tv Long Island Federalist Society - Gun Laws CSPAN May 28, 2018 2:31pm-3:45pm EDT
before the supreme court. he spoke at the long island federal society -- long island federalist society. the senate majority pack president will be talking about democratic major elections. then the ceremony at the arlington national cemetery with president trump and members of his administration. >> could i ask for everyone's attention? i would like to introduce myself, i am the president of the long island lawyers chapter of the federalist society for law and public policy. lawfederalist society for studies is a group of conservative and libertarians interested in the current state of the legal order founded on the principles that the state exists to preserve read him,
that the separation of governmental powers is central to our constitution, and that is emphatically the province and duty of the judiciary to say what the law is, not what should it be. the society should further their application through this activities. very excited to present to you our speaker this evening. holbrooke is a senior fellow at the institute. he has taught legal and political philosophy at george mason university, howard university, and tuskegee institute. the winner of three cases before the u.s. supreme court has testified before the subcommittee on the constitution of the senate judiciary committee. subcommittee on crime of the house judiciary committee, senate governmental affairs
committee, and house committee on the district of columbia. a contributor to numerous scholarly volumes, he is author of the books gun control in the third reich, disarming the jews and the enemy of the state." founder of the second amendment -- "founder of the second "targett," and is also the" he author of the forthcoming title, gun control in knots he occupied france, which will be available beginning next month on amazon.com and other booksellers. i presentgreat pride you stephen p halbrook. [applause] steve: thank you, it's great to be here. i spoke here in the early 90's.
i think the title of my address tonight is supposed to be a salt weapons or assault on the constitution. that's a big issue now. it was also a big issue in the early 90's. california became the first date nationwide to ban any kind of before the so-called assault weapon mania started. rifles were considered good, handguns were considered bad. and new york state, there are a lot of judicial decisions talking about how great rifles are. up until that point, rifles were considered really good. in the early 90's new york city enacted a weapon ban. .mily litigated that in a case was he the mayor than? i remember a few things now.
they banned rifles that had a magazine more than five rounds. that's when i spoke to this group earlier. it has been 20 years ago or more. it was a pleasure to be here then. what the definition of assault weapon? there is something in alice in wonderland were some of he says what does a word mean, anything you wanted to mean. i'm an attorney, sweat look at a lot of judicial decisions. universally the term assault means -- you will find cases where there the prisoners to struck the guard using an assault weapon, a broom. generically, that's plain english.
rifle wasssault invented by not to germany -- by not see germany -- by nazi germany. that came to mean and refer to the ak-47, developed by kalashnikov. of these types of military equipment, full auto means if you pull the trigger it empties the magazine. it continues to fire by a single pull of the trigger automatically. it goes on and on like that until you have no more ammo. whereas a semiautomatic means a firearm that you have to pull the trigger for every shot. the way the propaganda term came was when the first groups
they wanted to ban rifle started dealing with that issue, as , they saidhandguns why don't we call them assault weapons, these semi automatic rifles we want to ban? that confusing to the public and favorable for us, because it makes them think beats that think these are machine guns we are talking about. we end up with california and new york state. it was a federal law on assault weapons. there was a study done and showed that it had no beneficial .urpose such bans existed in connecticut and maryland. most states don't ban ordinary rifles. will see so-called ar-15 rifles, which are nothing but semi automatic rifles that should -- that fire one shot per
trigger pull. that's the most popular rifle today in the u.s.. these enemies that ban these kinds of rifles -- and i use the term rifle because that's mostly what spanned, not handguns or shotguns. they say it's a semi automatic rifle that has a detachable magazine. none of them are banned just because of that. they go on to have a list of features where the rifle has one or two of those features. it's a felony to possess it. it's not something to play lightly with. and to illustrate the word means anything you wanted to mean, the definitions are opposite of each other.
so new york city, and finally when new york state banned these has a, if it semiautomatic feature, a detachable magazine, then it's not an assault weapon, unless it has one of the features on the list. of thethe feature -- one favorite features to list is a pistol grip. they didn't say a pistol grip that protrudes at six inches or anything precise like that. it's like beauty, it's in the eye of the beholder. in any event, it's a pistol grip on a rifle. state of to the maryland, which has this assault weapon ban, it does not include the protruding pistol grip. you had all these exaggerations about how deadly something is.
sometimes a semi auto rifle is nothing but a semi auto rifle. it's not going to be any more powerful or deadly than any maryland doesn't have that feature. if you go to chicagoland, they have a ban and its assault weapon if they have pistol grip but no shoulder stock. how can you tell me once deadly and the other one is not one they are so extorted nearly deadly they have to be banned and put people in prison for many years the fact is it said marbury -- it's an arbitrary designation. you can have a semi auto rifle
but not paper trading pistol grip. ar-15 and state law. they took the pistol grip off and you can legally selling rifle in this state. --y have a very weird griff weird grip. it's very ugly. the manufacturers and the retailers yet compliant. it's a very silly law. another favorite feature is a telescoping shoulder stock. how would you like to live in a society where all shoes were the same size? you can get a lot of shoes at but they fit the
consumers. where all the rifles have a shoulder stock where they can make it a little bit longer. that's one of the list of astures that makes it listed a felony, if you have an adjustable shoulder stock. that makes it more concealable. beyou don't want a rifle to smaller than a certain link, you can just say that, you can say it's 26 inches, which is the federal standard. if the shoulder stock adjusts and is shorter than 26 inches, it is not considered concealable.
the shoulder stock can adjust to or three inches. in thees all this mean context of the second amendment? what happening is politicians say they want to do something, it's the same story. one of they say -- they say why do we do something about gun violence, and they can or some people didn't get prosecuted, they should've been on the criminal background checks list. you can go through one tragedy after another and you will see government failure. parkland florida is a good example where the texas church shooting, one after another. a politician, when we make people think we are doing
something? dreaded pistol grip, why don't we ban that? how do we justify it? how about it makes it where you can spray fire from the hip? that sounds really juicy. if you hold a rifle from the pistol grip like that, you are not going to hit anything. more comfortable if you have a traditional stock on the rifle. they don't manner in this context because you have judicial decisions coming down and saying that. the pistol grip is so deadly because you can shoot from the hip. it's not evenwhen any tragedy that happens in that context and you will find rifles with pistol grips in the olympics.
how many of you watched the biathlon events in korea? all those rifles had a pistol grip. i think they had five shot magazines. there are other disciplines that use airguns and not even firearms. they had the same type of pistol grip. once again these are arbitrary characteristics. listen to the cap -- listen to the second amendment, there's a keyword in it, arms. arms are weapons, that's what mentz -- what is meant to be protected. the guy that something may fire a projectile and can be used as a weapon, that's what the second amendment was meant to protect. the text of the second amendment is a well regulated militia necessary to the security of the
free state, the right for people to keep and bear arms shall not be infringed. just like the first amendment has five or six different thoughts. the fourth amendment has two. bless the warrant requirement. it's not like because a constitutional guarantee hasn't thought that one thought has overcome another thought to? that's the case with the second amendment. is being considered necessary for a free state. howdy you encourage a militia that type? it might be what we recognize the right of people to their arms? if you have an arms bearing population, it would be easier to raise a militia as opposed to having a standing army.
what happened over time is back in the 1960's we had a lot of violence in this country. with the kennedy kingers and martin luther and all the disturbances and the vietnam war. to don't we make it a felony do all kinds of things with guns and not to misuse guns but to create technical felonies. .ome of which they didn't get .e have the passage of 1968 and the justify it many people
-- there's the power of the state to maintain relations that maintain militias. to keep and bear doesn't mean keep and bear. it means states can have malicious. as a go back to the origins of the second amendment and the congress over the bill of rights, given to propose adoptedes, it wasn't until 1791. and the constitution was until 1789. the right to keep and bear arms wasn't controversial. but it was controversial as to what the power of the states and
the federal government would have over a militia. and the so-called anti-federalists wanted to have a provision that is the converse didn't promote and maintain a militia, then the states could do that. the secondt put in amendment, but what was put in principletical without substantive right, and malicious thing a free state has. there you have it, when the collective rights of the second amendment was invented in the 1960's, that doctrine was invented so you could justify any kind of gun control scheme, any kind of prohibition. in other words we talking about denying any kind of individual right. that the have to worry
second amendment been an obstacle to gun legislation that you want to pass. was was weird about that what does the word people mean and what is the right of the people? if you go to the first amendment you'll see the right for people to peaceably assemble. and the fourth amendment, the right to be secure in their papers houses and effect from unreasonable searches and seizures. when it comes to the second amendment, it's not a right of the people anymore, it means something totally different. it never was a credible doctrine, but it had a lot of sway. if we turn the clock up this case lands on the supreme court docket, district of columbia versus heller.
the supreme court never ruled definitively on the meaning of the second amendment. you have quite a case that drew much attention nationwide. a member of the corridor. a briefe honor to file on the behalf of majority members and the house of representatives. it wasn't a republican brief, it was a bipartisan brief. it argued the second amendment does protect individual rights and handgun ban violates the second amendment. in any case, the supreme court took that case and nobody knew what they were going to do. it was one of those cases everybody worries about on both sides of the issue.
most of the cases are pretty boring. they have a special lawyer section i got to sit in. the cases being argued and nobody knew where justice kennedy was going to be on this. he's the swing vote. halfway through the argument, just as his mouth starts to open and everybody is hanging on the and he asked seats the government lawyer from the
district of columbia, where the colonists and settlers and founders of this country, didn't they need guns to protect themselves from criminals and indians and grizzly bears? we will forgive him for thinking there were grizzly bears east of the mississippi. indicated an individual rights interpretation. how they are going to come down based on things they may say. late june and the chief justice will say who'll read a summary of a specific decision. summaries were going to be read. justice stevens will summarize
the decision of the court. lost if it was the same case. he said justice scalia will summarize the decision of the court. the district of columbia was very defiant. they went out on the steps of the supreme court. all guns have to be registered in the district of columbia. to casts thatg going to cancel your registration every three years. they imposed a lot of requirements. we had a team that litigated it's anquirements
individual right, at says the people, keep and bear arms. it's not confined to a militia. twoe were four justices but dissenting opinions. you heard recently he wants to repeal the second amendment, that's because he didn't get his way in the heller case. says the right to keep and bear arms has an individual right to bear arms in the militia. do you have a right to be in the militia? do you have a right to do what you want to do in any kind of military force? no.
so that was more or less contrived. close, 5-4.s justice justice breyer had a in the case,t where whatever the legislature did, they uphold anything they do. understandre able to what is constitutional and what is not. really? do you say that on other issues of other types? no. the day after that decision came down, the district of columbia is a federal jurisdiction. therefore the second amendment applies. other way, i've done some
litigation. these travelers, they don't understand. they are making a connecting flight or maybe they are coming and theyhiladelphia are checking their bags at jfk and that follow the tsa requirements that i'm declaring there is an unloaded firearm in my baggage. there is a federal law that says that is legal. law if you have a state like gun ownership, and you , the federalicense law says you can transit that state and they cannot arrest you. i had a client who is a lawyer.
so they called the police. the tsa guy defends the lawyer and says to the cop, this is federal law. york cop says, this is new york, federal law doesn't apply here. you all know what i'm talking about. in any event, the question was whether the bill of rights or the second amendment applies. many states with strict gun laws always argued before these cases that the second amendment doesn't apply here. even though the district is not a state.
the only other handgun bans are what i call chicagoland, cook ,ounty chicago, morton grove all those little jurisdictions around the chicago area. so they pass these laws. lawsuits were filed against joe -- against those jurisdictions to invalidate those laws. in the case of mcdonald's versus chicago, the pro-second amendment side prevailed. the supreme court held the right to bear arms is a fundamental to alls supported law-abiding citizens and it is not something a state can violate. all those laws went by this that went by the wayside.
other than one case that was a little more minor, i will mention now there was one other supreme court case that nobody saw coming. massachusetts does ban mere possession and there was a woman who had been beaten up by her boyfriend, she had restraining orders, and he was threatening her and so she carried a stun gun to protect herself and she was caught with it by the police and they busted her and that case went all the way up to massachusetts highest court and the court upheld the ban on stun guns and said the second amendment does not protect it. the case with to the supreme court and they said you really did a sloppy decision and you upheld this law on grounds that we did not savor the correct way to reason this summer going to remand the case back.
it basically said that based on prior rulings it would seem that stun guns are protected by the second amendment. that's the last word by the supreme court, it has not heard any other cases, but a lot of the lower federal courts have been in rebellion against the supreme court and there have been several cases of litigation brought where the lower federal court upholds these bans on so-called assault weapons. getting back to that subject, the states after the sandy hook tragedy and massacre, you had new york and connecticut very quickly enacting legislation, i -- then new york it was massacre took place, maybe about two days later, waiting in the
wings there was a massive new law called the safe act that was actually enacted and signed by the governor would know committee hearing, without any kind of real debate. -- with no committee hearing. ie law was already drafted it guess waiting for the right tragedy to take it vantage of. passed, and it had some weird things in it, what is incredible is that new york is to have two different teachers that a gun had to have to be considered an assault weapon. you start out with, it's not good enough to be a semiautomatic rifle that has a detachable actsing, it has to have two other features. the overnight when that law was passed, what was an assault weapon yesterday, there was a lot more stuff that was an assault weapon the next day when that law was signed.
which again shows you the arbitrariness of these definitions. it was change is having one, and those features are the types of features i described earlier they had no effect whatever on the power of the god. it also banned magazines that hold cartridges, that hold more than seven rounds. not realizing that hardly any guns have magazines that holds evan rounds, they are just not available. the cool part is they forgot to include law enforcement officers. that's what happens when you enact something overnight like that without any consideration of anything. so they went back and did some amendments to the law so that it
would exempt law enforcement officers. but they also did something else , after the governor found out that there are not magazines that are just seven rounds available virtually any guns, that would mean you would be basically banning most guns because they don't have seven round magazine's that come with them. so you would not be able to buy any new guns except for some small number that happens to have seven rounds. becauseamended the law there are a lot of guns that you could get 10 round magazines for. round things are the limit, guess how many rounds you could put in it? seven. so you have all done your math. are at a metallic silhouette competition or the shooting rounds, you can have 10 rounds, but if you're at home
and keep a gun for self-defense, you can only have seven rounds in. so i was part of the litigation and weallenging that law first of all,hat the 10 round limit is arbitrary. standard magazines for handguns mostly have anywhere between 10 and 17 rounds that they hold. rifles, standard 30azines are between 20 and because they are used in target matches and people keep them also for self protection and you want to have enough rounds in it to do the job if you have an. what the legislature ended up doing was, making the 10 round limit, 10 rounds is just as arbitrary as evan rounds,
especially when we look at what is the national norm. in thethe holdings heller case in the supreme court was at the type of firearms in common use by law-abiding citizens for local purposes are protected by the second amendment. that anybodyst say who would want one of these what we're going to call assault weapons must be a criminal. every single firearm when its first sold at retail in this country has to go through a federally licensed gun dealer and there has to be a background check. everyone who's ever been cleared for purchase of any firearm goes through a background check. background also have checks for private sale. so it's not realistic to try to argue that anybody who would buy one of those is some kind of criminal or has criminal intent.
specifically, there has been use of some of these rifles in horrible tragedies, and if you look at the actual data, the number of murders in this country, they don't even compare , the number of rifle murders is very low. and guns account for most murders. these of litigating how many rounds can a magazine can is a separate issue of you just make a list of guns are going to ban by name or by these teachers and does that really have any leeway in terms of why it's not protected by the second amendment, the rifles you are banning area so we get all the way to the -- actually restarting the district for for the northern district of new had a judge you invalidated the seven round
limit. it's like, you got to be kidding. you expect law-abiding citizens in aly put seven rounds magazine and you expect criminals to just have the 10 round magazine -- magazines and their want to only put seven rounds in it. we argued that while would you expect criminals to limit themselves to 10 round magazines and wise 10 not an arbitrary number just like the others. when the supreme court said guns that are in common use by law abiding people that are preferred by american citizens, those are the ones protected by the second amendment. how do you get around that? they call it intermediate scrutiny and they kind of do a balance and they say on balance, the government wins and you lose , and there is a basis for these , but they banned
cannot articulate what the basis is for these features that are banned, like the horrible truing pistol grip and the adjustable shoulder stock. spends very little , but thehe issues district judge did invalidate three produce -- positions as vague, legislature could not describe what they were criminalizing. was, if one gun is somehow related to some other kind of gun that is banned, it's like a feature of other stuff like that, you might as well say other stuff like that in the law. so he said that's not good enough. was, a riflene
with a muzzle rate -- muzzle break is banned. i don't of how much english you people in the legislature had going to school, but if you ,anted to ban a muzzle brake you need to say so, so be through that part out. so the second court of appeals, three judges in manhattan, that's good enough for the legislature, they can say break and you are supposed to know what they mean, and it's like, whatever, we are going to uphold that part of the law, and actually the court upheld everything else except for that seven round magazine, that just doesn't pass the straight face tests, does it, that you can only have seven rounds in a 10 round magazine. like you're going to expect
anyone to do that? no. you expect criminals to go by the 10 round limit? rule with a go by that when they violate the law against home intrusion or burglary or robbery or whatever. that's the problem with all these gun control schemes is that if you are just restricting the type of metal that it is an bringing everybody under the law and criminalizing everything just because of some feature, it totally ignores that we need to focus on criminal intent and criminal actions, putting people away who actually hurt people, who commit robbery and murder and rape and whatnot. focus ofally the whole the so-called gone -- gun control controversy. once again, just like with assault weapon, you have a lot of essentially propagandistic terms used in this debate.
it used to be gun control, that term was a standard term by persons who supported gun control, although others, people who are into competitive shooting say gun control means keeping the sites aligned properly. but the word gun control doesn't resonate too well in the public mind, so now the term that is being used to ban guns and put you in prison for having certain kinds of guns is the term gun safety. or better yet, common sense gun safety. and it has nothing to do with gun safety, it has to do with incarceration of otherwise law-abiding people for doing things that are completely different as crimes. so like was announced at the beginning, i have a new book that just coming out called gun i-occupied france.
i'm thinking that is not the right title. it has to do that france had gun control -- i have copies of the posters as illustrations in my book. turning your guns in 24 hours, or we execute you. and in 1940 when france fell, the french police went to work for the german, the occupied force. so what better gun control skin could you have? you got the guns registered, you got the threat of the death penalty, and you got the records, and you got the same people who had the record before the occupation doing the bidding of the german army. book should have named the common sense gun safety in nazi -occupied france. [applause] thank you. i should have named it that.
that proved it. what turned out to be the case was that there were a lot of french people were executed for having gone. we went through newspapers of , and theytion period would announce the name of the person and say why he was executed. there were a lot of things they were shooting them for as well, but having a gun and not turning it in, that was a no no. ,ne thing about these posters about turning in your guns in 24 hours, none of them put like the the time the clock started ticking. i'm serious. the museum of the resistance in paris, everyone have to seen his plane. they don't when you start. but despite all that, there were a lot of french people who didn't register their guns to start with. how do you think they were able to former resistance when that started?
they buried their guns, they hid their guns, and they got them back and they were able at some point to start resistance activity. these are the kinds of history ,essons that we lose sight of the current reaction to these tragedies that they completely loose sight of, the fact that we have a second amendment for a reason. our founders put it in because of their experiences with the british. because the british tried to disarm the colonists, or to impose their otherwise oppressive measures of taxation and whatnot. we've seen in the 20th century so many tragedies where is uncontrolled schemes have led to horrible disasters, the result of which is one reason why we don't have registration of guns at the federal level because people saw what happened in nazi germany and in the soviet union.
topics is a controversial , you can pick any tragedy and pick it apart and talk about different things. parkland, florida, all the animosity in the media and otherwise has been against the nra. there was no demonstration at the steps of the fbi building. nobody was demonstrating at the sheriffs headquarters. nobody was talking about social that had notrtment committed this guy mentally, even of a recommended doing it, and no one's talking about the cop that stood out there while these kids were shot. thisy, i hope that historical background will come to light more and that people realize the second amendment is therefore reason, and you don't get rights back that you lose.
that, we gotth about 17 minutes or so left. while we open it up, and do you want to moderate this? [applause] >> for those who are interested, we still have three copies left, only three copies left of the book, gun control in the third reich. we're going to do this as expeditiously as possible. i find the best way to do it is by table. so we will start with this table here in the corner, if anyone here has a question. >> the things that you described , has caliber of the weapon ever
been an issue? has notd large, caliber been an issue, other than in california law, it has to be centerfire and cannot be rimfire. california doesn't ban firearms if they are 24 -- 22 rimfire, which is a very minor caliber. all the other states with assault weapon ban do ban them, nonetheless, even if it's 20 to ground fire, and the magazines that hold more than 10 rounds are banned as well. regardless of caliber. >> in new york state, the way that the government and the statutes circumvent the second amendment incorporation into the 14th amendment is by the presumption in our criminal law that the possession of a weapon by person who doesn't have a se a presumption of an intent to use unlawfully
against another. what is your opinion of the presumption and its usurpation of the second amendment by that method? >> is kind of a weird , there is aal right new york state decision and u.s. court of appeals in the second circuit, that says simply in new york it's a crime to possess a firearm. called a what is defense to that if you have the license. wayst think it is a shoddy to deal with the constitutional right. you wouldn't say you have to have a license to engage in free -- i mean maybe to do a demonstration in public and people also pretty much agree
it's legitimate for a state to require a license to carry a concealed weapon, but just to keep a gun at home and to require a license for that, you've got to get a license so they don't commit unreasonable searches and seizures or any other topic. is something that really demeans what a constitutional right is. >> i just been reading a little bit recently, the national review had peace about gun violence restraining orders and i'm sort of new to learning about these. i'm just curious your views on those. >> is already a crime under federal law and the laws of many states to possess a gun if you are under a restraining order in domestic case where you had an opportunity to be heard and an opportunity to have counsel
present. so you have due process invoked their, so that is considered fair. it's not considered fair if somebody can just go out and seizure guns and you have no opportunity to be heard in an emergency situation. so it depends on how they are drafted, i think. there are some newer laws that have to do with relatives bringing to the attention of law enforcement if a person seems to be a danger to self or others. i don't think there's anything wrong with that if you maintain due process with it, but you cannot just go out and do it and shoot them all and let god figure it out later, in terms of rights. so that is my response. here?one >> [indiscernible] >> in the latest local house
shooting, there was a situation where the person's weapons were taken from him because he was deemed a danger. those weapons were then turned over to his father who apparently gave those weapons back to him. do you have any thoughts about that? facts, it know all the firearms guy had a owner identification card, and it was taken from him because it must've been a mental problem and he was considered a danger. i think it is correct to let other people, relatives take the property of somebody who cannot possess it as long as they don't allow access to that person. where, what the was, whether his
father, when he transferred the gun back to him, that might have been a federal felony but i don't know exactly all the facts, so i cannot say for sure, but it's really something stupid to do, and something that in many contexts would be a federal. [indiscernible] to let youuick thing know why i'm here.
>> my name is alice, courtesy of the west, i live on under richard holbrook. member ofblican and nra, both things i'm nervous to say in harlem. in case my precinct is overwhelmed in a terror attack, i'm also asking for militia because i'm afraid of an active shooter. this free saying from the nra. to keep you warm at night beside your wife. thanks very much. and last but not least, my actual question, what happened
to haley barbour, my candidate for office? >> i don't know the answer to that. but thank you for your comments, and this whole idea of citizens militia, that is really what our country is founded on and it has to do with self-help, people looking out for each other, something and it's our country has really gone away emphasis is on, that's the job for law enforcement, but when seconds count, law enforcement is just minutes away. it's something that especially in crime-ridden communities that having law-abiding people there who are armed and not having them harassed by local laws, how many gun permits are given out in new york, in the city
especially, and all of favoritism and discrimination that exists. so thank you for your comments. >> thank you very much, professor holbrook, for all the work you do and for coming here to speak today. is, how much of the bad policy that is made, seven round magazine, the interview with the congresswoman misidentifying a telescoping stock and have flash suppressor is the result of ignorance on the part of a large part of our country and policymakers on the subject, and how much is the result of active desire to suppress the ability of law-abiding people to defend
themselves and potentially to defend against extremist meaningfulr government oppression overreach? >> that is a good question. i don't doubt the sincerity of whatever side of the issue people take. many people are very sincere, but i think there is definitely a deficit in knowledge about what we are talking about. there's ao thinks panacea for crime and violence to pass more laws that affect law-abiding people, they just don't get it. there are many sincere people who think that and they don't know about what they're talking, just to use another example similar to that, there was the colorado legislator who thought that magazines are extended when you shoot the gun. so all the magazines are eventually going to run out.
so you don't have to worry about if you can ban them and then you grandfather them, it's ok because they won't exist anymore after a while. on the other hand, throughout history, you've always had power elites who do not want people that can resist manipulation, and when you have this social engineering mentality in this country, and it's been around always, it goes back to ancient ruling andhave elite you have specialized bodies of toed police and military enforce their power because they know what's best for everybody else, and you disarm those at the bottom, the stupid workers, or do you have a policy or a republic where power is spread the ballot boxe and the jury box in the cartridge box. those are the powers and the people, they're not just rights
of the people, they are powers of the people. the fifth amendment refers to powers reserved to the states respectively or to the people. so people have powers as well as governmental bodies having powers. the second amendment is both the right and power. >> the sake act includes a number of ammunition provisions and i know part of them have not the districtand court said the claims were not constitutional. now it's been the law for a few years and we've seen a number of these provisions take place in california. do you think there's any future to ammunition challenges under the second amendment? >> there are challenges now that are pending. vermont justte of banned magazines that hold more than 10 if they are for a rifle. there's an interesting history
of ethan and who founded vermont . they hated new yorkers because new york was always trying to intrude upon them. and they carry guns everywhere they went. but now there's a challenge to that magazine ban that was just filed. in california, california has had a ban on magazines that hold more than 10 for a long time, but they grandfather those that were lawfully possessed before the laws were enacted. but they now have a new law that just went into effect. there are millions of these magazines in california. millions of been that hold more than 10 rounds. all of them are illegal now. i think january 1 was the date. but there was a district court judge who enjoined the enforcement of that law and its opinion in the ninth circuit, will probably be upheld. on the other hand, we have
millions of these magazines out there, and not one has been turned into law enforcement in the state of california. so what are you trying to do, just three people not respecting the law? withis what is happening these lost. there are ways to get in compliance with some of the law. weird york you got the stock that you can replace your pistol grip with and still have the same gun. or you can store it in her monitor some other adjoining state. but these laws are not improving anything. >> they for being here. sotomayor confirmation hearings, she was asked if the second amendment was applied to the states, and she answered pretty much she wasn't sure if the second amendment was incorporated into the states, is the word she used.
i thought once as they ratified the constitution it was under the constitution. i'm just wondering if there is it a matterabout is of incorporation to the states. >> by the way, i testified in her nomination hearing, and she had joined in some opinions that were very adverse to the second amendment when she was on the circuit. one of those upheld the prohibition in new york state on nunchucks, to sticks connected by court. in the hearings they were saying how great she was because she saved baseball, that there was some dispute, i don't remember the details, but so the games could be played, some dispute with management or unions, i don't know what.
so i started my testimony by recalling the incident where al capone used a baseball bat to take care of a couple of problems, but it's like, you are going to uphold a ban on these two little sticks connected by a court, but baseball is ok. but she did say she would , andct the heller decision i think that might've been before the mcdonald decision had been decided, saying that the second amendment was incorporated. i don't remember the exact year now, but future justices say things like i will respect that, but then they vote a certain way. [indiscernible] >> there were judicial decision saying that because the supreme court had never explicitly held that the second amendment does
apply to the states until mcdonald in 2010. so that was another thing the supreme court left unclear for a decade after decade, then it was finally resolved at that point. tonight. for coming i believe you had alluded to it , because i gun ban was a person who grew up going to school in the 1990's and i knew it was wrong about the well-regulated militia very. what would be the best defense to support that the well-regulated position is just a bunch of citizens to -- defending themselves and not the military. >> the historical evidence is clear that the original colonies and original independent states required all able-bodied males to be in the militia in certain age groups, and they required not partight, that was
of the army that could be raised, which was a separate -- severed part of the constitution. but every state had a militia clause, and you were required, if you were in infantry, militia, to have a long gun, or musket or fire lock. if you were on horseback, you were required to have a pair of pistols and saber. the muskets had to be equipped with a bayonet. so here you have the actual a realy implement, military feature and not only was it not banned, it was wired. so to say that some kind of military feature -- makes it manageable, it's completely the opposite of what the second amendment originally stood for. the only purpose of a bayonet is to kill as many people as quickly as possible.
if they are invading a country, or there is a domestic insurrection, but now we've got the u.s. court of appeals of the fourth circuit recently so-calleda maryland assault weapon ban same there's no real difference between semiautomatic, which requires a separate trigger pull for every shot, and full automatic machine guns which you hold the trigger down and it keeps firing. it's only a slight difference, the court said, to uphold the maryland band. onthere's a lot of switch --tual and legal statements there's always been quite a legal distinction between a full automatic and a gun that requires a separate pool to pull the trigger. it means the difference between the penitentiary and nothing, if you have an unregistered machine gun, that gets you 10 years. if her requires a separate pull of the trigger, in most states, it doesn't get you anything.
judges can say anything they want. and they say the most crazy things sometimes, factually and legally, to uphold these kinds of laws. >> i'm a libertarian candidate for attorney general. are you aware that there is still a federal statute defining the unorganized militia as all able-bodied males between 15 and 45 were are not in the organized militia or the military? how did or would that affect your arguments in court? >> you are correct, that's a federal law that still on the books. the militia act of 1792 set every able-bodied male has to provide their own guns. right. had the word after the civil war and after
the 14th amendment was adopted, work whiteght -- the was taken out so that anyone of any race or color was considered in the -- in the militia and had to provide their guns. but that faded away and by the early 20 century, it was no longer wired because it had never been enforced, at least for a long time, and then you had the enactment of the law that you just mentioned, i think in 1903 or so, that they still defined all able-bodied males as being part of the on organized or reserve militia, and that is still on the books today. back, myle of years then congresswoman, carolyn mccarthy who is a big fan of all things gun control appeared on tucker carlson and he interrogated her about banning a
barrel shroud. i think she thought it was a religious artifact. [laughter] itld you explain what makes barrel shroud so sinister, and a quick follow-up, what are the pros and cons on banning bump stocks? thoses another one of evil, mean, and we could think that make something so deadly that it should be banned. that's on the features list in new york state. asemiautomatic rifle has barrel's route. a barrel trout is nothing but a hand guard, it can be in many different forms, so that you don't burn your hand when you fire a shot, it creates heat. so if you fire more than one shot, it gets hotter and hotter. that is the case the matter what the action, it could be a bolt action and it would still get hot. why it could be a
traditional wood handle or something that goes all the way around the barrel. so that's another one of those things that it really doesn't hurt anybody, but why not put that on the list, if somebody who doesn't know anything about guns thought about it. i don't know of any record that , orne has ever misused several were in the las vegas attacks, and the question is whether they are considered machine guns. the atf in the past has gone different ways on different kinds of devices like that. the others are pending rulemaking to say they are machine guns. i would just say this about it, the atf cannot change the bumpnal law, so either stocks are machine guns or not.
if they don't that regulation saying that it is, that would be considered an advisory regulation about what atf interprets and in a criminal case, i don't think it would be proper to allow that to be stated because that is a legal conclusion about what a device is, and congress makes the law and defines what a machine gun is. so a jury instruction would be just state what congress has set in that definition. if there was a case of an unregistered machine gun. so we will see what happens with that issue. [applause] >> and a look at the memorial in washington dc, dedicated to american veterans disabled for life. this was dedicated back in 2014. one of the memorials we are visiting today that's a couple
of walks all the national mall on the house side of the u.s. capitol near the house office national, is the first memorial dedicated solely to disabled veterans, paying tribute to the visible and hidden disabilities all conflicts and all branches of service. we will take a look here at the american veterans disabled for life memorial for just a few moments.
>> president clinton signed legislation for the disabled veterans memorial in october 2000. it offers a foundation to establish a memorial to both living and deceased disabled veterans. one that we been visiting on this memorial day holiday. >> tonight, on the communicators, republican sec commissioner brendan carr discusses changes in regulating the internet slated for this summer. commissioner carr, june 11, what happened? >> june 11 is when the net neutrality rules are rolled back from the title to regime. on that date, contrary to some of the rhetoric that's out there , consumers are not going to see the end of the internet. we are simply going back to the
aim regime we had back in 2015 and for 20 years before that in which consumers were fully protected. i'm very excited about this transition, getting back to that tried-and-true framework that we for 20that regulation years. >> watch the communicators tonight at 8:00 eastern on c-span2. up, newsmakers, with jb poersch. he talks about the strategy for democrats heading into the 2018 midterm elections. today's memorial day celebration. and a look back at 100 years at the u.s. involvement in france with arthur war i edward l'engle. >> joining us on newsmakers, jb poersch and joining us with the