doesn’t require us to treat all people based
prohibitions as protection increase and move straight
to the second step without considering whether
this person is within the scope at all. Some, like small children,
are just outside the scope. We can use the
defining out method to distinguish between these two
different person based claims. That puts the onus on
those who would exclude from coverage and thus
likely moves more claims into the protection stage. And that, I’d argue, is
how it’s supposed to be for a constitutional right. Thank you. KATE SHAW: OK. All right, well
thank you so much. And we do have some
time for questions, so I will start by
posing a couple. So first, so Brandon, I
want to start with you. I thought– fascinating
presentation, and you had kept me
in suspense about what you were going to talk about,
so I was not disappointed. And it was also a great
segue from the first panel, obviously. Because we have rights
in conflict, and here we have rights in combination. And so as I
understand it, you’re suggesting that there is some
value in an analysis in which courts undertake
to evaluate rights and interests in combination,
or in tandem, or in using some kind of hybrid
rights analysis. So I guess I have two questions. One is, is that,
as a descriptive or a normative matter,
how constitutional rights evaluation works, right? So you mention a bunch
of cases, many of which I haven’t read in some time. But Obergefell I
have read recently. And you even did express
a little skepticism as you invoked Obergefell. But I would agree
with what I took to be your skepticism, which
is that the equal protection and due process
arguments in Obergefell are inextricably interlinked. But it is not as though you
have an insufficient due process argument or interest and an
insufficient equal protection interest that you aggregate
and get a plausible or winning claim, right? That’s just– you
know, typically, and I think this is true
about the earlier cases you invoke, you
have a stand alone winning constitutional
claim that is informed by other kinds of
interest or considerations. And so it’s not quite additive. So I guess, if that’s
the case, then we can gain some understanding
about the nature or scope of the interest by the
other constitutional provisions or values that it invokes
or is informed by. But is it really a
hybrid kind of analysis as you’re suggesting? So I guess that’s question one. And question two, which
actually takes as a given that there is some real
value in this mode of analysis and asks whether
it might be worth thinking about aggregating
interests in the way that you are suggesting on the
regulatory side of the balance. And it’s not– maybe it’s a
move that courts have made, but I haven’t seen it much. So New York invokes–
as of course lots of governments do in
this kind of regulation do– health and safety. In the case that
you’re describing, we have various versions of
some kind of First Amendment interest. A potential chilling bystander,
sort of Eric style analysis. And as you’re talking
about the right to travel, I was thinking, is there
a right to travel interest we could think about or
imagine on the regulatory side of the balance? But if this is a valuable or
fruitful mode of analysis, is it one that should be
deployed kind of on both sides of the balance? BRANNON DENNING: Those
are great questions, and I think they’re
related to the question that I don’t have
a good answer to. Which is, when is it
appropriate to disaggregate and when is it
appropriate to combine? And what sort of factors
figure into that? Now on the first one,
as a descriptive matter, it’s possible that this hybrid
rights analysis is indeed just to make weight. And in cases like
Obergefell, it would have been easy for the court
to rely on one or the other– either due process
or equal protection. But that simply
raises the question, why does the court
feel compelled in some of these cases
to appeal to both? Why did they act as if this
hybrid rights thing matters? There’s a sort of belts
and suspenders saying that helps shore up the
legitimacy of tenable but not clearly established
constitutional claims. And I think that’s what’s going
on in some of those cases. I mean, when you read
those early 70s or 80s right to travel cases, you know,
sort of when the– you know, the kind of heady days
of Frank Michelman and, you know, we’re going
to use the equal protection clause to protect poor people. They weren’t they
clearly weren’t willing to describe
wealth as a suspect class, but it was often
convenient to use the right to travel married with the
equal protection clause in order to say,
OK, well here we’re creating classes of people who
are newcomers to the state, and you’re trying
to exclude them from certain types
of public benefits. That’s not what we’re about. But you could tell that there
was a sort of tentativeness to– the court was only willing
to go so far down that road, and of course then
retreated completely. On the issue of aggregation on
the regulatory side, I mean, there are other types of
clauses or combinations that sort of bolster
governmental power. And Michael [? Kunan ?]
has a great article about this in the
Penn Law Review from a couple of years ago. And if you’re interested in this
at all, I highly recommend it. I mean, Michael is
a fantastic scholar, and this article is a real gem. I can’t say enough
good things about it. And it was what got me thinking
about sort of rescuing me from my otherwise
very [INAUDIBLE] approach to the case. Michael talks about–
he said, well, hybrid rights are only
one type of combination. There are power combinations
too, McCulloch v. Maryland being one. Justice Breyer’s dissent in
the copyright extension case, where he says, look, at
all these sorts of powers operate to– we ought to think about that as
limiting, or in other words– sorry, power
combinations would tend to expand governmental
power when powers individually standing
alone may not produce the effect that was desired. So I haven’t thought about– I haven’t thought about
if you aggregate interests on the other side. But I kind of wonder whether
we don’t already do that. I mean, because it goes
to the strength of the– the strength of the
government’s interest in– the strength of the government’s
end, or the importance or compelling nature of
the government’s end, I would guess. KATE SHAW: And so maybe I’ll
just ask one more quick one in the interest of time. And so this is for Bob. I wanted to ask you– well, one, I wanted
to just flag something that I think you didn’t really
mention the presentation but that you draw. So this is like me a little bit
carrying water for the center. But you draw in the paper
on this wonderful repository of historical gun laws. And I did not know
that this existed, and I’m sorry I didn’t. But it seems like a
tremendous resource. And so I just wanted
to flag that that seems like a really
central piece of the paper. And so that’s one. And then two, something else
that I thought was fascinating, I’m always really
interested in the kind of relationship between
rhetoric and politics and law in this sphere. And you have this
wonderful little section in the paper about
the kind of evolution and of the valence of the
term “assault weapons.” And I just thought it was– I did not know
about this history, and I was just going to ask you
to sort of describe briefly. I don’t know if you want
to speak at all as to how what you’ve uncovered on
assault weapons in particular as a historical
matter might bear on courts’ evaluation
in future challenges. But I just wanted to
give you an opportunity to talk about those two
things for a minute or two. ROBERT SPITZER:
Yeah, that’s great. There is much rhetoric
which says that the term “assault rifle,” to
focus on that term, was invented by gun control
advocates in the late 1980s to sort of put a scary label
on these types of weapons to encourage their
regulation or restriction. But there are two
important facts about that. The first is that the term was
not invented by gun control advocates. It in fact came first from the
manufacturers, but secondly, more importantly, by the
civilian manufacturing companies that made these
things that tried to then peddle them, sell them, to the public. And a chief
advertising technique was to emphasize their
military derivation, their military resemblance. That it’s just like the
battlefield, you know. And this was central to their
whole advertising campaign. But then along comes
people starting to use these weapons
in mass shootings. And so there’s now
sort of this stigma. And so the gun manufacturers
and the political side, the NRA, are beginning to argue, well,
no, they’re sporting weapons, and insisted that they
be referred to that way to avoid the invidious
term of assault rifle and the military derivation. But of course, it
was developed for use by the military
in the late 1950s. The weapon came to be in use
by the military in the 1960s. It didn’t really enter– it was available to
civilians into the 1970s and the early 80s, but
very few gun owners bought these weapons. There was really no interest. They were kind of
expensive, sort of exotic. But then, in the
mid to late 1980s, China dumps a bunch of these
weapons, SKS type weapons, on the American market. They were sort of military
surplus at a cheap price. And, you know, they’re
now less expensive. People start to buy
them, and then they’re marketed pretty aggressively
by the gun manufacturers, partly because there’s kind
of a high markup on them. There’s more of a profit to
be made from these weapons. They’re more expensive. They have accessories. You can make money off the
sale of gun accessories. They’ve been referred to
as Barbie dolls for men. You know, you buy the Barbie
doll, you buy the dream house, you buy the Barbie– anybody? OK. All right. Sorry. I revealed too much, perhaps. But I did have daughters,
so that’s my excuse. And you know, the same
idea with assault weapons. And the owners will kind
of tell you these things. And they love the accessories,
interchangeable parts. That’s fine. But sort of like a
tricked out pickup truck has a much higher markup
than a subcompact, you know? The margin of profit is
bigger for the more expensive, more fancy motor vehicle. And the same kind of thing
applies for assault weapons as well. So I mean, the chief
difference is of course that these weapons
available to civilians fire only in
semi-automatic fashion. They don’t fire
fully automatically. Although, as has been
often noted, there are ways you can alter
weapons to do that. And military weapons also
have had the capability to fire in short bursts. Normally, a three round burst. So you’re altering
the firing mechanism, but the weapon is
basically the same. And for all of the emphasis
on what are sometimes called cosmetic features– which
is a fair criticism, like a threaded barrel
that can receive– that can receive a grenade
launcher, let’s say. I mean, that’s not really– I mean, that’s a military
attribute of these weapons, but it’s not really an important
aspect of their availability in the civilian market. But what is important
is the ability to receive large
capacity magazines. That really, among the
so-called military features, that’s the one that
really matters. And that brings into
play the whole question about bullet magazines. I talked about the
kind of assault weapons story a little
bit, just because I think it’s not real well known. And it’s useful to get to
the subject of magazines. KATE SHAW: Thank you. OK, so I want to
make sure we have time for a couple of questions. There’s a microphone in the
back, if we can pass it. Or if you don’t mind
just grabbing the mic so we can catch the recording. It’s right back there. Thank you so much. Yes, please, in the back
with the white shirt. AUDIENCE: I think you’ve
got to turn it on, maybe push that little button. KATE SHAW: Hello. AUDIENCE: Can you hear me? KATE SHAW: Yes. AUDIENCE: My name is Manal. I’m from Lebanon. I’m from the public policy
department across the street. Thank you for this wonderful
symposium, I guess. Really very helpful for me as
I think through thesis topics. I’m specifically considering
looking at small arms and light weapons production of the US and
its exports around the world, and I wonder if you
have any advice for me as I look through licensing and
regulation around these issues. If you would point me
to specific articles, authors, if you could speak
about this at all today. Thank you. KATE SHAW: Well, something
that we should probably take offline, because we’re
going to go to lunch soon. So I would say, like
specific references, I think people could
probably give you offline. But if anybody wants to respond
more generally to the question. ROBERT SPITZER: You’re talking
about American sale of– [INTERPOSING VOICES] AUDIENCE: Yeah. It’s the largest
around the world. Exports and imports are valued
at more than $500 million. ROBERT SPITZER: Yeah, America
is the world’s largest exporter of arms. And the Trump administration
has deregulated that to some degree. There is writing
on that for sure. I couldn’t tell you– I can’t be helpful, I’m
afraid, in that regard. But it should be pretty
easily accessible. And of course, gun
manufacturers are very interested in that
market, because they want to sell the product. AUDIENCE: Thank you. KATE SHAW: I suspect that
there’s a high density of expertise in this room. So I think if you
stick around, please anyone who knows anything
about this come find– what’s your name again, sorry? AUDIENCE: Manal. KATE SHAW: Manal. OK, so– AUDIENCE: Like canal. That’s my little trick. KATE SHAW: OK. Great. So please come find Manal. During the break. Yes, please. Joyce, right? AUDIENCE: Hi. Thank you. I have a question for Brandon. Thinking about the New
York case and the emphasis on being able to protect
yourself in your home, there are only 40,000 people in
the city of 8 and 1/2 million in New York who have a right
to have a gun in their home. And I wonder whether or
how that has come about. Do you have any sense of that? BRANNON DENNING: I mean,
I would assume that it’s a function of two things. I mean, I don’t know
what the percentage of people who have applied
for premises licenses unsuccessfully is. But it has everything to do
with the discretionary power that the chief of police
or his or her designee have in deciding who
gets those licenses. But I don’t know what
the rejection rate is. I don’t have a sense
of what that is. And it may be just that– you know, again, it’s maybe sort
of a cultural thing, that New Yorkers– maybe people don’t apply. Maybe they don’t
know that they could apply for a premises license. Or maybe they just don’t
feel like they want one. But I don’t have a good
sense of whether it’s something that is in demand
that is being restricted. AUDIENCE: Thank you very
much for coming here to Duke. This is really exciting to have
such a robust conversation. My name is Mason Rogers,
and I have a strong interest in the First
Amendment, specifically the freedom of religion. And there’s a group
in Pennsylvania who– there’s this guy, Sean Moon. He’s the son of the Moonies,
from all those big weddings and everything. He is Harvard
educated in religion, and he’s asserting that– and this kind of goes to
that culture of fear– that in order to maintain
his own personal sovereignty, and [INAUDIBLE],, they have
to kind of worship the AR-15. This is a real thing. He’s interpreting it to be
like the iron rod in the Bible. And I’m just curious like how
those two rights go together. He’s asserting Second
Amendment rights based on freedom of
religion, I think. And it’s kind of scary. I don’t whether to
be afraid of him or think he’s crazy or what. But does anyone have a
stab on, if Pennsylvania were to limit assault weapons,
would they have grounds for freedom of religion? ROBERT SPITZER:
The combined right. It’s reminiscent of the– it’s been years
and years for me, but I remember the snake
handling and peyote cases based on religion, right? Which would be relevant
to this, I would think. But I’ve not heard of– the Unification Church? AUDIENCE: He’s actually split. He and his mother had
a big falling out. Yeah, it’s the craziest thing. ROBERT SPITZER: This guy, OK. AUDIENCE: He has his own
podcast and everything. He’s crazy. But this guy is asserting that
it’s a key part of his religion that they have these
AR-15s in church. And it’s like this whole cult
that they say, oh, we’re just a regular Christian religion. They’re all sitting
in church with AR-15s. It’s crazy. ROBERT SPITZER: But it’s not
doctrine of the Unification Church. AUDIENCE: No, it’s doctrine– ROBERT SPITZER: So it’s
this sort of break off. OK. AUDIENCE: It’s a whole
new thing that he started. ROBERT SPITZER: OK. BRANNON DENNING: I mean, as a
general proposition, generally applicable neutral regulations
that incidentally burden religious conduct are
perfectly fine, subject only to rational basis tests. So he wouldn’t get– you know, there wouldn’t be– it would matter whether it was
a Pastafarian, or whatever, that those kinds of neutral
restrictions are perfectly OK. And I don’t think he would
get any additional traction by saying, well, this
combines my Second Amendment right with my free
exercise clause with my– I don’t get a sense that that
would find much purchase. JAKE CHARLES: Why is that
not different than traveling with a gun? BRANNON DENNING: In terms of– [INTERPOSING VOICES] JAKE CHARLES: –those values. BRANNON DENNING: Well again,
it gets back to the– it gets back to the when
do you combine question. And I don’t have a
good answer for why I think that combination
is ridiculous and mine is eminently
sensible, other than the fact that the latter is mine. Points for candor. KATE SHAW: Joseph is going
to get the host’s prerogative to ask the last question. AUDIENCE: I just have
one question, Bob, which I think is in the four
corners of your paper, which I’ve been puzzling through
since the presentation, which is how you think about the
sometimes criticism of assault weapons restrictions in
particular, holding aside large capacity
magazines and silencers. Which is the definitional
problem, key to those cosmetic features you were
just talking about. And I heard I think
sort of two answers to the criticism
in what you said. One is, these aren’t
just cosmetic features. These actually– those
criticisms were wrong, that at least the capacity to
accept a detachable magazine. That’s actually functional. So the cosmetic is wrong. Maybe that’s less true for
[INAUDIBLE] and other ways they’ve been [INAUDIBLE]. But the other response I think
I heard, or read in the paper, is that those are
cosmetic features and that’s why it’s not
a problem for the Second Amendment. These are just regulations
of cosmetic features. And if that’s true,
it should have no impact on anybody’s
self-defense right [INAUDIBLE].. And I wonder if both
those can be true or if you can have both
those things be true? But it’s a hard thing to– I think for the
And the way you’ve described that, it does– I mean, there is a simple
logic then to saying, look, if they are simply
cosmetic or incidental, why would there be an objection
to restricting those things? But the thing is that’s sort
of conflated with the larger debate about, what is it
about this type of weapon that distinguishes it from other long
guns that fire the same rounds, that fire in a
semiautomatic fashion? And the first
effort at regulation was back 20 something years ago. And they defined– well, in
the 1994 assault weapons ban, they defined those weapons as
having at least two features. And there were barrel
shrouds and threaded barrels and collapsible stocks
and things like that. But there is one additional
firing characteristic that is relevant, which
is, aside from the ability to receive large capacity
magazines, which is the ability to have the kind of greater kind
of control over the weapon that on the battlefield allows
you to lay down spray fire. That is to say, because it’s
more compact because of sort of the hand grips
and other things, it facilitates the
firing of rounds in sort of a spray fire manner. And so some of those features do
come into play in that respect. And so in that sense, those
things are not purely cosmetic. So there’s kind of– the convergence
of these two sort of views of how the
weapon is to be treated. KATE SHAW: All right. Well thank you so much
to the panel, everyone. It’s been great. [APPLAUSE]

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