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COHEN: What’s your view of the Protection of Lawful Commerce in Arms Act, the Bush-era federal law that offers a special shield to gun manufacturers to protect them from liability for the damage caused by gun violence? Would a legislative repeal of it violate the Second Amendment? And do you get a sense from recent litigation against gun manufacturers — I am thinking of the Sandy Hook case, for example — that this avenue might represent the best chance now to reduce gun violence by holding gunmakers accountable for some of it?
MILLER: I do not think a legislative repeal of PLCAA would violate the Second Amendment. I do think the Second Amendment presumes that there will be some kind of commercial market in weapons, but nothing about the Second Amendment says that market must be unregulated. Indeed, in District of Columbia v. Heller, the Court itself said “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” Right now, under PLCAA, firearms are among a handful of commercial products that are essentially immunized from tort rules that could force manufacturers and distributors to make them safer and less prone to misuse.
It’s possible that, if PLCAA were repealed, the Court would hold — as it has in the First Amendment context with defamation of public figures — that the Second Amendment sets the lower boundary for tort rules involving weapons. It’s possible, but that would give Second Amendment rights a kind of preeminence claimed by few other constitutional guarantees. The Sandy Hook case provides a very small crack to penetrate the PLCAA immunity shield, and perhaps that will be enough to make gun manufacturers change their sales practices. However, I’m not certain that it will provide the full set of incentives — already present with other kinds of commercial products: from batteries, to cars, to prescription medication — to make a potentially beneficial product less prone to misuse.
COHEN: Five years after he retired, former Supreme Court Chief Justice Warren Burger, a Nixon appointee, said the idea that there was a personal right to bear arms embedded in the Second Amendment was a fraud. The Second Amendment, he told an interviewer in 1991, “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” That was 31 years ago. Since then, a conservative Supreme Court has ruled there is such an individual right to bear arms, a ruling that has spawned rollbacks of gun regulations across the country. To a lot of people, Burger’s comments are a sort of Rorschach test about the Second Amendment in general and gun regulation in particular. Where do you stand on it?
MILLER: This is not a simple question. To call the personal right interpretation of the Second Amendment a “fraud” presumes a certain kind of originalist constitutional methodology. It presumes that the Second Amendment means what the Founders intended or, alternatively, what the Founding generation understood the words to mean around 1791. Few, if any, of the Founders are talking about firearms for personal self-defense against criminals during the time the Second Amendment was ratified — the debate was focused on fear of a standing army and how to organize the militia. Recent research by linguists, using big data sets of 18th-century documents unavailable when the Court decided District of Columbia v. Heller, has pretty convincingly shown that the term “bear arms” was overwhelmingly used in a collective or military sense and almost never used in the modern sense of “carry weapons.”
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