The following is a rough transcript which has not been revised by The Jim Rutt Show or Bob Levy. Please check with us before using any quotations from this transcript. Thank you.
Jim: Today’s guest is Bob Levy. Bob’s a very interesting guy. He founded a very innovative company called CDA Investment Technologies back in 1966, right after he received his PhD from American University. And CDA was an early company. It had applied computer calculations, algorithms, et cetera to the financial industry. Now, it’s interesting that that’s where I met Bob for the first time. He had sold the company. I didn’t realize actually this bit until I did my research, that you sold the company originally to Elsevier.
Robert: Right, Dutch company.
Jim: Multi-line professional publishing company, famous for fucking people with scientific journal subscription fees. All librarians hate Elsevier. It’s quite interesting, very predatory. And then somehow or other Thomson bought them. And I’d had previous history with Thomson and somehow I got sucked into originally for a two day consulting engagement, but I ended up spending two years there helping at CDA. And Bob in those days had, after he had stepped down, I guess was that about age 50, something like that?
Robert: Yep, 50 years old.
Jim: He decided to go off, go to law school. What an audacious thing to do for a 50-year-old. And went to George Mason University Law School, quite excellent law school. And I guess you needed the peace and quiet, you’d come back over to CDA office late at night to study. And in those days I was burning the candle at both ends, trying to come up the gradient to get on top of the situation that we had there. And Bob and I had a number of interesting conversations late into the night at the old CDA office.
Robert: A quick aside about George Mason Law School, Jim, it’s now called the Antonin Scalia Law School. And the interesting sidebar there is that originally they planned to change the name to the Antonin Scalia School of Law and then somebody realized that the acronym would be ASSLAW. And so it then became the Antonin Scalia Law School instead of School of Law.
Jim: That’s too bad. I would’ve kind of liked that. And not only did Bob, after an illustrious business career building these cool companies, these cool products within the CDA company, go to law school at the age of 50, he graduated as a valedictorian. Right? Holy shit. And then he got two prestigious clerkships, one with the Federal District Court and then another with the top court short of the Supreme Court, the US Court of Appeals for the District of Columbia. Quite amazing for an old dude. As I was telling Bob before, in some sense he was partially at least an inspiration for me. I actually stepped down after my last business coup at the age of 47 and went out to the Santa Fe Institute and reinvented myself as a kind of fairly lowly researcher. I said you’re never too old to reinvent yourself, so I thank Bob, at least in part, for providing that very cool example. Then after his second clerkship, he was offered the position as a senior fellow in constitutional studies at the Cato Institute. What did that involve?
Robert: Well, I had become a donor to the Cato Institute. And so when I got out of law school, I approached the then president, Ed Crane. I told him if he wanted to keep my donation, he better give me a job. So essentially, I bribed my way onto the staff at Cato and became their, as you said, the senior fellow in constitution studies. And I did that for about 11 years before I joined the Cato Board of Directors.
Jim: Then in 2008 you became the chairman of Cato.
Robert: Yep.
Jim: And did that for, what, another 10, 15 years? Something like that?
Robert: 15 years as a board member and 14 years as chairman.
Jim: Okay, so let’s get down to today’s topic. We’re going to be talking about the second amendment, the right to keep and bear arms. About half our audience is US oriented. The other half is scattered across the rest of the world, so one of the characteristics of Americans is we’re known for our gun nuttery. That we are the most well armed advanced economic country in the world by a fair bit and we take that pretty seriously. It’s enshrined in our constitution. Well, it turns out that there is one legal case at the Supreme Court that was really pivotal in establishing the modern jurisprudence around the second amendment and that case was led by Bob Levy. So tell us a little bit about how you, as I recall, you’re not even a gun owner as I recall, at least at the time back when you were at CDA. How did you end up getting involved in this case?
Robert: I was approached by two fellows, Clark Neily, who’s now the head of the legal studies area at the Cato Institute, and another fellow at the Institute for Justice, which is a public interest law firm. And they suggested to me that it might be time to bring a second amendment case and there were several reasons for that. One was that the scholarship had taken a turn and there was a number of prominent liberals who had advocated for an individual right. One of whom was Sanford Levinson, another was Larry Tribe and the third was Alan Dershowitz. Now, these were all known liberals and yet they were advocating for a second amendment right, individual right to bear arms.
Another event was the Emerson case in the Fifth Circuit in Texas in 2001. And the third event was a Department of Justice memorandum where for the first time the federal government took a position under then Attorney General Ashcroft. Took a position that the second amendment declared an individual right? So Neily suggested to me it would be a good time to bring a challenge for whatever reason we can talk about later. The NRA had not done scope, so we decided to go forward with that. The lawyer from the Institute for Justice had other responsibilities and so it ended up being Clark Neily who were free and myself. And then the two of us hired a third lawyer, Alan Gura, who ended up arguing the case and he worked for subsistence wages. And so that’s how the case got started.
Jim: Interesting. It turns out the Institute for Justice is another area that we have overlapped on. When my wife and I started giving away our money, we set up a little foundation and the very first donee grantee that we made, the first grant we made was to IJ, Institute for Justice. And actually, we’re a middle tier supporter of them for a number of years, basically until Chip Miller retired. At that point, they’d gotten so big. They were bigger than the kind of things that we normally supported, so we basically graciously said, “All right, we’ve been supporting you for a number of years. It’s time for us to move on to other things.” And I know you were on the board there for a long time.
Robert: I was on the board actually for 25 years at IJ. And Chip Miller, who was the co-founder of IJ, he and I wrote a book together called The Dirty Dozen, which summarized what we perceived to be the worst supreme court cases of the modern era. And that book went through both the hard copy in a paperback version and got some notoriety.
Jim: I’ll have to read that book. It sounds right. Chip was a heck of a cool dude. We always enjoyed hanging out with him and talk about a guy who could have been rich and famous as a big law firm lawyer, but chose not to. Quite amazing. Really smart, tremendous charisma, et cetera.
Robert: Now living in Moab, Utah.
Jim: That fits him. Love to go out west and go hiking. That was his big thing. Anyway, we’re going to be talking here about the second amendment. And for those of you who don’t recall, and for those non-Americans, there’s no reason that you should recall. Second amendment was one of the Bill of Rights, which were a set of 10 amendments, and 12 originally that were proposed, that were passed, what, around 1795? Maybe something like that.
Robert: 1791.
Jim: 1791, so right after the Constitution went into force. 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. Now, this is an interesting and curious set of wording and a fair bit of the controversy over the years has come from this wording because you basically have two parts. You have a part that says a well-regulated militia being necessary, the security of a free people, comma, which is essentially a statement of intent. Prefactory, I think. And then the right of the people to keep and bear arms shall not be infringed, which seems a pretty straightforward statement. And if you didn’t have that first part, it would be quite clear what it meant. So the tension between the first part and the second part has always been part of the jurisprudence around the second amendment. Is that more or less correct?
Robert: Yes, that was clarified of course by the Heller Court in 2008. And the Heller read on the second amendment is that it conferred an individual right to keep it bear arms, not necessarily a right that was limited to members of the militia or to service in the militia. So that was the major holding in the Heller case, which was not about machine guns or assault weapons. It was about the right to own a ordinary garden variety handgun. And it wasn’t about the right to carry that gun outside the home. The Heller case was pretty straightforward and pretty simple was mostly about pistol in the home for self-defense.
Jim: Yep, and we’ll get to that considerable detail in a couple of minutes. The other constitutional amendment that has some bearing on these cases is the 14th amendment, particularly section one of the 14th amendment. 14th amendment was one of the amendments that was passed right after the Civil War, the core intent of which was to provide the full rights of citizenship to the recently freed slaves, but it was written in such a way that it was much broader than that and has been argued has now become essentially the law that most of the Bill of Rights and other constitutional rights granted to citizens, or at least barred from being infringed upon, apply to the states as well as the federal government. Originally, that was thought that most of the constitutional rights and bars against infringement only referenced at the federal level. In fact, the first amendment famously says Congress shall make no law.
And it’s pretty clear that that one, at least in its original scope, was aimed at the federal government. Second, not so clear. But anyway, here I’m going to read the 14th amendment for people so they’ll have that one in mind. This is section one. The other four or five sections have to do with other kinds of arcane things, but section one is kind of the meat of the matter. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the state wherein they reside. No state shall make and enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor did I to any person within its jurisdiction the equal protection of the law. So those are two of the key things from which this jurisprudence will have been built over the years.
Before we get to Heller, let’s talk a little bit about the only other case that reached the Supreme Court on the question of the second amendment and that’s Miller. What can you tell us about the Miller case?
Robert: Well, the challenge statute in Miller required the registration of machine guns and sawed off rifles and sought off shotguns as well as silencers. And the court in Miller said that militia in the second amendment, that term means all males physically capable of acting in concert for the common defense. And that suggested that this was a right belonging to all of us as individuals, but then the court mysteriously held that the right extended only to those weapons that were rationally related to a militia, not the sawed off shotgun that was being questioned in the Miller case. So that is sort of a mixed ruling. It puzzled legal scholars for more than six decades. I mean, if military use was going to be the decisive test, then you would think that citizens could possess rocket launchers and missiles. Obviously that’s not what the court had in mind. In fact, I think the folks who cite Miller, the anti-gun folks, they would be apoplectic if the court’s military use doctrine were logically extended to military weapons.
So I think because Miller was so murky, it should have been, and now of course is, interpreted very narrowly to allow restrictions on weapons like machine guns and silencers that have very slight value to law abiding citizens, but very high value to criminals. In other words, putting it a little bit differently, Miller applied to the type of weapon and not to the question of whether the second amendment protects individuals or members of militia. And that’s the conclusion that the Fifth Circuit then reached in a later case, the Emerson case. It found that Miller upheld neither the individual rights model of the second amendment nor the collective rights model. Miller simply decided that the weapons at issue, particularly a sought off shotgun in the Miller case, that weapon was not protected, whether it’s used individually or it’s used collectively because it’s not a weapon that would lend itself to the efficiency of a militia.
Jim: Now, of course us gun nuts, and I will confess that I’ve been a long time gun nut, have more guns than I would like to admit to and think that they are fundamental. And as they say, the second is there to protect the first, god damn it. I’m one of those kind of guys. And so I know a fair bit about this and one of the things that the gun nuts always like to bring out about Miller is that it’s factually incorrect. The sawed off shotgun, which was banned, was actually a military type weapon very close to that time. It’s the trench shotgun that was used in World War I when assault teams would attack the trench of the other side. There would always be a few guys in each squad with a sawed off shotgun to blast people when they got into the trenches.
So it’s just sort of factually incorrect. The whole thing, when I went back and reread it, and I go, “This is really bizarre, actually.” Because as you point out, the court holding that the shotgun is not a militia weapon, therefore it can be banned, is kind of bizarrely not what most people think when they think about gun control. Quite the opposite. Maybe hunting and marksmanship is okay, but military stuff’s not. As you say, a straightforward reading of Miller would say, yeah, can I take weapons? Sure, no problem. Machine guns, grenades, hell yeah. Those are militia weapons, but target pistols, no. Those can be regulated. You don’t use target pistols when you’re out fighting a battle. I should also mention that it was actually referenced in Heller by Scalia, a journal article called The Peculiar Story of United States versus Miller by Brian Frye in the NYU Journal of Law and Liberty.
He goes into the case in considerable detail. It’s quite interesting and I came away with the thought that this was entirely unprincipled and it was merely a pragmatic case that the courts decided shit birds like Miller and friends. And it turns out Miller was not a petty criminal. He was a part of a criminal gang that robbed banks, kidnapped people. I mean, the O’Malley gang, they’re a bunch of badasses. And my read at least was there was no principles in Miller at all. It was just a pragmatic decision. Hey, we don’t want shit birds like Miller running around with sawed off shotguns, so we’ll concoct a cock and bull story on why that’s the case without any real consideration to what happens if you generalize that decision.
Robert: Interestingly, it’s not entirely the fault of the Supreme Court that the factual record was incorrect. Fact finding is a function of the lower courts and the Supreme Court generally will accept the fact finding of whatever lower court came up with the history of the matter. And indeed, in Miller, the fact finding was erroneous and yet the court relied on it. And we’ve been relying on Miller since 1939 until the Heller case in 2008.
Jim: What went on between Miller and Heller in that period?
Robert: Nothing except for, as I mentioned, United States versus Emerson, which was a Fifth Circuit case which held that the Constitution protects the right of individuals. And this is a quote, including those not then actually a member of any militia to privately possess and bear their own firearms, such as personal individual weapons. And Emerson went on to say that the right isn’t absolute, so some persons and some weapons can be restricted. And indeed, in the Emerson case, Mr. Emerson’s second amendment rights were temporarily curtailed because there was reason to believe that he posed a threat to his estranged wife. So while Emerson lost the case, the Fifth Circuit did for the first time at the appellate level affirm this principle, that the second amendment conferred an individual right and not a collective right limited to militia members or militia use of a weapon.
Jim: Yeah. Even though it wasn’t adjudicated at the appellant level, there was quite a proliferation of gun control regulations between the time of Miller and the time of Heller with many states, or some states at least, almost eliminating the right to own certain classes of weapons. And so presumably people were relying upon some read of Miller that would allow the level of gun control which had proliferated. People forget how much gun control there was, say, in 1986, the year before Florida enacted its concealed carry reform, but there were lots of … In most states you could not carry concealed without a hard to get permit. There was all kinds of other regulations that set nearly bans on handguns and various places, et cetera. How were those laws justified and how were they not overturned on appeal?
Robert: Well, they were justified simply because Miller was the prevailing law of the land and everybody misinterpreted Miller to suggest that it was limited to militia use or people who were members of the militia. Of course we now know that that’s incorrect, but at the time nothing wound its way up to the Supreme Court. And by the way, folks that are always hollering that guns need to be more regulated, as you noted, guns are probably the most heavily regulated consumer product in the United States. I mean, handguns are the only consumer product. You can’t buy them outside your state of residence. And retailers and wholesalers and manufacturers all have to be federally licensed and all of their sales have to be pre-approved by the government.
So nationwide there are thousands of laws that regulate who can own a gun and how it can be purchased and where it can be possessed and where it can be used. So this framework prevailed from 1939 all the way to the Emerson case and even prevailed after Emerson because the plaintiff in the Emerson case actually lost because the weapon involved was a sawed off shotgun, which was deemed to be not protected by the second amendment.
Jim: Okay, so that’s a little bit of how we get to where we are. So Heller was argued at the Supreme Court in 2008. Tell us a little bit about the thinking that your team did on, as you described it, the scholarship that had happened, the Emerson case, et cetera. Tell us a little bit about how you guys thought through this as a strategic opportunity to perhaps break through and make clear that the second amendment was indeed a individual right.
Robert: It’s an interesting story with an interesting backdrop. First job was to get plaintiffs. The interesting thing about public interest lawyers, and that’s what we were, that is we didn’t have paying clients, public interest lawyers have different ethical responsibilities than for-profit lawyers. Public interest lawyers are allowed to instigate litigation. For-profit lawyers, that’s frowned upon. So we could actually run ads trying to find plaintiffs that would be willing to challenge second amendment regulations and we did so. Our goal was to end up with an array of plaintiffs that would be very appealing not just to the court, but to the media because this would be a press battle as well as a legal battle. So we wanted folks that represented across the board by gender, by race, by income and by age. Of course they all had to have a fervent belief in the second amendment rights and they had to be law abiding.
So we didn’t want a guy like Emerson who was a threat to his estranged wife. We didn’t want him as our plaintiff. We wanted people that were responsible citizens. And they had to have very good facts and they had to be articulate because we knew that they would be dealing with the media as well as making their case before the court. So we ended up with the six plaintiffs. The lead plaintiff at the time was not Heller. It was a lady named Parker and she was appealing to us because she had been threatened in Washington DC by drug gangs. Heller was appealing because he was a security guard and he actually carried a gun every day to guard a federal building. But in DC, they wouldn’t let him take his gun home to guard his own family. A third plaintiff was a fellow named Palmer who actually worked at the Cato Institute and he had been accosted by homophobic thugs.
So the net result of this plaintiff search was we ended up with three men, three women aged from their mid 20s to their early 60s. Four of them were white and two of them were African-American. So that was step number one, find plaintiffs. Step number two was to find money because it’s not inexpensive to litigate a case. This case, by the way, was started 2003, ended up deciding it in 2008. So it took five and a half years to get through to the Supreme Court. I fortunately was in a position where I could provide the money and I did so. I funded the case and that gave me and my team, Alan Gura and Clark Neily, gave us control, complete control. We weren’t beholden to anybody, so we had control over plaintiff’s selection, over the legal arguments, over the legal strategy.
Later on, by the way, as an aside, when the case got to the Supreme Court, I was advised by some of the power structure in DC that I ought to ditch Alan Gura and allow the case to be argued by one of the Supreme Court heavyweights at the time like Ted Olson or Ken Starr because DC had enlisted the services of Walter Dellinger, who was a former solicitor general. And my advisors thought that Alan Gura didn’t have sufficient experience. Well, as it happened, Alan Gura, even though his experience was at the appellate level, not at the Supreme Court level, he had a complete and thorough knowledge of second amendment issues and he did a superb job before the Supreme Court.
So I rejected the advice to replace Alan Gura with the others. And one reason I rejected it was the conviction that he would do a great job. Another reason was that, frankly, I had made a bargain with Alan. I said to him, “Look, you work for subsistence wages,” which he did. “And if this case goes up, then you’re the man. You’ll get to argue at the appellate level and the Supreme Court level.” So that’s how our team was finally structured. If you like, I could talk about why we did it in DC and …
Jim: Let’s do that. Let’s talk about all six presumably were DC cases?
Robert: Yes, all six were DC cases.
Jim: Okay. And then why don’t you tell us the state of gun control at that time in DC.
Robert: Well, before 1976 the murder rate in DC had been declining. In 1976, they passed a gun ban. That’s the ban that we challenged. And soon after, the murder rate climb to the highest of all US cities greater than 500,000 population. So during most of the roughly 33 year life of the DC gun ban, there were more killings per capita in Washington DC than in any other major city. The high point came around 1993, which was 17 years after guns were banned, handguns were banned in DC. And that was triple in 1993, the pre-ban level, so so much for the efficacy of the gun ban in DC. So one reason we chose DC was because of that high violence. The second reason we chose it was because of draconian regulations. For one thing, no handguns for anybody at any time for any purpose whatsoever. You could have a rifle or a shotgun in your home, but you couldn’t carry it from room to room without a permit. And DC hadn’t issued a permit in decades and you either had to keep the rifle or shotgun.
It either had to be unloaded and disassembled and at a minimum trigger locked. So unless you planned to hit somebody over the head with the rifle or shotgun, it’s unlikely that it would’ve been an effective weapon for self-defense. So the draconian regulations in DC was the second reason. The third reason you alluded to a little bit earlier and that is that the second amendment did not apply to states. It only applied to the federal government because when the Bill of Rights 1791 was ratified, it did only apply to the federal government. And while that did change over time, there had been no case that had applied the second amendment to the states.
Well, DC was not a state. DC was a federal enclave, so federal law would apply in DC. We didn’t want to deal with this naughty problem of whether or not the states were subject to the US Constitution when it came to gun control. And then there was also the issue of DC being the place where the federal government resided, so it was unquestionably the right venue. And then the final reason was that the DC circuit alone among the appellate circuits had no established precedent on the second amendment. So for those reasons, we did go with Washington DC. That turned out to be a correct decision.
Jim: Well, I love that analysis, particularly the fact that you could totally dodge the issue of the 14th Amendment in this particular case. Now, a detailed question, I just don’t know the answer at all. This gun control ban, this gun ban, handgun ban, was that enacted by Congress or was that enacted by the DC City Council?
Robert: DC City Council, but of course Congress retained plenary authority over the DC. So Congress could step in and preempt whatever it is that the DC Council voted on.
Jim: Yeah, my father was a Washington DC police officer for his career and so I’d learned a little bit about it. In fact, one of the things he’d always do is take the three Rutt boys to court once a year and we developed some great … It was always criminal court he knew the right one to go with a colorful judge. And so we got to sort of see a little bit of that in action when we were kids. I did know a little bit about the legal structure in DC, but not a tremendous amount. So something passed by the DC City Council is deemed to be a federal law, right? So I remember there was two sets of courts. One was an actual federal court, the other was like a DC court.
Robert: Yeah. Whatever the DC Council passes is applicable only in DC, but the federal government, since constitutionally, the federal government has plenary power over DC. The federal government could, if it wished to, step in and override the DC City Council. The DC City Council of course was not empowered to establish law for jurisdictions outside of DC. By the way, Jim, I might mention it was the other interesting sidebar, if you want to discuss it, is the role of the NRA, which was really quite intriguing.
Jim: Yeah, let’s talk about that a little bit because you mentioned just in passing earlier that the NRA had not chosen to deal with these kinds of cases. Talk a little bit about the NRA in this context.
Robert: Yeah, so we chose to go forward. The NRA had not gone forward and we decided on an incremental approach. This was patterned after what Thurgood Marshall did in the civil rights era. Heller case was a straightforward constitutional challenge. As I mentioned, not about machine guns, or assault weapons, or even about concealed carry. It was about ordinary garden variety handguns in the home. Not on the street, but in the home for self-defense. So oddly enough, we informed the NRA and we were advised by the NRA, informed them that we were going to bring this lawsuit. They said don’t go forward. The charitable interpretation of that advice was that they didn’t think that we would attain victory because they felt that the Supreme Court in particular was not yet inclined toward the individual rights view of the second amendment. We disagreed with that.
The court was on balance conservative and in fact was likely to become even more conservative during a Republican administration. And indeed it did become more conservative. So despite the NRA’s advice not to go forward, we did go forward. The less charitable interpretation was that the NRA was a little bit peeved that the three upstart lawyers would be intruding on their grounds. But for whatever reason, we went forward and notwithstanding their advice. They then filed a copycat lawsuit in DC called Seegars, S-E-E-G-A-R-S. And that copyright lawsuit raised the same issues with different plaintiffs and it was filed substantially later than the Heller case. And then they moved in DC to have the two suits consolidated, a planned effort to take control of the litigation. We fought that and we did prevail before the US District Court in DC and the court refused to consolidate the two lawsuits.
So we had two parallel lawsuits going forward on different tracks raising the same issues. Now, the way it works in the courts is your case gets assigned in the federal courts. It gets assigned randomly to one of the judges that sits in that jurisdiction. And as luck would have it, even though the NRA lawsuit was filed long after ours, they were assigned to a judge who happened to move faster than our judge. And they actually got a decision at the lower court level in the Seegars case before we did in the Heller case. They lost in the lower court. Not surprisingly because, as it would happen, we would lose in the lower court as well. So they appealed their case to the DC circuit and then they lost in the DC circuit. Meanwhile, we had been told your case is not going to move forward because the NRA case has the same issues.
And so if we resolve the NRA case we, the courts, resolve the NRA case. Then we don’t have to deal with the Heller case, but the NRA case loses in the DC circuit. Now, you would think that that loss would dictate a loss for Heller as well, but it didn’t. And the reason it didn’t, it was because of the basis for the NRA loss was that the court determined that none of their plaintiffs had standing to bring the lawsuit. None of them had proven that they were actually injured by the DC law. They had not been arrested. They had not even applied for a permit and been refused. So the NRA loses in the appellate court and because the appellate court didn’t resolve the case on the merits, the Heller case was allowed to go forward.
Jim: What a classic rookie error by the NRA’s lawyers, right?
Robert: Indeed, indeed.
Jim: We know that the judges are always looking to bounce cases for standing. I’m not a lawyer, but I have dealt with a lot of law over the years. Mostly civil business law, but if you don’t have standing, which means that you have a live controversy that the court has a reason to deal with under the British common law, the judges just say, “No standing, no case. Don’t waste our time. Get out of here.” And it’s a complete bonehead move to put together a lawsuit that you don’t have obvious standing.
Robert: Yeah. Now, we had six plaintiffs and five of our plaintiffs were dismissed for the same reason. And that’s why the case is not called Parker, who was the lead plaintiff when we filed the case. The case instead was called Heller because he was the only one of the six plaintiffs that survived the standing issue. And the reason he did was that he had lived outside of DC. He had come to DC and then applied for a permit and he was denied. And that application and denial was deemed to be his injury. So even though he was not arrested for illegally possessing or using a firearm, he was injured for having his application to have a firearm denied. And that gave him standing, the only one of our six. We went forward with Heller. The NRA was shut down because none of their plaintiffs had standing, at which time the NRA then went to Congress and they asked Congress to repeal the DC gun ban.
Now, you would think that that would be something that we would favor, but we did not favor it and we did not favor it for two reasons. One of which is that Congress could reverse itself at any time. And as soon as another administration came in, the majority shifted in the legislature, then we might have just a reversal of the reversal to repeal the DC gun ban. And the second reason we didn’t favor it was that we wanted this ruling to have application across the country. And of course, if the Supreme Court were to rule, then there would be nationwide application. If Congress were simply to go in and repeal the DC gun ban, that wouldn’t have application anywhere other than DC. So I actually testified before Congress against repeal of the DC gun ban, even though we were at the same time litigating in favor of repeal of the DC gun ban.
And of course I explained all of that to the Congress and fortunately the Congress was not inclined to repeal the ban, so the litigation did go forward. And finally at that time the NRA did join with us and was very, very helpful in pursuing the Heller case. And in fact, they were responsible for arranging an amicus brief before the Supreme Court that was signed by the large majority of persons in Congress as well as by the Vice President of the United States. And all that was that the NRA’s urging. So long story short, they started off opposing lawsuit. They ended up being material help in our efforts to challenge the DC gun ban.
Jim: Well, I love that. Great laying out the territory, the terrain, the strategy. I didn’t know at all, but I’d never heard of Seegars. That’s kind of cool. Learned about that and now that worked out. Now, let’s move to your legal strategy. We have this kind of terra incognita of law. We have Miller, which is this weird case, which could be interpreted very narrowly, but it’s been interpreted more broadly probably in error, but mostly kind of an open sketch pad here. What was your legal strategy? How were you going to bring forth arguments that led to the Heller case?
Robert: Well, we made a case that the subordinate clause, the clause that contains well-regulated militia, that helps explains why we have a second amendment right. But membership at a well-regulated militia, while it’s a sufficient condition for exercising that right, it’s not a necessary condition. And other sufficient conditions would include, for example, the right to hunt or the right to self-defense. So if the second amendment were limited to the exercise of gun rights only while in militia service, then the text would’ve read something quite different. It would’ve said something like the right of the states to harm the militias shall not be infringed. But the second amendment, like, by the way, the first and the fourth and the ninth and the 10th, that refers explicitly to the right of the people. And all of those amendments, first, second, fourth, ninth, 10th, appear within the Bill of Rights. And the Bill of Rights is the part of the constitution that deals exclusively with the rights of individuals.
So we secure the right of the people was our argument by guaranteeing the right of each and every person to the second amendment. Protections were not intended for the government. They were intended for each individual against the government, a deterrent to the possible tyranny by government. And of course imagine if you had a right that was designed, and even the anti-gun folks admitted this, that the second amendment was designed in large part to deter government tyranny. So imagine if you had a right for that purpose, but the right could only be exercised in a government run militia when, where and how the government permits. That wouldn’t be a right in any sense of the word. Now, the other thing that we pointed out, and it played a big role in Scalia’s decision, is that nobody believes that gun rights … Maybe I shouldn’t say nobody. Very few people believe that gun rights are absolute.
So clearly the amendment didn’t guarantee the right of an 11-year-old to have a machine gun in front of the White House when the president’s strolling on the lawn. So some weapons and some people and some circumstances might be subject to regulation. And as you pointed out, that’s the same framework we have for other rights. The first amendment, no law abridging the freedom of speech, but we have all kinds of laws abridging freedom of speech. You can’t falsely shout fire in a crowded theater, incite the riot, you can’t lie in commercial ads, you can’t engage in defamation. So neither the right to free speech nor the right to bear arms is absolute. They could be regulated, even though both of them of course are constitutionally guaranteed. And then Scalia picked up on that and he wrote that the second amendment did secure an individual right to bear arms in the home for lawful purposes.
But he also wrote, and this was regularly cited by the media, that the Heller case didn’t cast doubt on longstanding prohibitions on the possession of firearms by felons, by the mentally ill or laws that barred carrying firearms at sensitive places like schools or even imposing qualifications like background checks on the commercial sale of arms. And he even noted that there was some historical support and I’m sure we’ll get to that shortly because some cases that just recently were before the court, historical support for prohibiting the carrying of dangerous and unusual weapons. So that was the theory that we presented to the case and indeed it was the theory that Scalia did adopt and that now became the basis until I’m sure we’ll discuss this Bruen case that came later. That was the basis for resolving second amendment cases.
Jim: Yeah, I reread Heller yesterday. I read it when it first came out and as a gun nut I was going, “Yeah.” But I read it more carefully yesterday and there is an amazing amount of detailed linguistic and grammarian arguments. There’s historical arguments, there’s the question I thought was very interesting, that the language shall not be infringed could be interpreted to mean that the right to keep and bear arms is an antecedent common law or even natural law right. Rather than establishing a right, it’s basically protecting a preexisting right. Did y’all lay out all that in your briefs and in the amicus briefs that were filed? How did all that detail become grist for Scalia’s mill?
Robert: Well, first we pointed out that the term well-regulated back in the framing era meant properly regulated. It didn’t mean heavily regulated. And proper means that government was to be prevented from disarming citizens. So the gun controllers actually read that phrase backwards. They read it as if it said to ensure a well-regulated militia, the right to keep in bear arms may be infringed. It doesn’t say that at all. It says may not be infringed. Then of course we pointed out that the Congress controlled the militia. Congress had the power to call forth the militia, to organize, to arm, to discipline the militia.
And the states only dealt with the appointment of officers and training the militia, according to rules that Congress would prescribe. So the right to keep in bear arms would not have deterred federal tyranny if it was exercisable only if you’re a member of militia that, in fact, the Congress controlled. And later they passed the Militia Act in 2016 and it said that the militia of the United States is all able bodied males, at least 17 years old, under 45 years old, who are citizens and females who are members of the National Guard.
So if we limit it to right to keep and bear arms to folks that were members of the militia under the terms of that act, it would mean that handicapped men who were not fit, they wouldn’t be able to exercise the right of self-defense, nor would anybody over the age of 44 couldn’t be able to defend themselves. And equally for women who weren’t members of the National Guard, all those persons would be denied under the terms of the militia Act. They would be denied guns for self-defense. I think the key point was this. During the framing era, the anti-Federalists wanted three things in particular. They wanted a Bill of Rights. Later, we got that as you know, of course. They wanted state control of the militia, not federal control, and they wanted to get rid of the notion of a standing army because they felt that it had the potential to be tyrannical.
That was the anti-Federalists argument against ratification. So what is the Federalist’s response? It was threefold. The Federalist said, “Look, don’t worry about the standing army because we have a militia and the militia will be adequate protection against the standing army. And don’t worry about the fact that the militia is controlled by the federal government because we will have armed individuals that are counterweight against the federal militia. And don’t worry about the fact that we have armed individuals. Of course we’re going to have a bill of rights that ensures armed individuals.” So our argument was the second amendment couldn’t possibly have been intended to eliminate rights that, in fact, the Federalists had demanded. And I think that argument carried the day with Scalia and with his four others that constituted the majority in the Heller case. Of course we addressed the Miller case, we addressed the meaning of bear, we addressed which arms would be protected by the second amendment. And of course the ultimate decision said that all weapons that are in common use would be protected under the second amendment.
Jim: Right, so let’s now move on to some of the other cases. But before we do that, why don’t you very succinctly state what the holdings were in Heller, the very specific and fairly bounded what Heller had to say?
Robert: Well, as I mentioned, the challenge statute was with respect to three provisions. The first was that you couldn’t have a handgun and that the court explicitly overturned. The second was that even if you had a handgun that was grandfathered because it was registered prior to the 1976 ban, you could not carry that handgun from room to room in the home without a license, which DC had not granted in about three decades. And that was explicitly overturned. And then the third provision was that all firearms in the home, including rifles and shotguns, had to be unloaded and either disassembled or bound by a trigger lock.
And that third provision was expressly overturned. So the detailed holdings of Heller was to overturn those three provisions, but of course in the process of doing that Scalia fleshed out the meaning of the second amendment and concluded that it protected an individual right to keep and bear arms. Not a collective right, not a right of the states, but a right of each individual. Again, limited to in-home use for self-defense. Later cases addressed some of those other issues, but Heller was very narrow. In-home use of a handgun for self-defense.
Jim: And the actual laws that were overturned were DC only, but the holding that was an individual right, that implied everywhere. Is that correct?
Robert: Yes, it was a holding and it did apply everywhere, but only with respect to federal law. It did not apply to the individual states.
Jim: Okay, let’s move on to that. Now, the next big case was McDonald versus City of Chicago. Were you guys involved in that at all? Had that moved on to somebody else to litigate?
Robert: Well, we were involved only in filing a brief, but Alan Gura, who was the member of our team that did argue the Heller case, also litigated the McDonald case and also argued the McDonald case. So there was a linkage between Heller and McDonald.
Jim: Makes sense.
Robert: Yeah.
Jim: So not in as much detail as we talked about Heller, why don’t you tell us about the background, the facts and the holdings of the McDonald case?
Robert: So until McDonald, which was 2010, two years after Heller, the second amendment applied only to federal jurisdictions like DC, Guam, Samoa, Puerto Rico, Virgin Islands. So DC wasn’t a state and, as I mentioned, that’s why we filed the case in DC. Then the 14th Amendment was ratified 1868 and said that the 14th Amendment said that Congress could step in if the states were violating constitutionally guaranteed rights. So in fact, we fought a civil war and that’s the reason the 14th Amendment was ratified. It prevents the states, which turned out to be every bit as tyrannical as the federal government. Slavery being the obvious case in point. So it prevented the states from violating due process, equal protection and privileges or immunities. And the 14th Amendment was used to apply where the technical word is incorporate the Bill of Rights to the states, but it didn’t occur in one fell swoop.
It was accomplished provision by provision. First, there were cases involving free speech and religion and protection against unreasonable searches. And remarkably until 2010, until the McDonald case, the court had not decided whether the second amendment was incorporated, applied to the states. And that’s what McDonald addressed. And now after McDonald, the second amendment, like virtually all the rest of the Bill of Rights, now applies to all of the states, not just federal enclaves such as Washington DC.
Jim: And Chicago had similar laws to DC, right, making it very difficult to own handguns?
Robert: That’s right. The Chicago ban might not have been quite as draconian as DC, but it was a close approximation.
Jim: The courts basically took the logic of Heller and then through the 14th Amendment applied that to the states or was there other twists involved?
Robert: They decided that the criterion for whether a right guaranteed by the US Constitution would be incorporated, would apply to the states, is whether the right is deemed to be fundamental. Now, that’s a term of art and it means that the right is deeply rooted in our nation’s tradition and culture or implicit in the concept of order to liberty. So in the McDonald case, and also in Heller, by the way, the Supreme Courts said, yes, second amendment rights are fundamental. And what that meant was to say that it was fundamental. It meant government bears a very heavy burden to justify any gun control regulations. The government would have to show three things. First, that public safety required the proposed regulation. It was this very important government interest.
Second, that the regulation was going to work, that it would’ve accomplished what the government intended to accomplish. And third, that there’s no better way to accomplish that end result without compromising second amendment rights. So essentially, it no longer would be up to me, for example, to show that I needed a gun. Instead, the burden of proof would shift and it would be up to the government because this is a fundamental right to demonstrate that there was a need to limit my access to a gun. That’s what McDonald reinforced and so the second amendment was incorporated to apply to the states.
Jim: Well, this is probably a good time to at least briefly talk about Breyer’s dissent in the Heller case, which would presumably also apply to McDonald. Give us the high level view of what Breyer’s dissent. Tell us what he had to say in his dissent against Scalia’s opinion.
Robert: So the framework for deciding whether or not you could regulate a constitutional right is that they have what’s called tiered levels of scrutiny. The lowest level is rational basis, which means that the regulation is okay as long as it’s reasonably related to a legitimate government interest. So most regulations will pass under a rational basis standard. There’s a middle ground called intermediate scrutiny. The regulation has to be substantially related to an important interest. We don’t know how the outcome is going to be and case by case you have to look at the facts, but the fundamental rights usually are assessed under strict scrutiny and that means it has to be narrowly tailored to a compelling government interest. My argument was that there’s no principle basis for a hierarchy of constitutional values, that all of them should be subject to scrutiny. But Justice Breyer, he said if you apply strict scrutiny to gun regulations, in practice that just turns into a balancing test and it becomes a weighing of public safety on the one hand versus second amendment rights on the other.
And that’s how he would’ve stated. The key question, and his answer in Heller, would’ve favored public safety. So he wouldn’t have presumed either that the regulation was constitutional as it would be under rational basis review or that it was unconstitutional as it would be under strict scrutiny. Instead, he would ask whether the regulation is an undue burden on gun rights to an extent that’s out of proportion to the governmental interest involved. Now, I happen to agree with Breyer that tiered scrutiny inevitably entails this balancing of interest, but I disagree that constitutionally guaranteed rights, especially one that’s expressly enumerated in the Bill of Rights, should be treated as anything less than fundamental and accorded anything less than strict scrutiny. And in that respect, by the way, I regret that Scalia didn’t explicitly in Heller adopt strict scrutiny. He left it undecided as to what level of scrutiny would prevail and the assumption was it would be something in between, strict on the one hand and rational basis on the other.
Jim: And this is something that’s always annoyed us gun nuts, which is the treatment of the second amendment is kind of a second class right. And yet, when you look and say the first and the second, the first says Congress shall make no law, which fairly narrow. The second says shall not be infringed, god damn it. Why isn’t the second held to the strictest possible scrutiny? Because the wording is more absolute than any other right, as far as I know.
Robert: I’m with you on that. I think the second should be held to strict scrutiny and it has not been held to strict scrutiny, not withstanding that the text says shall not be infringed. I don’t know what could be clearer. Again, we don’t presume that that means that the right is absolute, but what it does do, it sets up a presumption of liberty such that if that presumption is to be rebutted by the government, the government has to show it has a compelling reason to rebut that presumption of liberty, that what it’s doing is going to satisfy the government’s needs and that it couldn’t have done it in a different way, that it wouldn’t intrude upon second amendment rights. I don’t think government has met that burden virtually in most of the cases that come up before the court involving gun control regulations.
Jim: Yeah, there just seems to be something in the air, that the second is considered by the elites, the intelligentsia, that’s that relic from the stone age. What the hell? We don’t need to take that one seriously. I strongly disagree. Before we move on from McDonald, let’s also talk a little bit about what room McDonald left for gun control and gun regulation.
Robert: Well, again, the major wiggle room was this absence of a declaration that the second amendment would be strictly scrutinized by the court. So the court ended up with something like intermediate scrutiny. And intermediate scrutiny is a murky application of constitutional jurisprudence and it did leave a heck of a lot of wiggle room. And of course some of the localities, the anti-gun localities, most particularly localities like New York state, tried very hard to take advantage of that wiggle room so they would come up with regulations such as, for example, that you need to show you, the respective gun owner, would need to show that you had a very good reason to want to have a gun. Second, that you couldn’t carry the gun outside because McDonald and Heller dealt with carrying the gun only in the home.
And also, that the intermediate scrutiny that would be applied would allow the government to incorporate any sort of regulations that might pass muster, depending on who happened to be on the court at a particular time. And that would include things like high capacity magazines, extended background checks, assault weapons, limitations and the like.
Jim: So the state of play after McDonald is we’ve now extended from federal jurisdictions like DC or Guam or Puerto Rico to the states, but the holdings at this point are still limited to what you can do in your own home. Is that more or less correct?
Robert: That’s correct, yes.
Jim: Okay, let’s move on to the next major case in the series, which is New York State Rifle and Pistol Association versus Bruen. You pronounce that, Bruen or Bruen or …
Robert: Bruen.
Jim: Bruen.
Robert: I believe, yeah.
Jim: All right, so what does this case do?
Robert: So it had been 16 years since Heller. This Bruen case was 2022 and 14 years since McDonald. And as we said earlier, the court’s sort of murky guidelines in Heller and McDonald had yield lower court opinions that were all over the lot. And the Supremes, until Bruen, had declined to step in, but what happened in 2022 was that Amy Barrett joined the bench and she formed a 6-3 conservative majority, along with two other Trump appointees, Kavanaugh and Gorsuch. And that was just in time, Barrett’s appointment, to decide this New York state versus Bruen case. This was an NRA backed challenge to a old law that required a special need to have a concealed carry permit. So if a young lady regularly walked home alone at night in a high crime neighborhood, that wouldn’t constitute sufficient need unless individually she were exposed to some targeted specific risk.
So in Bruen, the plaintiffs, they were granted a permit to hunt and to engage in target shooting, but their permit to carry for self-defense was denied. Thomas and five other conservatives, 6-3 majority, held that Americans have a right to carry a handgun outside the home for self-defense, even without demonstrating a special need. So that overturned New York’s law and it threatened similar laws in places like DC and California, a number of other jurisdictions. So the interesting thing about Bruen is this. Before Bruen, the court had followed this two-step approach in second amendment cases. Step one, take a look to see whether the proposed regulation is consistent with history and text and tradition of the constitution. Step two, employ this means ends scrutiny that I described, asking judges to make these difficult judgements about costs and benefits of firearms restriction. So Bruen said, look, we’re going to use step one only and that is history and tradition.
And it concluded that New York did not meet its burden of proof under step one because in the 19th century the governments … That’s when the 14th Amendment was ratified. The government had not broadly prohibited public carry of commonly used firearms for personal defense or required a special need. So after Bruen, New York changed its laws in two respects. First, carrying a firearm was barred only in places considered sensitive. And most likely the court would end up accepting some restrictions like schools, but rejecting other restrictions like restaurants, depending, again, on the history and tradition of gun laws. And then second, New York said in order to carry you have to demonstrate good moral character based on interviews that you would have with government bureaucrats. In my view, that change is likely to come back to the court and it’s likely to be overturned. First, because it’s too vague.
There’s nobody that knows what good moral character happens to mean in a constitutional sense. Now, second because it infringes both on first amendment speech rights and on second amendment the gun rights. But meanwhile, the Supreme Court has allowed this new law in New York to go into effect, pending review by the Court of Appeals and then, if necessary, by the Supreme Court. So that’s the Bruen case. I, by the way, don’t like the Bruen case. And if you want me to comment very briefly on that, I’m happy to do so.
Jim: Yeah, I must say when the Bruen case came out, I was a little surprised. I thought it had gone beyond the spirit of Heller and McDonald a fair bit. So anyway, give me your thoughts on Bruen, why you don’t like it.
Robert: Well, for a number of reasons, but, first and foremost, justices are not historians and this standard leaves so much that’s murky when you try to match existing regulations today versus regulations that existed during the framing era. And bear in mind that some older regulations were probably unconstitutional, but they just didn’t happen to be challenged. So why should they call the shots for today’s regulations? And some regulations, they didn’t exist back then. Why? Because they probably weren’t needed back then, so their absence didn’t reflect the judgment that they would’ve been unconstitutional. It simply reflected the fact that there was no call for them.
Jim: Yeah, for instance, magazine capacity makes no sense.
Robert: That’s right. Exactly.
Jim: And the days of single shot muzzle loaders.
Robert: Exactly. And some of those regulations, they might’ve been constitutional, but they didn’t get adapted. Why? Because for policy reasons they just decided we’re not going to pass those regulations, even though they would’ve been constitutional. So what happened after Bruen, which reflects this murkiness, is we had, for example, a West Virginia judge that struck down a law barring possession of guns with obliterated serial numbers. We had a Texas judge that struck down a law barring purchases by people under felony indictments. In New Jersey, they struck down a law barring guns in libraries and bars. We had appeals court, this is the Rahimi case that is now before the Supreme Court.
That’s a law barring possession by persons under a domestic violence, a restraining order. And then we even had a Virginia judge that struck down a ban on handgun sales for people 18 to 20 years old. So presumably the reason for striking down those laws is they weren’t present during the framing era. In my view, that is not a good criterion upon which to base current regulatory process.
Jim: Not a lawyer, not a constitutional scholar like yourself, but it was impinging on state’s rights excessively. That at some level, the police power of the state should be able to have some regulation in place, like no felons, not at schools, et cetera. And they probably could have overturned this extremely tight anti-carry rule without going so far as to establish this peculiar historical standard. Do any of our other rights have that same historical standard as the criterion?
Robert: Well, not until Bruen, but now after Bruen you’re seeing that same argument appear in a number of other cases, including first amendment cases. So I think the court is inclined to move in that direction I think, unfortunately, because it’s too murky a standard to be setting a precedent for what’s to come. We saw that in this current case, the Rahimi case, which the court just decided.
Jim: Yeah. As you say, that puts the judges and the lawyers in a position which it’s not really their expertise, which is to murkily going through county level regulations in 1789 and saying, “What the hell?” To your point, maybe these things were unconstitutional then, maybe they were dead letters from the beginning. There’s all kinds of murk. To try to actually adjudicate the law on that basis, that seems pretty extreme. But do you think this is a emanation from originalism gone berserk or is this tactical consideration that outcomes that a faction of the court would like are more likely to be reached this way or is there something else going on? Where’s this come from in your opinion?
Robert: Well, this is an aspect of originalism, but it’s not necessarily dictated. That is, it’s not inevitable that if you are an originalist and you will believe in this history and tradition argument, that you can also believe in the text of the Constitution and interpret that text based on something other than what laws prevailed. Because as I pointed out, what prevailed at the time may have been for reasons quite apart from their constitutionality. And that’s why I favored this strict scrutiny approach. If you want to justify a regulation, Mr. Government, then tell us, first of all, why. And it better be a darn good reason. Second of all, show us that your regulation is going to accomplish what it’s intended to accomplish. And third of all, make sure that there’s no better way to do it, that it doesn’t infringe upon constitutional rights. I think that formulation is a good one, but the court apparently has rejected that formulation now in favor of this history and tradition test.
Jim: All right, let’s move on to the most recent case that was decided June 21st. Today is June 25th, so it was four days ago, Rahimi. I don’t know if that’s how you pronounce it or not, but that’s what I’m going to go with. Tell us about Rahimi and what the holdings there were.
Robert: The court had to decide whether a federal statute, again, this is a federal case now, could bar possession of firearms by people who are under a domestic violence restraining order. Now, I think everybody conceded that Rahimi was a bad dude. He was a violent guy, all kinds of criminal infractions. But because of the Bruen case, that case directed that any gun restrictions had to be consistent with the nation’s history and tradition of firearms regulation. So unless the court could find an analogous regulation that existed in 1791 when the second amendment was ratified, either the court would have to reverse Rahimi’s conviction, which seemed like a pretty bad thing to do given his violent record, or would’ve to modify its Bruen standard, which after all was only two years old when Rahimi came up. So Rahimi was a test case to see if the court would back off from this exclusive reliance on history and tradition.
And indeed the court did so. I’m personally gratified that the court did so. Roberts wrote the opinion. It was for an eight to one court and his conclusion was that when the restraining order contains a finding that somebody poses a credible threat to the physical safety, so in any event Roberts 8-1 said that when a restraining order contains a finding that an individual poses a real threat to the safety of an intimate partner, then that person can be banned from possessing firearms. And the Bruen framework said, Roberts, it requires only to this challenge law be, this is his term, sufficiently analogous, not identical to a founding error restriction. And so he pointed out two sufficiently analogous laws and so you can see how far the court is bending. In the framing area they had surety laws that required violent people to post a bond before having a gun.
And they also had going armed laws which barred gun possession if people had the intent to menace somebody else. So there was this backing off from the Bruen standard on balance. I think the court sensibly ruled in the Rahimi case that Rahimi’s record justified a gun ban. Some of the justices in separate opinions suggested that Bruen, there might be less proof of potential violence indeed if the record didn’t show that there was ample proof of potential violence that might produce a different outcome. But I think regrettably, at least from my perspective, the court remains too reliant on this history and tradition approach, even though Rahimi did represent somewhat of a backing off from the hardcore Bruen standard.
Jim: All right, I’m going to call before we wrap up here a little bit of speculation on your part. Where do you see possible lines going forward of second amendment jurisprudence?
Robert: I think the key battle is going to be the extent to which the court sticks to this history and tradition approach and that’s going to be reflected by jurisprudence that comes before the court over the near term. And we do have, even now, we have a case pending that will test this and that is the case about ghost guns. These are homemade guns made from parts kits. So the case is called the Garland versus VanDerStok and it’s before the court right now. And the issue is whether a parts kit to make a weapon that expels a projectile is a firearm under the 1968 Gun Control Act and whether a partial frame that can be completed in this ghost gun kit is a frame or a receiver for purposes of that Gun Control Act. So again, the court is going to get involved in this search for a historical precedent.
And I’m not sure where it’s going to end up, but what I am sure is that we’re going to be hearing from historians and all these gun cases. And the court I think is singularly unable to exercise the judgment of a professional historian. Just as the court said, by the way, in the Dobbs case, the abortion case, we are not scientists, we are not philosophers, we are not theologians. We ought to let the experts and they can influence their state legislatures. So I don’t know why it is that this history and tradition approach has taken such a prominent role before the court, but it clearly has and we’re going to see it tested in the upcoming cases.
Jim: I want to thank Bob Levy for a brilliant exposition of the history of second amendment and the court cases around it, his role in the Heller case and the cases that came after and what we might see next. I really want to thank you. This has been a classic episode of The Jim Rutt Show.
Robert: Great to be with you, Jim.
Jim: It was wonderful.