Jill Lepore (4:03)

Thanks so much for having me.

Podcast Host (4:04)

The right to bear arms, just below Article 1. Freedoms of Religion, speech, press, assembly and petition to speak out and protest without fear of punishment. And then comes the Second Amendment right near the top. Guns and militias. What made this right so fundamental to the Founders?

Jill Lepore (4:20)

Well, that is a great question and an intricate one.

Podcast Host (4:24)

Yes.

Jill Lepore (4:25)

One that has been subject to much heated debate, but I would point out only too much heated debate in the last few decades. The Second Amendment used to be known as the Lost Amendment because no one ever talked about it, cited it. It was the subject of no Supreme Court decisions or interest. It was just kind of like the Third Amendment.

Podcast Host (4:45)

Yeah.

Jill Lepore (4:45)

Most Americans can't name the Third Amendment. The Second Amendment used to be like that. Like, what is the Second Amendment at this point? I think a recent public opinion survey found this is quite chilling in reference to your opening remarks, that more Americans can identify the Second Amendment than the first.

Podcast Host (5:01)

Oh, my God, Yes.

Jill Lepore (5:02)

You know, the first is freedom of speech and expression and right to assemble. Yeah. And that is historically incredibly recent in the long arch of American history. It's also the case this is just a goofy thing that historians get fussy about. Even just thinking about the amendments by their number is a fairly recent thing. So the. When the Constitution was sent to the states for ratification in 1787, it was kind of a close call. Right. A lot of the states did not like it or they didn't like things about it. And so some of them said, well, we won't ratify it unless you can amend it first. And here's our list of amendments. And the Federalists, which was the group of Americans who supported the Constitution's immediate ratification, said, no, no, no, no, no, here's what we'll do. Just ratify it and we'll amend it later. We promise we'll amend it. And we just. We gotta get the thing in. So there was this big debate. Well, amend first, ratify later, ratify first, amend later. And the Federalists won, and for good reason. And so the first thing that Congress did when it met in 1789 was say, okay, we got to look at all the amendments that all the states wanted. And there were more than 200 of them. The right to bear arms was not among the more frequent of them. There were a bunch of them that were actually structural changes to the Constitution, you know, to do with, like, the powers of the different branches of government. But a large number of the proposed amendments involved rights. And so what Congress decided was, we're going to throw out all the structural changes and just pretend we. Nobody asked for those. What the people seem to want most are these rights, because their state constitutions have lists of rights and bills of rights. Declarations of rights were very popular. And there had been a big argument against it. Madison was hugely against a bill of rights. Madison, the father of the Constitution, said, okay, if you have a king, you need a list of rights because the king has all the power. He's a monarch. He's an absolute sovereign. In a republic, the people are sovereign. So you're holding. You're declaring your rights against the rights that, like, against the government that you put together. Makes no sense.

Podcast Host (7:13)

Yes.

Jill Lepore (7:14)

So Madison, you know, and Hamilton and all these framers said, amendments are not only unnecessary, but dangerous, because if you list them, then it's like you only have those rights. You don't have any other rights. Whereas if you don't list them because you created the government, the government does not have any power over you. You, the people reserve all the rights to themselves in a republic. So this was a fierce debate, but in the end, Madison was like, okay, okay, we have to have these. Yeah, we have to have these rights because we promised the states we would put them in there. So what are we going to. How. What are we going to do? So he came up with a list of 12 and presented them. And his colleagues were like, oh, these? We don't like some of these. We don't like others of these who went through many revisions. Madison's original draft of what becomes the Second Amendment is different from what ends up in the Second Amendment. So it's a big political debate. We think, like, we now, like our Bill of Rights is enshrined behind bulletproof Glass in the National Archives. Like as if it's this, you know, Moses's commandments in Mel Brooks's History of the World, you know, but, you know, it's a political document like anything else. It's the subject of enormous compromise. That said, you know, what becomes a Second amendment does represent a real expression of popular will. Americans at the time were terrified of a standing army. They didn't like the British army. They hated the British army. They had been. Boston had been occupied by the army. They thought the redcoats were rapists and felons and looters. And they wanted the right to have their own militias and have them be independent of the federal government. So a well regulated militia being necessary to a free state. The idea that a way to defend against the arbitrary power of a federal government which might conscript a standing army or an army would be the states would have their own militias.

Podcast Host (9:18)

Yeah, right. Had it been infringed upon in the.

Jill Lepore (9:20)

Past, this right, the right to bear arms. So there's actually an incredibly long history of what we would call gun regulations across American history from the colonial period forward. So it isn't described. So what has happened? And when people say they know this, what second Amendment is this? The prefatory clause, which is weird to call it that, and the statement have been severed. So most Americans think the second amendment says right to keep and bear arms shall not be infringed.

Podcast Host (9:52)

Yes.

Jill Lepore (9:52)

So most Americans would say the second Amendment is the right to bear, keep and bear arms. But the second amendment is a well regulated militia being necessary to a free state, comma, the right to. So what? One piece of the dispute, again, which is a fairly recent dispute, is a lot of 18th century evidence suggests that the amendment is purely about the militia and your right to bear arms in the defense of the country. And the argument made by The NRA since 1975 has been no, the preparatory clause is meaningless. And the NRA's motto is just the right to keep and bear them should not be infringed. They just sever, they erase it, they delete it from the text. That what the second Amendment is about, it's an individual right to bear arms for your own personal defense or for whatever other activities you want to engage in. And so there's the militia interpretation and there's the individual rights interpretation, and then there's a third interpretation which is actually common on the far right, which is that the second amendment grants the right to bear arms for the sake of waging an insurrection against the government itself. This is the insurrectionary interpretation.

Podcast Host (11:11)

Wow. But even early on, I don't want to go down this rabbit hole, but I'm just saying, 1715, there was the disarming acts in England. I mean, this was on people's minds. Now that had to do with militias and the ongoing wars in England, of course, but it was a present thought is my point in these guys heads that this could happen to us and we don't want it to happen here. You're already doing what I was going to spend a lot of time doing, pulling this thing apart. That's what so much is done in these constitutional conversations. It's so interesting how one amendment takes all the air out of the room. There's a lot of amendments to talk about, but we end up focusing certainly on the second Amendment at the exclusion of so much else. You wonder what factors are involved here.

Jill Lepore (11:55)

Yeah, I think we just don't really talk about what kind of amendments we might want to add to the Constitution or what parts of the Constitution we might want to take away. If anything, the Second Amendment has been a flashpoint for repeal efforts too. John Paul Stevens, when he retired from the Supreme Court, wrote a book called Six Amendments and he's like, these are the six I think we need. One of which was essentially to amend the second Amendment to make clear that it is only for collective use. That that is not to say they're state people can't own guns, but that this particular guarantee has a very narrow meaning. The California governor Gavin Newsom maybe last year called for an amendment to repeal the Second Amendment. This is just a media bid, right? Like it's a good way to get attention. I'm doing, I'm doing what liberals want to have done, but it really, it has a kind of stranglehold on our constitutional imagination.

Podcast Host (12:46)

Jill, in the discussion of language in this Constitution, one word that has to be defined is arms. Are we talking only about firearms? Are we talking about swords, you know, knives? I mean, you could interpret it in many different ways, right?

Jill Lepore (12:59)

Yeah, the minute level of this debate. One of my favorite lines of this debate is an article written by the historian Gary Wills, this was in the 90s, in which he said, you don't bear arms against a rabbit.

Podcast Host (13:11)

That's right.

Jill Lepore (13:12)

The memorable way of pointing out like, okay, this is one of the ways that the NRA mobilizes gun owners is to say the government, the people who are opposed to, who want to pass gun safety regulation want to take away all your guns. Right. They want to disarm you. They, they Want to make you impotent, you know, in, in this way. And a lot of Americans own guns. A lot of Americans hunt. A lot of Americans live in really rural areas. They have chicken coops, they're foxes. Like, there's a lot of Americans just own guns in a very practical, very practical way. I think that's hard to see outside of the United States where gun ownership is so rare, especially in, like Western Europe. A lot of Americans own guns and they, they wouldn't have a problem with most of what gun regulations are, except that the NRA is extremely effective at telling gun owners that, oh, these, you know, these liberals want to take away all your guns.

Podcast Host (14:04)

Yeah, yeah, yeah.

Jill Lepore (14:04)

You know, you wouldn't be able to live the lifestyle that you have in rural America. But that's not what gun safety regulation is generally about.

Podcast Host (14:13)

And there had been a lot of gun safety regulation, or at least a handful of them in the 19th century. Right. I mean, there we've got. Carrying of concealed weapons was passed in Kentucky, Louisiana, 1813, Indiana, 1820, Tennessee and Virginia, 1838. Alabama, of all places, Alabama, 1839. In Ohio, 1859. The idea was that, you know, there was a difference, as you're saying, between the guns that were needed for everyday life or hunting and so forth, and that which was obviously done for nefarious reasons. If you're concealing something and you're trying to get away with it, people. That was common sense back then.

Jill Lepore (14:48)

Yeah. There were a lot of places, towns in the west, when you entered this town boundary, you had to leave your guns at the sheriff's office. That was just reasonable. There were a lot of guns around and there's a lot of chaos. And there's a great book by the legal scholar Adam Winkler called Gunfight that really goes into the long tradition of gun regulations. You know, from the colonial period forward, it was just very commonplace. There's a great database that has been established. Duke University has a database of firearms law. Now you actually need legal reason to excavate these laws because you have to establish that this is an American tradition. But actually the reason people didn't know that is just so non controversial. And then this fiction evolves that like Americans have always been like, you carry a gun anywhere, openly carry it, do whatever you want with it. That has just never been the case.

Podcast Host (15:34)

Not the case at all, especially back then. You can draw a line, I suppose, direct line between that idea of leave your revolvers out there and the common sense behind that and the idea of having military grade weapons. These days, these AR15s, I mean, it's gotten absurd, quite honestly. But that is the direct line that is there for that argument.

Jill Lepore (15:52)

Yeah. One of the things that's really interesting about some of the work that's going on now is people are trying to really think about the lethality of just ordinary, even handguns the equivalent of what it is meaningful. And here, one way you can think about how does change happen? Right. Technological change outpaces legal change by orders of magnitude. It's a hare and a tortoise. Right. So, you know, gun technology, firearms technology, ammunition just explodes in the 19th century. And we think about the sophistication of the kinds of weapons that, you know, anyone can buy in the United States today. The multiple rounds, the semi automatic firing, the lethality of the bullets versus the musket, which takes like quite a bit of time to load one ball at a time. Yeah, most people have a quite difficulty using them. There's some considerable evidence that they, you know, were not always an especially good nick. They're a difficult tool to maintain.

Podcast Host (17:02)

Yep.

Jill Lepore (17:03)

You know, I have an ax I use for chopping wood. It's hard enough for me to keep my axe sharpened. Ordinary people with busy lives in the 18th century, they got a musket, they got to show up for militia training. Yeah, like my gun's not looking so good. It's just this has no real relation to, I mean, the equivalent. And people have tried to kind of offer up analogies and I'm not especially good at this, but, you know, it would be as if you were allowed to bring a six gun ship's cannon or something around with you. It just doesn't, it's. It's not a part of how people understood what arms were that could be kept and used in the 18th century.

Podcast Host (17:45)

Two terms that are important to distinguish from each other. Collective rights and individual rights. Can you just give me a quick definition?

Jill Lepore (17:52)

Yeah. So the collective right to own firearms, to keep and bear arms, in the words of the second amendment, is the idea that in order to defend the country or the common defense, one has a right to participate in a militia with a weapon. That has historically been the wildly predominant interpretation of the second Amendment. The individual right separates out service of in a militia and declares that clause in the second amendment to be merely incidental. And insistence said that the right to keep and bear arms is for an individual. This is an individual right.

Podcast Host (18:28)

The discussion and negotiation over those phrases will change and morph as this thing goes along over the decades.

Jill Lepore (18:35)

Absolutely.

Podcast Host (18:41)

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Jill Lepore (21:02)

Sadie is a Mochi member, compensated for her story.

Podcast Host (21:14)

Again, another word in this thing is the people you know. Basically, I had to refresh myself to what the word was for. When a term splits both ways, it's called polysomy. And that's when you can use one word that means two things. And in the case of the people, you've got both the collective people and then individuals. And I guess the point and theme of this conversation really is how minuscule you can get into the pulling apart of this amendment in order to use it to your own advantage. It was seemed, you know, we went through the 19th century without much controversy because it was still an idea that the federal government was coming to get us and it wasn't. But you needed a militia and now there wasn't. At some point there becomes the no need for the militia. Right. I mean, that's gone because they're raising armies and so forth.

Jill Lepore (22:00)

Well, yeah, the militia, the history of the militia is its own odd thing. But you know, Remember in the 1990s, which is really when the NRA argument gained a lot of traction and was marketed to gun owners, the so called militia movement becomes quite prominent. Yes, these far right armed extremists who we associate with, you know, Timothy McVeigh and the Oklahoma City bombing, the Waco, Texas, the political tumult and political violence of the 1990s. Very much is associated with insurrectionary interpretation that a militia is necessary to defend the freedom of the people against the tyrannical government and that that militia must be armed. That's also an era when. Well, I mean this, this has to do with a lot of other features of American life in the 90s, including the kind of cult of militarism, the celebration, you know, the draft is over. Not a lot of Americans are serving, but there's a real kind of cosplay around military gear. Paintball, military weapons.

Podcast Host (23:03)

Yeah, exactly. All that is going on. I want to back up just a little bit. I mean, here's a fact that surprises a lot of people. JFK is assassinated by a gun that's bought out of a mail order catalog. Oswald orders that, that causes a big fervor that results in a gun control act in that time period. That's when in sort of 1968 time, there's a backlash that begins. But it really doesn't kick in the way it is today. Until the early 80s after Reagan is attempted to be assassinated and a subcommittee in the Senate begins to address this. This is under Orrin Hatch, 1982. This is when things get weird because suddenly the argument really changes and becomes more deliberately about individual ownership than it was about anything else. How do you explain that time period and that shift?

Jill Lepore (23:54)

Well, one way to understand it is it is in the long shadow of the civil rights movement. So the Civil rights movement affected constitutional change by going to the Supreme Court and saying, here is what our freedoms mean. And so not just in 1954, with Brown v. Board of Education, which ended segregation by declaring it to be unconstitutional, a violation of the 14th amendment. People said at the time, okay, the 14th amendment doesn't say segregation is unconstitutional, but the Court interpreted it to mean that. And those who favored segregation said, you are. You are putting something into the Constitution that is not already there. And if you wanted to end segregation, you should have amended the Constitution. And the Court, under Supreme Court Justice Chief Justice Earl Warren, continues through the 1960s to make decisions that uphold the civil rights movement's aims and ambitions, and then decisions that uphold and constitutionalize the ambitions of the women's rights movement. The reproductive freedoms of birth control, 1973's Roe v. Wade, abortion. And conservatives say, just as with ending segregation, deciding that women's rights or the right to birth control or abortion are in the Constitution is wrong. That's not what the original Constitution says. And if you wanted those things, you needed to have a constitutional amendment.

Podcast Host (25:25)

Yeah, this is judicial review we're talking about.

Jill Lepore (25:27)

This is a judicial review, judicial activism. People on the right are really mad about it. And there emerges slowly, this movement that comes to be known as originalism, where constitutional conservatives say, the problem with the Court and all these decisions, finding all these rights for black people and women, they're not in the Constitution. They're not in the original Constitution. What we need to do is insist that the Court make its decisions by referring to the original Constitution. And by supposed coincidence, those original interpretations are gonna favor the arguments of white conservatives. And what conservatives need politically is a rights issue. We're in the midst of what is called the rights revolution, right? New articulations of rights. There are civil rights, women's rights. The gay rights movement is starting. Disability rights movement is well underway. And gun rights suddenly emerges as. Because there are now new gun control laws being passed in the wake of the assassinations not only of JFK, but of RFK and MLK. There's a 1968 Gun Control act in D.C. there's an attempt to ban handguns. There's a lot of popular momentum behind restrictions on gun ownership or licensing requirements, background checks. The things that we still think about today. And conservatives decide, oh, the right to own a gun can be the right that we have. We can bring white men into the Republican Party, especially poorer white men, rural white men who have been in the Democratic Party since the coalition under FDR in the 1930s. We'll move them into the Democratic Party by insisting that there is a constitutional right that is being denied to them. It's not as everybody else doesn't have their constitutional rights and they're fighting for the rights. No, this is a constitutional right. And so. And then that needs to be articulated as an original right and therefore somehow, like a rightier right, like a higher right than the right to an abortion right. Like. Oh, that's something the court added. But your right to own a gun, that is, you know, that was. That was written into the Constitution and very. It's the Second Amendment. It's like the second thing that was added, then that it is the second becomes really, really important.

Podcast Host (27:41)

Yeah.

Jill Lepore (27:41)

And so when Orrin Hatch convenes this subcommittee of the Senate Judiciary Committee in 1982 writes this report. The report, the tenor of the report is, oh, my gosh, all these years, we didn't know that the Second Amendment protected an individual right to own guns.

Podcast Host (27:56)

Yes, yes.

Jill Lepore (27:57)

And we have done the research and we have discovered it, and it changes everything in this country because we have to now make sure that the Court interprets this amendment the way that it was written. So it's part of a much larger both political and constitutional project to reorient the culture. Or it's like a reactionary moment, really, against civil rights and women's rights.

Podcast Host (28:24)

But it's also an opportunistic moment. I mean, the NRA at this point has changed its whole identity from what it originally was, which was hunters and sportsmen, into a lobbying organization. It's strange that this all happens in 82, right after Reagan was shot, just as the 68 law happened, after all of those other assassinations. But in this case, it's different. In this case, it's a political opportunity to use a very substantial piece of legal ammunition, so to speak, which is the Second Amendment to our own advantage, to change this law, to change this idea in American culture that this amendment meant one thing versus another, and that's basically flipping the phrases, you know, no longer militia. It's not about that. It's about the individual right to own a gun. You know, which used to be that guy down the street who had to go down into the town common with his musket is now that guy in his house has every right to own whatever he wants. And that's a very, very helpful thing if you're. I hate to be cynical, but if you're selling guns, that's a really helpful thing.

Jill Lepore (29:26)

Yeah. The role of the gun manufacturing industry in Promoting that political hairpin turn is a considerable one. But I mean, you think about that moment then BY the, like, 1999 is the Columbine shooting that, you know, first really horrible mass shooting at a high school. That seems like, okay, well, this will end that craziness. Right now we have children killing children with, you know, guns that are. Were inconceivable even just a few years previous, that are. Whose lethality is. Is. Is extraordinary and it doesn't change anything. And that was really a moment. Right. Like the NRA could have said, okay, you know what? We really, we stand by gun ownership and, you know, marksmanship and hunting and. But we're going to back off of our. Everybody should be able to have an AR15 kind of thing. Yeah, it really was a moment. Like, I think there was a considerable amount of interest in, within the nra. I mean, you know, I would say the majority of gun owners in the United States, including NRA members, support gun regulation. Of course, sensible gun regulation. It really is just a political campaign that, that, that drives politicians. It really is the kind of sister issue to abortion. Right. Like, it's how, how I think about how American politics worked in those decades. The 80s 90s, first decade of the 2000s was really all partisanship and polarization was driven by guns and abortion in the following fashion. They're both kind of presented to the voter as life or death issues on which everything else turns, and they're absolute issues. So if you think of like a grid where on the left guns are murder and abortion is freedom, and on the right guns are freedom and abortion is murder. And it's like election after election after election, people go to the polls with the idea that they're voting on this issue of murder or freedom, you know, whether they're on the left or the right.

Podcast Host (31:24)

Right.

Jill Lepore (31:25)

And then, you know, if these things are about either freedom or murder, there is no middle ground, there's no compromise, there's no subtlety. You can't say, well, then maybe there should be some restrictions on abortion. Even though I think a woman has a right to choose. You can't say, well, I think there should be some restrictions on guns, even though, you know, people have a right to own guns. Like, there's, there's no room for that. It comes from the political parties down to the voters. This is not coming up from the voters. Right. Voters have a much more complicated set of. You talk to most people are like, well, these are iffy issues. You know, these are tough issues for me. Like, I, I really Care about both of these issues, but I can see that they're there can be messy. Yeah, but that's not the way the parties use them. Right. The parties put them on their platform. This is an absolute right. And they really do mirror each other in the way they are used by the two parties.

Podcast Host (32:15)

I think eventually they've painted themselves in the corner, it seems to me. I mean, when you start going down the list of these extraordinary tragedies. Newtown, oh my God. You know, the whole thing with little first graders.

Jill Lepore (32:28)

Imagine 50 years from now, looking back at this era in American history, the extraordinary frequency of these mass shootings. Incredibly vulnerable pop. You know, five year olds.

Podcast Host (32:38)

Yeah.

Jill Lepore (32:39)

Getting seven bullets to the head. The dailiness of it too. I mean, in urban, like there's just the daily, the suicides, the gun related suicides. Across the country, especially in rural parts of the country, people look back like, well, this is a society falling apart. Right. That, that it was not that it happened, that it was tolerated, that nobody did but kiss about it for year after year after Congress just stands around that nothing happens. You know, the next thing that, you know, what would it take for this to change? Well, that it, that it has not changed. It will be understood by future historians as a measure of our societal decline.

Podcast Host (33:16)

Columbia vs. Heller, 2008. McDonald v. City of Chicago, 2010 Supported individual rights to possess firearms for traditionally legal use. Where did that fall in everything we've just discussed?

Jill Lepore (33:29)

Well, it's interesting. The arguments for the individual rights interpretation of the Second Amendment have, you know, they were first made in 1982 by Orrin Hatch. They become law in the supreme court decision of 2008, D.C. versus Heller, and then they are expanded considerably in later decisions. But they're also somewhat circumscribed. I think the Court is. Has a more mixed view partly because what has happened during and in the aftermath of these rulings is that historians keep pulling together historical evidence. Right. If the argument is, well, we have no choice but to say this, you know, this attempt to restrict this kind of gun ownership is unconstitutional. We have to say that's unconstitutional because the second Amendment means this. And that's what we know. Because of the historical evidence, historians keep going to the court and saying, well, here's some more historical evidence that you're wrong. And the overwhelming evidence of history is that the individual rights interpretation is in error. So the court is really committed to originalism and also to this new constitutional regime known as the history and tradition test. And if you're going to be committed to originalism and history and tradition and historians keep saying, well, history tells you that your decisions are wrong. Eventually. The Court, I think, has to give, and there has been a little bit of give. I think what will ultimately happen is the Court will abandon originalism before it will abandon this interpretation of the Second Amendment.

Podcast Host (35:02)

Because we're decades away from that, right?

Jill Lepore (35:04)

I think we're probably a ways away from that.

Podcast Host (35:06)

Yeah, exactly. Well, we're stuck for now, folks. That's where we are. And that's probably not news to anyone, but amazing to hear it from such an esteemed historian. Jill Lepore has a new book coming out imminently. Please acquire it in whatever form you read these days. It's called we the A History of the US Constitution. It is accessible and even handed and will reeducate you about the fundamental background to our most fundamental civic document. Thank you, Jill. I hope this isn't the last time I see you, but if it is, I'm really honored that you came on the podcast.

Jill Lepore (35:37)

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