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Heller’s Sequel Has a New Secret Weapon

Host: Rikki Schlott, Cato Media Fellow Guest: Clark Neily, Senior Vice President for Legal Studies, Cato Institute

Rikki Schlott: The Supreme Court has agreed to take on one of the biggest Second Amendment cases in years. At the center of Viramontes v. Cook County are laws banning so-called assault weapons, including the AR-15, which is one of the most commonly owned rifles in America. But this case isn’t really about the technical features of a particular firearm. It’s about a bigger constitutional question: can the government ban a commonly owned weapon that millions of Americans lawfully possess? I’m Rikki Schlott, and this is the Cato Podcast.

To help us understand this case and the constitutional principles that are at stake, I’m joined by Clark Neily, who is senior vice president for legal studies here at the Cato Institute. He’s also a member of the legal team that successfully argued another key Second Amendment case, District of Columbia v. Heller, before the Supreme Court in 2008. Hi, Clark. I’m glad you can join us.

Clark Neily: It’s good to be here.

Rikki Schlott: So let’s start with some context here. This case has been consolidated with another case called Grant v. Higgins. So what exactly does that mean?

Clark Neily: It just means that two cases presenting essentially the same issue reach the court in the same term. In this case, it’s going to be Viramontes, which is the challenge to Cook County, Illinois’ assault weapons ban. But then Grant, that you mentioned before, that’s Connecticut, which has a statewide ban on so-called assault weapons. So all that’s happened here is these two cases have been consolidated, and it’s going to be treated as if they were one case, with the exception of the oral argument, which the Supreme Court has made clear will be essential. There will be time for the lawyers representing both of those jurisdictions to present their own arguments to the court. But the parties on the other side are both represented by the same law firm, so I would expect for that argument to be presented by the same advocate.

Rikki Schlott: And why is the court taking up this issue now?

Clark Neily: Well, it is certainly one of the most important unresolved Second Amendment questions that’s been out there for some time. Lower courts have divided over the question of whether the Second Amendment does or does not protect the right to own assault weapons. And I have to say, I’m going to stop saying so-called assault weapons — most gun enthusiasts would deny there is such a category of gun, but it seems a little bit artificial to keep using the term modern sporting rifle or whatever the synonym happens to be. But let’s just take the terminology as it’s given to us, with the note that there is nothing sort of magical about a so-called assault weapon. It’s simply a rifle that possesses a number of statutorily designated features, like a pistol grip or a barrel shroud or some other feature. But they don’t really add up to a weapon that is notably more lethal or dangerous than a rifle that is not a so-called assault weapon. But like I said, we’ll continue to use that terminology.

Rikki Schlott: Okay. And so just for somebody who might not have followed this case at all, what are the facts here? What is at stake?

Clark Neily: Well, it’s pretty straightforward. As we’ve discussed, there are a number of jurisdictions, including Cook County, including Connecticut, New Jersey, a number of others, in which certain types of weapons are banned based on the features that they possess. And essentially, if the weapon has a number of features that add up to an assault weapon under the relevant statute, then in some cases you’re not allowed to purchase or sell it; in other cases, you can’t even possess it. But basically, there’s some form of a ban on that particular type of firearm. And that’s what the court is going to answer: are those laws unconstitutional because this class of weapons is within the concept or within the meaning of the word “arms” in the Second Amendment, and it’s not permissible for the government to ban them outright? That’s the question that the Supreme Court has to answer.

Rikki Schlott: And so what do those laws actually look like, and where are they in place?

Clark Neily: I think there’s probably about a dozen jurisdictions. I don’t have a comprehensive list, but as I said, Connecticut, Cook County, New Jersey, I believe Hawaii, maybe California. There’s a number of jurisdictions where there are significant limits. Oh, Virginia most recently, where I happen to live — that one went into effect. That was a sales ban that went into effect this summer. So, as I said, it’s a bit of a patchwork, but these laws have been on the books in some cases for a while. I think New Jersey is the longest-running one; I believe that one’s been on the books since 1990. So these laws have been around for a while — not a long time by constitutional standards, but neither were they enacted just in the wake of the Heller case, which came down in 2008. So they’ve been around for a while. And I would say they’re a real touchstone for many people. There’s a lot of culture-war valence or baggage with this case, because for many people, assault weapons are sort of the distilled essence of the scary firearm, and they are sometimes used in mass shootings. That’s certainly true. I want to correct a misimpression that I think a lot of people have: the weapon that is most often used in mass shootings is not an assault weapon — it is a semi-automatic pistol, which we already know is constitutionally protected because that goes all the way back to Heller. But I get that there is something about the way these firearms look, something about their cultural role in our society, that makes them a real flash point in the ongoing disagreement between the pro-Second Amendment camp and the pro-gun-regulation camp.

Rikki Schlott: Can you tell me a little bit more about that? Because honestly, I don’t know much about guns myself, and you just referenced two different kinds, and I don’t even know what we’re talking about. What specific aspects of the AR-15 are being targeted or singled out beyond the aesthetics, and what would make them more or less lethal or dangerous than other weapons that are relevant in mass shootings, for example?

Clark Neily: Yeah. So when it comes to rifles, which is what we call a long gun — it has a long barrel, it’s not something you hold with one hand — you could think of a spectrum going all the way back to the time of the founding, where you would have a single-shot weapon. If it’s got a twist in the barrel in order to make the projectile spin, that’s a rifle; if it doesn’t, it’s a musket. But the point is you can really only load and fire one round at a time — you’ve got a relatively slow rate of fire. And then, as time goes by and the technology improves, the ability to fire more and more rounds out of that rifle increases. You can do it faster, you can do it more accurately, the muzzle velocity of the projectile coming out increases. So in some sense, these rifles get more lethal both because you’re able to put out more projectiles and also with more velocity and more energy. And what you arrive at ultimately is where we are today, where the most commonly owned rifle is the assault rifle, or as others say, modern sporting rifle — it’s the one you have in mind when you think of AR-15 or assault weapon. It is a rifle that will typically have a magazine that extends out from the bottom of the weapon that holds typically about 30 rounds — some people would say bullets, but if you’re precise, you say rounds — and it typically has what’s called a pistol grip, which is you can wrap your hand around it while also placing your finger on the trigger, which provides for a bit better control. And again, it’ll have a number of other features that are kind of more or less randomly thrown into a statute. And it’s not as simple as saying, for example, that a particular breed of dog either is or is not a beagle, or is or is not a golden retriever — think of these weapons as a bit more like a mutt. It’s got some of this, it’s got some of that. But these statutes are written in such a way that if a firearm has a number of attributes — again, it could be a pistol grip, a barrel shroud, a flash suppressor in the front, a number of others — then it ticks enough boxes and you’ve got a forbidden so-called assault weapon.

Rikki Schlott: Okay. And so you said that they’re the most commonly owned weapon or gun. What’s the scale of that? How many people would be impacted if we were to institute a national ban?

Clark Neily: Nobody knows for sure, but the estimate is that there are at least 20 million and probably more — probably about 25 million — of these weapons, assault weapons, in private ownership. And they’re popular for a number of reasons: they are good to shoot at a range, they have relatively low recoil, the ammunition is fairly inexpensive. Contrary to what people who don’t know anything about firearms would say, they’re excellent for home defense, particularly for people of a smaller stature who might have more difficulty handling a heavier weapon or aren’t as comfortable firing a handgun, which is less accurate for most people.

Rikki Schlott: Why would a bigger gun be better for a small person?

Clark Neily: Yes. So you can get two hands on it, so you can support it with two hands, whereas pistols have less surface area for that. You have a longer barrel, which makes aiming more accurate because the sights are further apart, which enables you to get a better sight picture. And it’s just generally, for most people, going to be a more stable platform.

Rikki Schlott: And so is this case just about AR-15s, or are there broader constitutional questions that are coming up in it?

Clark Neily: I think you can see it through both lenses. So technically speaking, all that is at stake in this case is whether a particular class of firearm that has been denominated by Cook County and Connecticut as a forbidden assault weapon is or is not protected by the Second Amendment — that’s the answer we’ll get in this case. But it certainly has greater implications, because there are other types of weapons, and other jurisdictions ban other things. There was actually a case that went to the Supreme Court a number of years ago involving stun guns. Massachusetts had a stun gun ban, and that was upheld by the Massachusetts Supreme Court, but it went up to the U.S. Supreme Court, and without even getting briefing, without even setting the case for argument, they just reversed and said, no, you’re wrong about that. So there is certainly an open question that really is probably going to have to be answered on a case-by-case basis: what weapons exactly are included within the constitutionally protected term “arms”? What we know right now is definitely semi-automatic pistols, and apparently stun guns as well. But beyond that, the court really hasn’t had occasion to go through other pressing questions, including — as we’ve discussed, probably the most salient one — whether the most commonly owned rifle in America is or is not protected by the Second Amendment.

Rikki Schlott: So I want to talk a little bit about your personal history, too, and having been part of this case, District of Columbia v. Heller, in 2008. What is the legacy of that case? What did it establish?

Clark Neily: Right. Well, for a couple hundred years, you had the Second Amendment to the Constitution, which has wording that admittedly is susceptible of more than one interpretation. The Second Amendment reads: “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.” Up until 2001, the U.S. Courts of Appeals — the federal courts of appeals in our country — were in unanimous agreement that, while they didn’t have a shared understanding of what the Second Amendment does mean, they had a shared understanding of what it doesn’t mean, which is that it does not protect an individual right. And the Supreme Court basically never weighed in. There was one 1939 case called U.S. v. Miller that was essentially — I call it a four-and-a-half-page judicial Rorschach test. You can project anything onto it that you want, but it didn’t resolve this question of whether the Second Amendment protects an individual right. In 2001, the Fifth Circuit Court of Appeals, which covers my home state of Texas along with Louisiana and Mississippi, became the first federal court of appeals to take a really serious look at the meaning of the Second Amendment. Up until this point, you wouldn’t have seen more than a couple of sentences on the question from any court. The Fifth Circuit took a really hard look at it, wrote a 65-page opinion, and came to the conclusion, splitting from all these other circuits, that yes, the Second Amendment protects an individual right. This really put the issue on a fast track to the Supreme Court, because that’s the number one way to get a case to the Supreme Court — to be able to tell them that the lower courts are in disagreement about the meaning of some important federal law or especially a constitutional issue. And so Bob Levy and I, and a colleague of mine at the Institute for Justice where I was then, named Steve Simpson, essentially came up with the idea of trying to get this question of the meaning of the Second Amendment up to the Supreme Court. Part of the reason why we felt that was so important, by the way, is that in the wake of the Fifth Circuit case that I mentioned, which was called US v. Emerson, criminal defense attorneys started doing something they had not been doing up until that point — asserting Second Amendment defenses to gun charges against their clients, because now you had an actual case you could point to. What we wanted to do was try to avoid a situation where the meaning of the Second Amendment ended up getting presented to the Supreme Court in the guise of a criminal prosecution, potentially involving a really bad person or really bad acts. Maybe you’ve got a carjacker who says, “Well, perhaps I shouldn’t have kidnapped the car full of people, but I certainly had a constitutional right to the gun that I used to do it.” That’s obviously a bad posture for that issue. So we set out to try to recruit a very appealing group of plaintiffs, which we did — we got six very appealing residents of Washington, D.C., which happened to have the most sweeping gun ban in the country at that time. So there were three things that really lined up here in D.C. One is that we had this very restrictive law that banned all handguns, and while it allowed shotguns and rifles, it was illegal to put a round in the chamber, so you couldn’t even load it. It was also one of the few courts of appeals that had not weighed in on the question of the Second Amendment, so we had a blank slate. And then, somewhat uniquely compared to the states, the Bill of Rights actually does not apply directly against states — it’s a bit of a bank shot. But the District of Columbia is a federal enclave, federal jurisdiction, and so the Bill of Rights applies directly. So these were basically the three circles in the Venn diagram that overlapped and said, yep, D.C. is the place to challenge, or to try to vindicate, the Second Amendment.

Rikki Schlott: So, Clark, what exactly was the outcome of this case?

Clark Neily: Heller held that the Second Amendment protects an individual right to own a gun at home for self-defense, while also stating that the Second Amendment may not cover dangerous and unusual weapons — but without really identifying what those might be or explaining what was meant by that concept.

Rikki Schlott: Interesting. And so I also want to ask you about this distinction that has been used in various contexts, between a common-use weapon and dangerous and unusual ones. What does that test actually measure for, and what does it mean functionally?

Clark Neily: I’m not entirely sure. This was a term that was, in my view, kind of thrown into the Heller decision, meant to serve as a kind of guidepost about what arms might be protected and which ones wouldn’t — because you don’t have to have a crystal ball to see that eventually the court is going to have to make some really difficult decisions. I mean, think about it: is a surface-to-air missile an arm? It’s certainly a weapon, but is it plausible to suppose that the Second Amendment protects people’s ability to own a weapon that can take down a commercial airliner? Maybe, but we want to think that one through. And then you get to something, frankly, kind of silly, like a tactical nuclear weapon or some sort of chemical or biological agent that could wipe out an entire city. I find it rather implausible that those would be encompassed within the term “arms,” but you need to have a theory of the matter. So I guess that phrasing, “dangerous and unusual weapons,” was kind of the court’s effort to take a stab at where that dividing line might be. But it’s interesting, right? Because we’re talking about a weapon, and if it’s not dangerous, it’s really not a weapon. So it seems to me that “unusual” is doing all the work in that formulation, but I’m not entirely sure what it means.

Rikki Schlott: And I also want to ask you about another important case in terms of precedent here, which is New York State Rifle & Pistol Association v. Bruen. How did that change the way courts look at Second Amendment restrictions?

Clark Neily: Yeah, that was a really key case. Normally, when courts assess the constitutionality of some restriction of your freedom, they apply a legal or analytical framework that we lawyers refer to as tiered scrutiny. All that really means is: how strong of a justification does the government have to have for whatever restriction it’s trying to enforce? If it’s something to do with speech or religion, it’s going to be a very strong justification, and we refer to it as strict scrutiny. If it’s something a little bit less important, then so-called intermediate scrutiny will be enough. And if it’s a right that the Supreme Court considers to be unimportant, like property or economic liberty, then almost any explanation will do. What the court did in this Bruen case is just threw that out — said, we’re not going to do this tiered-scrutiny approach. I think in part because what it had seen was lower courts doing this in a very disingenuous way, where the Supreme Court had made clear in Heller that whatever the framework is here, it’s not a kind of rubber-stamp framework that gets applied, again, to things like occupational freedom or property rights. But lower courts mostly did that anyway. So what the Supreme Court said in Bruen is that we’re going to take a different approach to the Second Amendment, and we’re going to do — it’s been called a variety of things, but it’s often referred to as text, history, and tradition. And to distill that down to its essence: if the conduct at issue, like owning a particular kind of weapon, is clearly within the ambit of the Second Amendment, then the burden shifts to the government to identify a sufficiently analogous historical regulation. It doesn’t have to be exactly one for one, doesn’t have to be on all fours, but it has to be sufficiently analogous to essentially validate whatever the modern regulation is. And if they can’t find that historical analog, then the court is going to strike down the challenged law.

Rikki Schlott: Okay. And so where do Heller and Bruen leave the assault weapon bans? Can the government decide that a common weapon is just simply too dangerous at this point?

Clark Neily: That’s obviously the question that’s going to be answered in this Viramontes case. My sense is probably not, and for the following reason: when you look back in history, at the time that the Second Amendment was ratified, there were no restrictions on your ability to own the most lethal weapons available to human beings at the time. And the most lethal weapon probably at the time would have just been a cannon, right? And you could absolutely buy one of those if you wanted to — in fact, people did. Merchants at the time, if you were going to sail a ship full of cargo somewhere, there was a very good chance you were going to put a cannon on board, because you couldn’t count on being protected by the U.S. Navy all over the world. And there’s a constitutional provision that actually empowers Congress to issue something called a letter of marque and reprisal — that essentially makes you a government-authorized pirate to go and prey on the commerce of our enemies, and you’re going to need powerful weapons in order to do that. So I think that historical environment is going to be highly relevant in the Viramontes case. They didn’t have semi-automatic weapons — or they kind of did, but they basically didn’t — in the latter part of the 18th century. And so the court is essentially going to look at, well, were there restrictions on what kind of weapons people could carry around with them? And there really weren’t. There were some restrictions on how you store the weapons — if you’re going to have a big pile of gunpowder somewhere, they could regulate how you did that, because obviously a big pile of gunpowder going off all at once is a big problem. But those were safety concerns against sort of the negligent discharge or detonation of a bunch of gunpowder, not restrictions on ownership itself. In terms of just, if you wanted to show up at a church picnic with your cannon for whatever reason, I’m not aware of any restriction that would have prevented you from doing that — and certainly not if you wanted to put it on your ship that was about to take a bunch of cargo from here to there. So I think probably neither Cook County nor Connecticut is likely to be able to come up with a historical analog that a majority of justices will find satisfying in this case.

Rikki Schlott: And this is probably a 101 question, but it occurs to me — what did the founders envision people were doing with these weapons, and the reason that they chose to protect and designate this? Is it reasonable to say that there are uses or functions of modern weapons that are just so far beyond even the conception of the founders? And so what essence and principle are we worried about protecting here, as libertarians?

Clark Neily: It’s a great question, and I don’t want to say that I have a completely satisfactory answer, but let me just start by saying, let’s be careful and be modest about answering this question — because we tend not to ask this question when we talk about the right of free speech, for example, or the right of religious freedom. Well, what exactly were they trying to do with religious freedom? Why is that a useful thing to protect? We think about it more as: that’s just a fundamental right, it’s freedom of conscience, it’s a freedom to express what’s on your mind, whether it’s in the form of a poem or a rap song or an anonymous pamphlet urging people to engage in revolution — which clearly was very much on their mind at the time. But putting that aside, I think we can at least say this: in the world they knew, there was no professional police force. There were hostile natives on the frontiers of many states where colonists lived. Many, if not most, Americans in the late 1700s still shot for the table — if you didn’t live in Boston, New York, or Philadelphia, you probably were putting at least some of your food on the table using a firearm. And so there were many personal reasons: if you were going to go on a trip of any length between one town and another, you were going to bring a firearm, because you weren’t sure who you were going to encounter along the way. But then there was a political dynamic to it as well. They were very concerned about the amount of power they were about to confer on this brand-new national government that was created or constituted by the U.S. Constitution. And one of the responses to people who felt that it might be a strong enough government to tyrannize the people was that if the government tried to do that, it would be met with — and I forget the exact quote — but something like a half a million men with guns in their hands, meaning that the citizens of our country would be able to rise up with their personally owned weapons and push back and fight back against any attempt to oppress or tyrannize the population. And I think that was a very serious argument. It’s maybe harder for us to take seriously today, but they took that argument deadly seriously at the time. And that is exactly what they had in mind — that if they had made a mistake and created a national government that was not only capable of, but inclined to, tyrannize the people, it would be opposed by, in effect, an armed informal militia. And a militia doesn’t have to just be a formal, government-controlled organization of soldiers — a militia can really just be a bunch of people who get together for a common purpose with their own guns. That is what the founders would have anticipated would be one of the applications of the Second Amendment: to protect the entire country against a tyrannical government through armed opposition.

Rikki Schlott: So help me square two contradictory beliefs that libertarians seem to hold, which on one hand is that individuals have the right to bear arms, and then on the other, that local jurisdictions have the right to govern the people and put whatever rules in place that they may want to. How do you square those in the realm of gun rights, and what should states do to respect that tension?

Clark Neily: It’s a great question, and I think, let’s be clear, maybe that seeming conflict or tension may be more apparent than real. I would say that the very definition of a libertarian in some ways is somebody who believes that there are limits on government — that there are certain things government cannot do. Government cannot legitimately oversee and validate, or reify through law, a system of chattel slavery. Government doesn’t have the ability to say, “Oh yeah, well, in this jurisdiction, if you want some people to be for sale, that’s okay” — that’s not, that’s inconsistent. Another example: I believe it’s still Oklahoma that holds the record for banning the most books. So if the people of Oklahoma say, “Well, we don’t really want our kids reading Harry Potter books because they have magic wands in them and witchcraft, so we’re going to ban those books” — we know, and I’d say not just from our high school civics class, but we know kind of in our own DNA as Americans, that that’s not a legitimate exercise of government power. So I would say that for many, and perhaps nearly all, libertarians, there is a belief that it is beyond the power of any political actor or any jurisdiction — federal, state, local — to pass a law that says you may not defend yourself against somebody who attacks you. You have a natural right of self-defense that predates the existence of government, and the ability to do that effectively, by picking up a weapon and using a weapon, is merely an extension of that natural right of self-defense, in much the same way that the ability to go online and put up a blog post, or print and publish an anonymous pamphlet, is an extension of your right of free expression.

Rikki Schlott: Interesting. I do imagine that proponents of these bans would make the case that AR-15s are especially dangerous and have been proved to be especially dangerous based on mass shootings. How do you think the Supreme Court will evaluate those claims, and what do you say to them?

Clark Neily: So I think the Supreme Court is going to say that’s irrelevant, which may not be entirely true. I think if we were talking about a surface-to-air missile, or again, kind of a silly example, a tactical nuclear weapon that had the ability to wipe out a vast number of people, they actually probably would find that it is somewhat relevant how dangerous the weapon is. But I think in the context of firearms, or at least these firearms, that’s not likely to get much purchase with the court, if any. Instead, what I think the court is likely to say is: look, just like we’ve tried to keep up with technology in the First Amendment space — so we protect smartphones and the internet — and we’ve tried to keep up with it in the Fourth Amendment space — so we protect, for example, your ability not to have police look into your home with a thermal-imaging device just because those didn’t exist at the time of the founding — the bottom line is that this is a sort of pragmatic or practical argument that you could imagine having more force in scenarios involving weapons of mass destruction. The last point I would make is that it is something of a misconception that assault weapons are substantially more dangerous than other kinds of weapons. As we talked about earlier, most mass shootings are committed with semi-automatic pistols, not semi-automatic rifles, not assault rifles. And if you look just within the category of rifles, there are any number of rifles that are much more powerful — rifles used for hunting big game. Many of those rifles feature virtually all of the same components or capabilities as an assault rifle, typically not as large a magazine — that’s the one thing that’s going to be different, with an assault rifle you get more rounds. But there are substantially more powerful rifles out there that are perfectly lawful to possess, even in the jurisdictions that are enforcing these assault weapons bans. So I think this idea that there’s something unique about assault weapons is going to be a tough sell if you actually drill down and look at the empirical data.

Rikki Schlott: And if I could ask you a more philosophical question, zooming out — what would you say to someone who might say, you know, I understand why the Second Amendment exists, I understand the importance of self-defense and potentially rising up against a tyrannical government, sure. But I’m also just deeply uncomfortable with the reality that school shootings are more and more common, that mass shootings happen, that people’s lives and their right to live without feeling in fear of imminent danger are also being impeded by this other right. What is the libertarian response to that, besides just, “principles only, this is collateral damage in a free society”? How do you address that very human concern that a lot of people have, and the discomfort that they might have around the Second Amendment for that reason?

Clark Neily: Yeah, that’s a really great question, and I appreciate the opportunity to try to engage with it. The first thing I would say is, don’t dismiss it — I think in most cases that’s a sincere concern that people are expressing, and I think we should engage with it and shouldn’t be dismissive of it. That said, I do think it’s reasonable to say, look, I understand where your concern is coming from, but let’s actually take a look at the underlying facts. So, gun deaths have dropped substantially in this country. It is still the case that more than half of all gun deaths are suicides, which is tragic, but that shouldn’t trigger the kinds of concerns where you’re at risk from somebody who wants to kill themselves with a gun — we can put that part of the conversation to one side. If you look even more closely, what you’ll discover is that most people who are killed with guns are themselves either engaged in, or associating with people engaged in, criminal activity. So if you’re not doing anything illegal, you’re not in the drug trade, you’re not part of organized crime, your chances of being a victim of gun violence are very, very low. I would say the next largest category — I’m not positive about this — is probably domestic violence. So that’s certainly a legitimate concern, but keep in mind, there are plenty of times when women have defended themselves against domestic violence using a firearm. Generally speaking, men tend to be physically stronger and more aggressive than women, and so there are certainly plenty of occasions where it’s in a woman’s best interest to be able to have access to a firearm. Now, that can certainly be turned around — I don’t mean to suggest that the data only runs one way here. But at the end of the day, I think we come back to libertarian first principles, which is to ask: have you articulated a sufficiently powerful justification to take away from somebody the freedom to do a thing that they wish to do? And we know that that can happen. If you’re a 10-year-old kid who really wants to drive a car, we’re going to say, well, you’re going to have to wait. Or if you’ve consumed a certain amount of an intoxicating substance, we’re going to say, well, you may wish to drive your car, but a law preventing you from doing that right now is permissible. Now, many of us libertarians disagree, for example, with our drug laws — it may be a very bad idea to put certain substances in your body, but most of us would say you still have the ability to do that. But you have a moral obligation to respect the rights of other people. Just because you’re addicted to a drug, or just because you’re high on a drug, doesn’t give you any special license to go and steal from people or commit violence against them. So we expect people to exercise whatever right we’re talking about — whether it’s consumption of drugs, driving a car, or owning a firearm — responsibly. And if it’s not being exercised responsibly, then we’re having a separate conversation.

Rikki Schlott: And just to end things here, what are you going to be watching as this case unfolds, and what would each outcome potentially mean? What principles could be established?

Clark Neily: I think the most significant thing to look for in this case is, first, if the majority agrees to strike down the law — which I think they probably do, let’s say we have a majority that says the law should be struck down — what is the exact rationale for that? What do they do with the historical analogs that are advanced by the people defending the law, and if those are found to be insufficient, why were they insufficient? I won’t get down in the weeds further than that, other than to say there’s quite a bit of unresolved doctrinal tinkering in terms of what exactly this analogical historical analysis looks like. And so I would expect the court to take this opportunity to build that out a bit more. You may recall there was a case called Rahimi a couple of years ago at the Supreme Court — I think it produced, I can’t remember, either seven or eight different opinions from the justices. So they are very much not on the same page yet. And so what I’d be looking for in this case is to see if there’s some convergence around certain through-lines, or certain ways of performing this historical analogical reasoning, and see if they’re making any progress on that. Perhaps they will, perhaps they won’t — they may even surprise us. Maybe I’ll be wrong, maybe they’ll uphold these laws and we’ll go in a completely different direction.

Rikki Schlott: Well, this has been fascinating, and thank you so much for taking the time today.

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