SCOTUS Gun Stun: Bearing Arms in Summer Bruen Decision

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This week on Hubwonk, host Joe Selvaggi talks with CATO Institute research fellow Trevor Burrus about the recent U.S. Supreme Court decision New York State Rifle and Pistol Association v. Bruen and its implications for an individual’s right to carry a fire arm in states such as Massachusetts.

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Guest:

Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and in the Center for the Study of Science, as well as editor-in-chief of the Cato Supreme Court Review. His research interests include constitutional law, civil and criminal law, legal and political philosophy, legal history, and the interface between science and public policy. His academic work has appeared in journals such as the Harvard Journal of Law and Public Policy, the New York University Journal of Law and Liberty, the New York University Annual Survey of American Law, the Syracuse Law Review, and many others. His popular writing has appeared in The Washington Post, The New York Times, USA Today, Forbes, The Huffington Post, The New York Daily News, and others.

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Please excuse typos.

Joe Selvaggi:

This is Hubwonk. I’m Joe Selvaggi.

Joe Selvaggi:

Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. The second amendment of the United States constitution reads quote 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 deciding whether the right to bear arms was indeed a fundamental right, was the issue at hand in the recently decided Supreme court case of New York state rifle and pistol association versus Bruen the 6-3 majority held that while a licensing process may qualify and exclude certain applicants from firearm purchase possession and carry the state cannot require eligible applicants to demonstrate a special need to carry before being granted that fundamental, right? While this decision will have little impact on states, such as Vermont, that have very few limits on gun ownership, it will substantially disrupt the permitting process in shall issue states like Massachusetts, in which officials had reserved the prerogative to issue only to those with a special need to possess and carry.

Joe Selvaggi:

How does this case comport with the historical legal precedent of gun ownership in the United States and with the backdrop of recent school mass shootings and the tragedy of more than 40,000 us annual gun deaths all be the likely effects of a more permissive system on public safety. My guest today is Trevor Burrus, research fellow at Cato. Institute’s Robert A. Levy center for constitutional studies and editor in chief of the Cato Supreme court review. Mr. Burrus has written extensively on the history of gun policy in America and will share with us how the Bruin case fits with past Supreme court gun, right decisions, what impact the decision is likely to have on so-called may issue states like Massachusetts and how a more permissive gun regime may affect the rates of gun violence in the United States. When I return, I’ll be joined by Cato Institute research fellow, Trevor Burrus.

Joe Selvaggi:

Okay, we’re back. This is Hubwonk, I’m Joe Selvaggi, and I’m now pleased to be joined by Cato Institute research fellow, Trevor Burrus. Welcome back to Hubwonk, Trevor, always a pleasure to be here. All right. So we’re getting near the end of the term of this Supreme Court term and some of the bigger decisions are coming down and we’re, we’re gonna be talking about the most recent decision just came down very recently. It’s being labeled the broad decision. What we’re gonna talk about our gun rights and laws restricting guns. This is an issue top of mind, independent of the decision largely because of both the tragic shooting eval de Texas, which we’ve all learned all the horrible details, but also in our country, we have more than 40,000 gun related deaths each year, and that number’s are rising. So it’s an issue that I think is top of mind for many of our listeners. So let’s, let’s start at the beginning. This decision just came down for our listeners. Tell us what are the facts in this particular case?

Trevor Burrus:

Yeah, so the case is called New York state rifle and pistol association versus Bruen. And it came from sort of three plaintiffs, 1, 2, 2 individuals who wanted to geta carry permit in the state of New York and the association that they also belong to the New York state rifle and pistol association. Now New York is, is like six states that has a, what was called a may issue, carry law. So that meant in order to get a carry permit, you not only had to a pass the objective kind of stuff that is common to every state that issues permits, which is every state to some extent, which is, you know, safety training, shooting lessons, learning about the law of self defense, that kind of stuff. But you also had to demonstrate a particular subjective need for carrying a gun. So this was not a danger to you, and it had to be a danger to you specifically.

Trevor Burrus:

So in essence, you had to convince a bureaucrat. It was often like a local sheriff or sometimes a judge that you had a specific threat against you. And this allowed an amazing amount of discretion on the part of officials who essentially never granted these permits to people, except for really wealthy people who, who course often have bodyguards or the occasional person who, who was threatened specifically. So if you were a, you know, five foot woman who worked at a bar late at night, and every night, you had to walk home through a really dangerous neighborhood where muggings are quite common and you wanted to apply for one of these they, they would say no, hat question was actually asked of the New York solicitor general at oral argument would such a person apply. And they say, he said, no, that’s a generalized threat, not a specific threat.

Trevor Burrus:

So that’s how kind of onerous the restriction was. And what the court was asked to hear was whether or not that aspect of the discretionary permitting scheme was on constitutional and a six, three ruling written by justice, Clarence Thomas, they ruled that it was unconstitutional and were very specific to say that this was all, they were striking down discretionary permitting systems, where you have to show a particularized threat all the states that have permitting systems for carrying that are objective, that don’t have such criterion. Those were okay. And they went outta their way to say, that’s okay, this wasn’t about what type of guns can be banned or magazine restrictions or what kind of even people can be banned from having a gun. It was just about that. So you’ll hear a lot of sort of sky is falling as always happens when these gun cases come down. But this applies only to six states who will all then have to become like the other states that have had the, the shell issue, the objective test for carrying a gun.

Joe Selvaggi:

So Massachusetts is one of those six states that you mentioned. And so that’s why this is particularly relevant to our, our listeners. So I just wanna make sure and put some you know, finer point on what the point you made rather than let’s say we see our second amendment right to I’ll read it for our listeners 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. So in this case, one did not really have a right to as I would say, bear arms, one in a sense had to demonstrate a need to bear arms and a particular need to bear arms based on a a definable threat to one’s life. Is, is that what you’re saying

Trevor Burrus:

Precisely? And it’s important to realize there’s a lot of important language in the opinion that will apply to other gun restrictions. It’s important to realize, and this is one thing justice, Thomas went out of his way to point out, and he has in the past, how Abre this the way the second amendment is treated compared to other rights that are enumerated in the bill of rights. So they, I let’s say that there was a rule in some municipality that, you know, you could throw a protest or a rally but you had to first convince someone that what you were going to say was worth being said, because we all in first amendment law, we have a general rule that, you know, you can put limits on a protest or a rally that are called time place and manner restrictions that are kind of objective in the sense of, you know, you can only go between 10:00 AM and 4:00 PM.

Trevor Burrus:

You can’t block traffic. This is how loud your speakers can be. All those have nothing to do with the content of the speech. But if you add another thing where, and the sheriff will determine whether or not, what you have to say is worth saying, it would be blatantly unconstitutional. It wouldn’t survive. The, the lowest court review it’d be struck down in a microsecond, but nevertheless, this restrictions were on the second amendment. Right. And so it’s very important that the court came in and said, we’re gonna treat the second amendment, like the other amendments in the constitution, like the first, or say the fourth where we’re gonna read it in terms of history and tradition and ask the question, is this the kind of regulation that the people who ratified the min would’ve been not okay with or okay. With, and we’re not gonna do these weird balancing tests. We’re gonna make the second amendment, not a second class. Right.

Joe Selvaggi:

So in other words, we don’t need to make the case for free speech. We don’t have to say my speech is worth speaking. We just are granted that right to speak though that it can be constrained in time and place and manner. All right. So let’s dive into the the opinion you said it was a six, three opinion. You already mentioned justice Thomas as being in the majority. What else do we know? I know this is a relatively recent decision. What else do we know about where the chips fell? Is it a classic right left or conservative, progressive divide. And if so, is there any disagreement amongst, let’s say the majority

Trevor Burrus:

It’s exactly what you’d expect. A six Republican appointed justices versus the three Democrat appointed justices, justice Breyer pinned the dissent. The whole thing is quite long. Justice Thomas’s majority opinion is over 60 pages long in all the, all the opinions are 135 pages. And it’s an interesting, so we did have we did have some concurrences from Justice Alito and justice Kavanaugh joined by the chief justice just to address some points that they wanted to be clear about in terms of what the decision was saying and what it wasn’t saying. Justice Alito wrote separately also to criticize justice Breyer’s dissent. I think very rightfully so, because Justice Breyer’s dissent, as he has wanted to do is essentially a policy brief which is not the way we should be deciding constitutional law questions. When the question is, what does the second amendment mean?

Trevor Burrus:

And so that was an interesting dissent from, or concurrence from Justice Alito. But in terms of the opinion, it’s what you’d expect from Justice Thomas, it’s a lot of originalist analysis of looking at what the history was in terms of how many laws were there, say in the founding era or perhaps in the reconstruction era when the 14th amendment was passed that regulated or prohibited people from carrying guns and going through the history of that and saying, you know, sometimes there were regulations that prohibited carrying of guns, but they, they usually said something like causing terror or mayhem. So it wasn’t, it was, it was, it was prohibited to carry a gun in a way that causes terror or mayhem. It didn’t just say it’s prohibited to carry a gun. And of course, you know, you could imagine in the American west in the 19th century, carrying guns was quite common.

Trevor Burrus:

And so the overview of the history gives for justice. Thomas says, no, this, this is not a longstanding or traditional prohibition. In addition to the fact, which is, must be first looked at that the second amendment says the right to keep and bear arms in the Heller case in 2008, when the court first decided that the second amendment conveys an individual, right, that was kind of about keep and in the now 14 years, since that decision we’ve been waiting on the meaning of bear. So this, this decision was also analyzing that term, what it meant what it meant to bear arms in the context of the second amendment. And since we already had decided in Heller that the second amendment is not necessarily tied to a militia, which was kind of the big question in that case the bear, the interpreting the word bear also, shouldn’t be tied to a militia like a militia, right?

Trevor Burrus:

It’s an individual, right. That people have presumptively. And yes, we could say that felons are not allowed to bear arms and other prohibited persons. And we could get into what the limits of this are. It’s not unlimited at all, but what it means is that for people, for guns that are in common use for self defense of which no one denied that handguns are such a gun then a law abiding person who can own that gun legally cannot be unduly prohibited from carrying that gun with sort of irrational or unconstitutional constraints on carrying.

Joe Selvaggi:

So you anticipated my couple of my future questions. I wanted get to Heller but I also wanna address the dissent. But I think it’s very important that you point out in the case that at the time of the Constitution’s ratification, you know gun ownership was fairly ubiquitous, right? That we like saying, you know, you have a right to have a dog. You know, it, it almost is unnecessary to, to, to enumerate, but nevertheless it is a fundamental, right. And it seems, again, we, I don’t wanna do all too much on Heller, but the militia clause seems also to be superfluous in so far as you can’t have a fundamental right, that ultimately if the government decides who’s in that militia, he, you don’t, that’s not your right. So if you only have a gun in the context of a militia and the government can restrict who’s in the militia it’s the opposite of a fundamental, right? It’s a, a granted right. Based on your participation in a government sanction organization, right?

Trevor Burrus:

Yeah, exactly. And it’s important to remember too, like who the militia was at the time which was pretty much every able bodied male between 18 and 64 or even 16 and 64. And also that they had just won a war against the British, that very much depended upon citizen soldiers and never forget what the first action, the first battle of that war was at Lexington and Concord, which was the British deciding to go get the guns. And that’s what caused the war to break out. So there was no, there’s really no questioning that the, what was on the minds of the framers and the ratifiers of the second amendment. And one of the reasons we didn’t see a second amendment case for a very long time. There’s a lot of ones, but one of ’em is, is that gun ownership was broad.

Trevor Burrus:

It was, it was sort of not divided between red and blue states and people in state protection of right to keep and bear arms was pretty robust. And so there was really no need to start going after suing about gun rights until around the 20th century. I mean, there were different sort of state based examples, but federally suing about gun rights. Like wasn’t a, wasn’t really allowed, but there was no real need to do that until gun restrictions started coming in, especially federal ones. And we didn’t have a federal gun law until 1934. So all of this is fairly new and, and would be kind of strange to the framers.

Joe Selvaggi:

So if, but let’s say our let’s say Democrat appointed judges tend to take a more creative view of the constitution and perhaps weight less, the original intent and more towards sort of the practical consequences. So let’s talk about the dissenting opinion. I don’t know if you’ve had time to read that, but what is the essence of why, what would we seem to be in violent agreement of why this decision to bear arms is comports with the meaning of the constitution? What was the opinion of the dissenters?

Trevor Burrus:

Yes. Justice Breyer’s a very, very nice man. And he’s, he’s written some very, very good opinions. This is no last term on the court to be replaced by judge Ketanji Brown Jackson. But he, I mean, and sometimes he doesn’t act like a judge. And I would say his dissenting opinion is not really acting like a judge because it’s a policy brief and it’s very important for some judges. So they say, you know, the, the, there are things, you know, there’s decisions that are made by legislators about whether or not this should be the policy, or this should be a policy. And that’s and judges make different types of decisions is what is the law? What is the constitution to say? The second amendment by itself by being in the constitution is saying that it’s putting gun rights above the costs of gun ownership, which of course, they, they knew at the time that guns could be used for mayhem and violence, but they decided to say, this is how we’re balancing this guns, gun rights, go above the cost of having guns.

Trevor Burrus:

They did the same thing with the first amendment. They said that that political speech, which can be harmful and other types of speech that can be harmful. We’re putting that above the regulation or that speech, or when they give rights to accused criminals in the bill of rights. We’re saying we’re putting these rights where they could even get out of jail, or they could go away. Scott free if we give them rights. So there’s cost to these rights or the right to be free from unreasonable searches and seizures. This, you know, hampers law enforcement, it might be easier to catch criminals if they couldn’t enforce these, right? So these rights have costs and what the judge should be doing, or what a justice should be doing is trying to interpret the constitution and say, what does this mean? Justice Breyer is just saying, here’s how many people died of guns here?

Trevor Burrus:

My here’s how many people died with suicides? Here’s how many people mass shootings there were. And I am not diminishing that at all. Like, it’s very seriously. We could talk about what policies I think could affect positively the rates of gun deaths in the country, but in terms of his job to make a judicial decision based on this, and also to bring in, I mean, there’s a lot of misstatement of facts in his opinion, but there’s also things that are completely irrelevant. He asks for a trial, he says, this should have been decided with a good record, where we had a good data about how this law works and how many acts of violence it prevents. Well, if that trial would’ve occurred, his entire opinion, would’ve been essentially nullified because bringing up suicides, which are two thirds of gun deaths and her serious problem, but, but what does this law that allows someone to that had only allowed someone to carry a weapon outside their home?

Trevor Burrus:

If some officials said that they had a particularized threat against them, what does it have anything to do with suicide whatsoever? And it’s just sort of head scratching. Gun accidents is another thing he brings up. And another thing that this law would be completely irrelevant toward. And so his opinion, yeah, it reads like the something who was, if he were a legislator, it’s the reasons why he would vote against a, a may issue, a, a shell issue law for caring like that. That’s what that he, if he was a legislator and he could, you know, retire from the court and join the New York state legislator, maybe not, he’s probably not a citizen of New York, but he joins a legislator. And then he can decide whether he likes the law or not like the law. He clearly doesn’t like this law and he thinks it causes harm, but it’s not his job as a justice to, to make decisions on such basis. And, you know, I’ve, I’ve been told by some of the justices appointed by Republicans, you know, that they say, you know, I don’t, it’s not my job to review policy in, in many of these cases, I don’t want a policy brief. I don’t want you to tell me, you know, all these things, it’s my job to interpret the constitution. The policy of keeping bearing arms was chosen by the framers. And now we have to figure out what it means.

Joe Selvaggi:

Indeed. I, you know, I’m, I’m not an attorney. I know you that you are. But I do try to think deeply about this to me, the notion of a judge sort of interpreting the law or reading it as it is it, for my money, it has to be that way otherwise, what does it mean to be a good judge? If not that you understand and apply the law, as it’s written, as you say, you’re either a legislator or sort a super legislator or you’re, you know, a, a star chamber of wise men that sort of are hired, I suppose, or chosen because you have opinion the right opinions rather than the wisdom to apply the law as it’s written.

Trevor Burrus:

Yeah, every, every judge should be asked, every judge gets nominated for a state, or especially if federal court should be asked the question, tell me a law that you think is constitutional, that you think is a bad idea. And tell me a law that you think is unconstitutional that you think is a good idea, because if you can’t make a distinction between your policy preferences and your interpretation of the constitution, then you don’t really believe in constitutions. You believe in your policy preferences as the law of the land. And unfortunately, again, I like justice Bres and me he’s written some many good opinions, but too many times justice Breer is behaving as a legislator who cannot separate the fact that he doesn’t like peep guns in private hands, comparatively speaking to the interpretation of the second amendment, like, and there are people out there, unfortunately, people are generally bad at separating their policy preferences from their constitutional interpretation, but someone like AKI, Lamar, who’s one of the great constitutional law scholars in the country at Yale. He explicitly says, I don’t like guns. I don’t think they should be as what broadly owned and used as they are in America. But the second amendment definitely protects that. So he’s able to separate his policy preferences and his constitutional interpretation. And I just wish there were more of that.

Joe Selvaggi:

Indeed, indeed. So we, I wanna sort of just address Heller one more time and say that, you know, in 2008, that was handed down and that was defined as you mentioned, the right to individually keep arms, not bear arms. Did you see this new ruling as necessary in other words was well obviously it was necessary if we had these owner’s laws in, in New York, but why doesn’t keep and bear mean the same thing, meaning I can keep it wherever I like. Why, why does bay mean I mean, was the essence of Heller to defend sort of home and, and hearth as opposed to oneself where everyone goes is, is that the spirit of the Heller decision?

Trevor Burrus:

Well, Heller was very strategic and, and my colleague Clark Neely was one of the attorneys who came up and litigated that case along with the know, my, my mentor, Dave Copel was an attorney who sat at the Supreme court table during oral argument. And it was strategic to try and get the court to do something that had never done before. And when you try to do that, you’re going for a very narrow question for the court to answer a very narrow question, cuz that’s the way the court likes to, to do things. So you want, you first say, okay, interpret the meaning of the word keep. And they went after a DC’s extremely onerous regulation of all guns, especially handguns since 1976, that essentially made it impossible to have a gun. And if you could get a permit to get a gun, and this is just to have one in your house, it had to be essentially, you know taken apart and put in a different room.

Trevor Burrus:

So it made it functionally unusual. And so the, the court ruled there in a five to four decision that, that, that law, that completely onerous regulation essentially prohibiting the keeping of a gun in your house was unconstitutional. And since that time there hasn’t been another major gun decision until this, this one came down recently. So, and that, and there’s been a lot of attempts to try and get some regulate, some cases to the court, many of which I’ve been involved in about different things, because some, some lower courts I have been taking Heller and saying the only thing it applies to is a law that is similarly as restrictive as DC’s was and saying that’s Heller is limited to its facts. Pretty much any other gun regulation is fine, you know, and we, we, we went offer a bunch of ’em like for example, there was, we almost got a case taking a very narrow question of California’s 10 day waiting period to buy a gun as applied to people who already own guns.

Trevor Burrus:

We were trying to get them like, tell me a reason why that would make any sense whatsoever. You own 50 guns in every, when you buy the 51st, you have to wait 10 days. And, and that, and the court didn’t take that there was a dissent from justice Thomas and the court not taking that case, but that’s the kind of cases that were trying to be brought to get a little bit more meat on the bones of the Heller decision, which has sort of a famous paragraph in it that explains that it’s not undercutting or overturning a bunch of existing gun regulations. And so today, not only did the court rightfully strike down this carry provision, but it did, it went kind of above and beyond to clarify more than it needed to kind of our brief in the case, CAS brief in the case, asked them to do this. And they followed, they followed us and others other briefs saying, you know, definitely strike this down, but also clarify Heller and the second amendment and how low court are supposed to interpret the second amendment and give them some guidance on that when other gun restrictions come up. And so that now it’s this history tradition test, which we’ve been pushing for rather than some balancing test that is very judge empowering and has let judges uphold many, many gun restrictions.

Joe Selvaggi:

So that’s a perfect segue to my next question. This is a a federal case. We have 50 states and some broad range of restrictions from New York to our, our neighbor we’re I’m in Massachusetts, our neighbor to the north. I think Vermont has almost no constraints, no laws limiting gun use usage or ownership. So wide range, we are closer to New York than, than Massachusetts than than Vermont. As far as our laws, how much does this I guess we’ll talk about the 14th amendment, how much do does a the federal ruling have an impact on the prerogatives of state state’s rights?

Trevor Burrus:

It’s gonna be interesting to see now. I mean, first off all the six may issue states, you know, they’re all in the same boat as New York, and none of those restrictions are constitutional about, but what we’ve seen in cities’ district of Columbia most recently, where they’ve actually had their may issue provision joined since 2017, we’ve seen them try and do as much as they can to keep gun ownership to a minimum and especially carry permitting. And so expect more of this from states like New Jersey, Massachusetts, New York Illinois Hawaii. So expect California. So expect more of this in the sense that, that the legislators of those states will go back to the drawing board and say, all right, we’re gonna have object. We’re gonna have an objective criteria test because the Supreme court says we have to have a shell issue thing, but we’re gonna require 27 hours of shooting classes, three days of classes on the law of self defense five days on, I don’t know, triage medicine for gunshot victim, just some very, very long list of things and say, you know, there’s no longer a subjective component to this.

Trevor Burrus:

There’s no may issue part of this. If you do, you know, all of these things, and it probably costs a few thousand dollars, you can totally carry a gun. And then we’ll be like back to the courts and say, no that, you know, try and get courts to be like, this is unreasonable. This is not how things worked. And so there’ll be of course, much more litigation in, in the future about these things and other regulations not related to carrying what kind of guns can be banned in different states and what kind of, you know, magazine restrictions, things like this. But we now have a clearer test for the lower courts to imply when, when applying it to any gun regulation whatsoever. And so what we’ll we’ll have to see but I think it will be better in terms of gun rights in the future than it is, but do expect these states to do everything they can to, to try and undercut the ruling in a practical sense.

Joe Selvaggi:

Yes, I, I, I’ve heard let’s say pros restriction advocates compare owning a gun to, let’s say, driving a car, you know, licensing at what point does the licensing requirement, if we wanna call the sort of a regime of, of, of guiding who can you know, what, what it takes to own a gun in, in Massachusetts, can you make it so expensive? So honors, so time sent, you know, 30 months you know, and $30,000 and, and you know a thousand dollars renewal license, you know, something that has the effect of, of limiting guns, where does it enter into the realm of unconstitutional constraint?

Trevor Burrus:

I think now sooner than before, you know, like it in terms of what you could do it’s, it’s sooner now that, but again, you’re gonna hear a lot of chicken, little sky is falling. I’ve already seen it on Twitter. This is a radical opinion. It’s not a radical opinion at all. It means it, it interpreted the word bear in the second amendment to mean the word bear. And so, but going forward, like, it’s, we will have, there’s still many, many regulations the states can put on guns. And even from my point of view, things that I think are constitutional that even under my interpretation of second amendment, I may not think they’re a good idea. But I think they’re probably constitutional take magazine restrictions. I think you could probably go to like 10 round magazine restrictions, even though maybe 15 maybe let’s say 20 let’s I’ll go to 2020 is let’s say they could ban all magazines above 20 rounds.

Trevor Burrus:

Well, the question in the second amendment, the, the philosophical question is what it does is it protects a preexisting, right? To self-defense a natural right to self-defense, that’s what it does. And when you interpret it, you go, okay. So what does that entail? What it entails effective means to self defense. That’s what, that’s, what the, and in the same way that the first event protects a preexisting, right? To speak your mind that you have as a, as a human being what does it entail then? Well, it entails effective means of communication. So that means that you can start a radio station and you can buy pins and paper, and you can print books and you can do all these things that if they start banning printing paper, or they put a tax on paper that is a thousand dollars a page it’s an onerous regulation of, of speech.

Trevor Burrus:

And so similar when we think about a magazine restriction, does a, does a 20 round magazine restriction really impair the right to self defense, not, not a huge amount, I’ll admit. So that’s probably constitutional under my interpretation. I don’t think it’s a very good idea. I, I think it would be extremely difficult and bad. It wouldn’t do much for gun violence, and there’s a lot of 30 round magazines out there. And you don’t wanna turn all those people into felons overnight, but is it constitutional? Hmm, I’ll go with, yes. Other things like background checks different people who are prohibited from a owning a firearm, different places where you can’t bring a firearm. Those are, those are many of those could be constitutional too. So this is not in any way saying that there’s no room for regulation. It just means that we have to look at the second amendment, like seriously as serious constitutional scholars and intellectuals, and read the words and say, what does it protect?

Trevor Burrus:

And what did they choose in night, 1791 to protect. And I think that they chose essentially that people were allowed to have the kind of guns that are in common used for self defense that are used by both the government and the people. So like I would argue that an, an assault weapon quote, unquote, assault weapon is in common used for self defense. But an assault weapon with a hundred round magazine, probably not a 50 callable sniper rifle. You know, that could be an interesting question if that ever came up to the court rocket propelled grenade, launcher I mean, pretty good for self defense, but it’s kind of other bunch of other problems to it, a tank. Well, that one’s easy. People always say, oh, Trevor, you know, why can’t you just own a tank? Well, if we’re interpreting the second amendment, you can’t bear a tank, so that’s not really applied. So, so that’s the kind of questions we have going forward. And it’ll be much clearer, thankfully, cuz I’ve been beating my head against low court opinions that just made no sense for too long. So we’ll see where they go next.

Joe Selvaggi:

What about, what does this imply for here, Massachusetts? It’s actually the chief of police who grants these sort of licenses and says, okay, you, you, you can have one or you can have a gun and you can’t, which creates this interesting patchwork, which I would imagine is sort of, it’s an uneven application of the law regarding a fundamental, right. But also it makes it easy to run a foul. If I’m bearing my weapon and driving from one town to another, I may run a foul of, of some sort of, you know, town level limit. Will this have any bearing on a state like Massachusetts?

Trevor Burrus:

It should those kind of restrictions, you know, now you’re applying things where other provisions of constitutional law, like how much leeway does the state or municipality have in sort of creating felonies of which people are not aware. And like can’t be aware and suddenly become felons. I think that that’s an under, under theorized, but increasingly important part of constitutional law. And then of course, when you have that in a second amendment context then it’s a different question because we’ll think about this way, like the state could, let’s just say this microphone that I’m speaking into the state to tomorrow made it a felony to own one and you’d be, and, and this would seem to have some problems to it with all these people who just became felons. So yeah, there could be many different constraints, you know, ultimately as you’d hope that Massachusetts would try and rectify this stuff between the municipalities. So they aren’t creating felons out of nowhere, but in, in my experience, gun controllers are not terribly sympathetic to people who suddenly become felons and who are completely law abiding gun owners. So but so this is a good chance for people in Massachusetts to speak to their legislator and say, Hey, don’t make me a felon for no good reason.

Joe Selvaggi:

Right? So let’s, let’s move away from this, the constitutional issue. And I know that’s where your expertise lies, but you also have some expertise in sort of imagining a world where there’s say fewer gun deaths. We all wish for that. Let’s just think about the fact that there’s, I think more than 40,000 gun related deaths in the United States that number’s going up also there’s 400 million guns in the United States. So what would you say to those people who see this correlation if they infer causation by this correlation, meaning lots of guns means lots of gun deaths. What would you say to those folks?

Trevor Burrus:

Well, I totally understand. I mean, first of all, I think that gun rights supporters are often sort of flippant about gun deaths in a way that is not good from both humanity standpoint or a messaging standpoint. I understand the desire to do something. I just wish that we spent more time looking at where the actual majority of gun deaths are, who is dying, what guns are being used. Instead we play political theater all the time because it’s basically gun policy is a huge partisan signaling device as you’re well aware. But you know, first thing is to understand the gun deaths and where they are coming from. So two thirds are suicides. As I mentioned before, this fact is rarely brought up, but one things that you need to pay attention, if you’re a, you know, astute political observer is anytime the New York times or V or anyone talks about gun deaths versus the amount of guns pay attention to whether or not they’re using the word gun deaths versus gun homicides like interpersonal gun victimization, because there is no correlation internationally or in the states between the number of guns and the number of interpersonal gun shootings.

Trevor Burrus:

It’s a complete random scatter shop plot. If you try to put plot those things, nor is there internationally, you could go to a place like Ireland, which seems to have we don’t, we never, it’s hard to figure out how many guns there are, but Ireland seems to have about half as many guns as Germany. And it has about double the homicide rate. And it’s just a scatter shot plot all over the place. But if you bring in suicides and now you call ’em gun deaths, you will see a correlation between the number of guns and the number of gun deaths because of suicides. And that makes sense to some extent, because if you don’t have a gun, you can’t commit a suicide by gun. And so one, one thing we should be doing is looking at suicides very strongly, especially for men between the ages of 25 and 64, which is the huge amount of those gun suicides and understanding that literally no policy that’s gets discussed all the time would have any effect on it.

Trevor Burrus:

Magazine restrictions, banning AR fifteens and assault weapons. People are not shooting themselves with these you know, maybe waiting periods that we could talk about that there’s some data on that, but background checks probably not. So this is, this is where the confrontation should be. And also pistols are killing the majority of people in homicides especially inner city, black youth like connected to the drug war. And so my frustration is always having a conversation that is bigger than guns. Sometimes I joke and say, you know, like they, the gun controllers like to say, oh, gun rights supporters are obsessed with guns. And I say, well, it seems to me that you are obsessed with guns because the number one thing that you wanna talk about when you have a mass shooting when you have new numbers on homicides is the gun and not, you know, mental health, not policing, not the drug war, not the question of why people are killing or doing mass shootings but just whatever gun it was.

Trevor Burrus:

And you’d think that like, you know, if you talked to Diane Feinstein and you’d said, here’s a magic button and you can eliminate, you know, one type of gun just entire like a puff and a puff evaporations disappears that she’d press it to eliminate assault weapons, which would be irresponsible to say the least in many, many different ways from her own, from her own point of view. I remember when Elizabeth Warren was running for president still, she had put out a, I think 32 point comprehensive plan to reduce gun deaths by 80%. And only one of those had anything to do with suicide. I mean, and that’s just cuz you could you, if she eliminated every homicide, she’d only eliminate 30% of gun deaths, like 33% of gun deaths. So she couldn’t even get close to 80% without addressing suicide. And so that’s the, that’s the thing that frustrates me a, they talk about they conflate homicides and suicides and talk about the same policies to address both, which if, obviously that’s not true, very different policies to address homicides and suicides.

Trevor Burrus:

And B you just start talking about which gun like which guns are actually killing the most people cuz sometimes the totality of the wisdom of many gun controller’s policies is if they found out that last year, you know, 50% of gun deaths were with black guns and then they ban black guns and they think that next year there’ll be 50%, fewer, fewer deaths. And of course that’s not going to happen because brown guns are readily available. And for most times people use guns for most of the things it will suffice just as well as a black gun. So really it’s just about having a serious conversation and I, again, around where most of the gun deaths are occurring and not just focusing on the gun.

Joe Selvaggi:

So I’m already seeing, you know, over my, my newsfeed graphs that show a relationship between the number of deaths gun deaths, as you say, and the most restrictive states, the states that, you know, the six or seven that we’ve mentioned in this podcast is having the most restrictive gun related deaths. If, if I, I just wanna put a finer point on your argument, if you were to factor out there, there clearly seems to be correlation between gun deaths and gun regulation, but taking out the suicide, the two thirds of the gun deaths that are suicide and just talking about violent deaths, homicides, it would be a scatter shot. All 50 states would fall about equal regardless of their gun laws. So that this is essentially lining with statistics,

Trevor Burrus:

Right? Yeah. And it’s highly concentrated. You know, I said the gun, the drug war creates situations that engender violence when you have those SP of shootings in Chicago or Baltimore, Philadelphia, you know, which are exceptionally violent cities and have strict gun control laws. If you, if you have these spade of shootings, when they say, you know, 12 people died over the weekend, it’s often this back and forth where it’s like, oh, he killed my guy cuz they were fighting over a drug corner. So we wouldn’t kill one of their guys and they wouldn’t kill one of our guys. And so that’s why you have this common waves. So again, the drug war would do more. Any of the drug war would do more to mitigate interpersonal gun violence than any gun law you could feasibly imagine passing. And as you pointed out 400 million guns in the country, I, I often ask, you know, that when I give lectures and stuff, I ask this question of one who is disgusted by guns.

Trevor Burrus:

And depending on the group, like often student groups, a lot of people raise their hands and say, I am disgusted by guns. Okay. I get that. You don’t want one. You don’t like being around them. You’ve never really been around them. That’s fine. You probably shouldn’t make policy off of disgust. But but that’s fine. And then the second question is who here thinks that like a more civilized society will have fewer guns in private hands, in like a star Trek kind of way where everyone’s saying, oh, remember how violent we were 200 years ago. And then we evolved. And a lot of people say yes to that. And I get that too. But here’s the thing not gonna happen, just not gonna happen. Like you could take, you could eliminate 50% of guns in America. You still have 200 million guns. It’s just unrealistic. And so again, the, the conversations are much more about signaling and posturing than they are about actually doing something that could, could make a difference.

Joe Selvaggi:

If we’re going down this road towards talking about, you know, common arguments for restrictions, one of the common arguments for a gun advocacy is that the best thing to stop a bad guy with a gun is a good guy with a gun. And, and a lot of people have challenged that statement in that, you know, good guys with the guns will, I don’t even need to talk about Aldi. There was a theoretically, a professional good guy with a gun who stood by and did nothing. So it’s not, it may be necessary, but certainly not sufficient in many cases. But what do we have for statistics? Do, do good guys with guns, stop crime. Do you have that data or do we have even, oh yeah.

Trevor Burrus:

Oh yeah. They, they really do. When I first got into this, I, I’m not a big gun person myself. I didn’t even own a gun until about five years ago, but I’ve been doing this policy area for, for over a decade. And when I first got into it, I was doing research for Dave Copel and I was sort of astounded that the, the reasonable guess for how many times people defend themselves a gun a year guns a year, a conservative guess is a million. A, a one that is aside in the opinion is 2.5 million. There’s a lot of studies that they all kind of come up between one and 2 million. So let’s just say one and a half million. And when I first learned that I was stunned, cuz you’d think you’d hear about it more. Well, not necessarily cuz people who do that often, maybe not allowed to have the gun themselves, which is a different issue, but they still might be defend themselves.

Trevor Burrus:

And most of the time when someone defends themselves with a gun, they don’t fire it. Which is one of the big virtues of this. They, they just show the gun and then that dissuades crime. And we know that criminals think about where guns will be and whether or not someone will have guns when they commit a crime. And we could just, you know, we, we have it from surveys. We have it from data. Imagine if we took a given 10,000 person town and I, I brought 5,000 guns and I gave it to a random assortment of houses and said, all right, half the houses now in this town have guns. Okay. Criminals will this affect their behavior? And yes, it absolutely will affect their behavior. So there you have positive externalities of gun ownership. There’s also also of course, negative externalities. So yeah, that’s we do know and it’s, it’s a shockingly high number that cannot be downplayed.

Trevor Burrus:

That’s one thing I think is very important here from the gun control point of view, when you bring up how many times people defend themselves with guns a year, they don’t like this fact. And I know why I understand. They think it’s encouraging and endorsing a wild west mentality. They think it’s uncivilized to have that many people defending themselves with guns a year. They think the only reason they’re defending themselves with guns is because the criminals have guns to like the guns of the whole problem. But of course, most say robberies in this country are not committed with a gun. They’re mostly committed with knives and strong arm tactics. So they don’t like it. And I get it, but if you’re not gonna be, you know, if you’re gonna be talking about abolishing the police or defunding the police or how much you hate cops or all this kind of stuff.

Trevor Burrus:

And look, I have many, many problems with cops, but if you’re gonna be doing that and saying, you know, we’re gonna take away the cops money and resources to defend you and take away your ability to defend yourself. You’d you better choose one, at least on those things and, and great. I agree. It’d be nice to have, you know, fewer cops kicking down doors, you know, executing search warrants on drug offenders and more people just armed and protecting themselves in a responsible law abiding way. That’s, that’s fine with me. Other people may have a different view, but again, let’s approach the real world and the constitution as it is and not some sort of Star Trek fantasy.

Joe Selvaggi:

So we’re running out of time. You you’ve been very generous with your time. I just wanna then you, you alluded to this fact early in the top of the show that you have some ideas for reducing a gun desk, gun violence. I hope our listeners are unanimous in their desire to want to reduce gun violence and gun death. So let’s say you’re king for day. And we wanna honor the constitution as well. So we wanna, it wants to pass muster with the constitution. What do you think would be effective in reducing gun deaths and you know, all the things we all talk about, these red flag laws and, you know, mental health, give us a laundry list of where you’d like to see our efforts constructively applied to reducing gun death.

Trevor Burrus:

Well, I mentioned one in the drug war and I probably sound like a libertarian broken record and I work on drug war issues extensively, but it’s, it would be the number one thing. And then the next one is suicide and there we’re gonna have to be very careful, but very, very caring about this. Most people who ever commit suicide and survive a suicide attempt, regret it. Now most people who commit suicide with a gun don’t survive it. Those decisions are often rash and instantaneous, but also most people who commit suicide reach out to someone in the weeks or months before they do this. And that’s the point where as community, as friends as loved ones not so much as, as law enforcement, I would say. But people, when you say, Hey, you know, I know you’re super depressed and you own a bunch of guns.

Trevor Burrus:

Can I just keep those for a bit with the red flag laws, those have some possibilities of flagging or identifying shooters but at the same time they could dissuade people from seeking mental health which is really bad. We have some data that that’s what happened with veterans which is very bad because again, gun suicide is, is most of the gun deaths. So focus on those two things. There are other things that may make a difference safe storage laws seem to in one study, make a difference. If you have people stealing guns or someone like the killer in Sandy hook who, you know, took his mom’s guns, but if they were locked up and he didn’t know the combination that could have done something and it’s possible that waiting periods could do something a little bit for suicide, but we still need be better data on that. And those need to be well constructed and sensibly constructed. So yeah, there are things that can be done if we are thinking about it correctly.

Joe Selvaggi:

Indeed. So again, we’re coming to the end of our show. I, I wanna, again, I know you’re a, I dunno if you’re an amateur or professional philosopher, but I wanna get to this sort of, this, this gun issue setting aside the, the, the statistics of how many people die at the hand of hands of guns. I think it reveals more about our society than merely our, a view of guns. And what I’m referring to is that two fundamental views of what a government is here for and a divide right down the middle. It seems that we either see the government’s role as keeping us safe, presumably from ourselves and others, or keeping us free, which is free from coercive power including that of the government. Do you see this sort of being as much a symbolic question, gun control as it is a, a practical or legal question

Trevor Burrus:

It’s definitely in the more symbolic thing, it, it kind of depends upon which side you’re talking about because some groups flip on one thing and, and they’re not consistent. I mean, as a libertarian, I try and be consistent, but so you know, the gun rights supporters maybe tend to be more anti-immigration because they think that immigrants are making us less safe. And there’s a very big commonality between how pro immigrant anti-immigrant and anti-gun arguments are very similar. And both of them feel like both of these sides feel like that something is making the country less safe and in some sense, like polluting it. I do think that the, the gun control people think that guns are like a pollutant, which is why they don’t want them on say college campuses, even if they’re innocuous, because it’s something it’s like stinking up the joint.

Trevor Burrus:

And of course, people who are anti-immigrant often have similar types of attitudes also anti-immigrant and anti-gun people tend to believe wrongly that there are like no gun laws in the country, and you can just buy a machine gun at Walmart, which is laughably false or B there’s like no immigration laws and, and everyone can just come in and we have open borders. So, so the question of what is making you feel less safe or less free is I think often contingent upon partisan BS and a bunch of stuff like that. But I do think it does when people don’t feel like they’re in control and it’s super wild out there. And, and when it comes to guns, you know, we have this very big problem that, you know, at least half of Americans, if you ask them, was America more dangerous 20 years ago, they’ll say, no, and this is really wrong.

Trevor Burrus:

Most people don’t know that gun violence has precipitously declined since 1992. It has uptick the last two years, but it’s still at about 1968 levels. And so if people don’t know that because these often these high profile shootings, they just think it’s a complete mad house out there. Well, I invite them to go to New York in 1982 and, you know, walk around and see how safe they feel. So, so knowing, you know, what, what you should be afraid of, and I’ll tell you, it’s not immigrants or guns would be important to this kind of distinction you’re talking about.

Joe Selvaggi:

Wonderful. Well, okay. That’s a great way to end our show. I think, you know those in our audience who, or, or in our country who feel some level of discontent, it’s easy to use the the government as our object of our scorn depending where you stand it’s either because it’s too big or because it’s too small it makes a great scapegoat for, for everyone. So thank you very much for joining me, Trevor. I think we’ve gone deep on this subject. It’s hot off the presses, and I appreciate you. You making yourself available,

Trevor Burrus:

Always a pleasure to be here.

Joe Selvaggi:

This has been another episode of Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. If you enjoy today’s episode, there are several ways to support the show. It would be easier for you and better for us. If you subscribe to hub won on your iTunes podcaster, if you’d like to make it easier for others to find Hubwonk. It’s great. If you offer a five star rating or offer a favor review, we’re always grateful. If you wanna share Hubwonk with friends, if you have ideas or comments or suggestions for me about future episode topics, you’re welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.

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