WEBVTT - The Invention of an Epidemic 0:00:16.000 --> 0:00:16.420 Pushkin. 0:00:22.780 --> 0:00:26.180 Hello, hello, everyone. It's Malcolm Gladwell. I'm here today to 0:00:26.220 --> 0:00:30.080 bring you something special. A chapter from my new book, 0:00:30.900 --> 0:00:33.920 The American Way of Killing, The Invention of an Epidemic. 0:00:34.300 --> 0:00:38.419 It's chapter two, called The Slave Owner's Lament. And it is, 0:00:38.800 --> 0:00:40.699 to use a word we love here at Revisionist History, 0:00:41.220 --> 0:00:46.200 the absolutely bananas story behind a Second Amendment to the U.S. Constitution, 0:00:46.740 --> 0:00:51.229 the Gun Rights Amendment, with guest appearances by 18th century Virginians, 0:00:51.570 --> 0:00:55.970 a brilliant Australian linguist, the delightfully named historian Carl Bogus, 0:00:56.470 --> 0:00:59.950 a lot of cranky Supreme Court justices, and most of all, 0:01:00.330 --> 0:01:05.670 a charismatic African slave named Jemmy. I am pleased to 0:01:05.710 --> 0:01:08.800 announce the publication of my new book, The American Way 0:01:08.840 --> 0:01:12.990 of Killing, The Invention of an Epidemic. Four episodes in 0:01:13.090 --> 0:01:16.650 all on maybe one of the most complicated and perplexing 0:01:16.669 --> 0:01:20.229 of American social issues. My new book is coming out 0:01:20.270 --> 0:01:23.150 September 29th. You can find all of my book tour 0:01:23.180 --> 0:01:26.920 dates on my website, global.com. Come and see me. And 0:01:26.940 --> 0:01:28.500 if you're in the New York area, I'll be at 0:01:28.539 --> 0:01:31.880 the 92nd Street Y in conversation with Katie Tour of 0:01:31.979 --> 0:01:36.120 NBC News on the evening of September 29th, which should 0:01:36.139 --> 0:01:41.270 be really fun. Doing this book opened my eyes. and 0:01:41.310 --> 0:01:44.240 I hope it will do the same for you. You 0:01:44.259 --> 0:01:47.039 can get The American Way of Killing at whatever bookstore 0:01:47.080 --> 0:01:51.420 you frequent or online platform you like. And you can 0:01:51.540 --> 0:01:57.460 find the audiobook version at pushkin.fm slash audiobooks or wherever 0:01:57.520 --> 0:01:58.320 you get audiobooks. 0:02:05.790 --> 0:02:12.870 I won't close my eyes and forget my sorrows I 0:02:12.889 --> 0:02:21.540 don't care if the devil takes tomorrow. Ashes to ashes 0:02:21.560 --> 0:02:28.360 if I must. I won't leave all my troubles. 0:02:27.890 --> 0:02:38.350 Dust to dust. Chapter 2. The Slave Owner's Lament In 0:02:38.390 --> 0:02:41.780 the early years of the 18th century, In the long 0:02:41.880 --> 0:02:45.700 stretches of marshland known as the South Carolina Low Country, 0:02:46.260 --> 0:02:48.980 the local authorities decided they needed to dig a network 0:02:49.020 --> 0:02:54.000 of canals leading off the Stono River. The Stono is 0:02:54.040 --> 0:02:58.060 a tidal channel just south and west of Charleston, snaking 0:02:58.100 --> 0:03:02.400 its way between Johns Island and James Island. In the spring, 0:03:02.960 --> 0:03:06.720 its banks would overflow, flooding roads and homes and farmland, 0:03:07.120 --> 0:03:09.890 and the idea was to build the equivalent of storm 0:03:09.960 --> 0:03:13.620 sewers off the river. They were six feet deep and 0:03:13.620 --> 0:03:17.560 15 to 20 feet wide, so substantial that many are 0:03:17.600 --> 0:03:20.640 still there today. Digging them out of the heavy mud 0:03:21.160 --> 0:03:26.970 was a massive undertaking. The historian Peter Charles Hoffer writes, quote, 0:03:27.310 --> 0:03:30.670 bending over shovels and mattocks in the snake and insect 0:03:30.810 --> 0:03:34.790 infected waters, the diggers were exposed to the elements, disease 0:03:35.230 --> 0:03:39.260 and exhaustion. He went on, the summer heat would create 0:03:39.400 --> 0:03:43.150 terrible thirst. But the brackish water at the diggers' feet 0:03:43.470 --> 0:03:49.370 was filled with deadly bacteria, parasites, and waste. This was 0:03:49.450 --> 0:03:52.430 not a task the white colonists of South Carolina would 0:03:52.490 --> 0:03:55.690 ever dream of doing themselves. It was a job for 0:03:55.710 --> 0:04:02.200 their slaves. Imagine a group of two dozen or so bondsmen, 0:04:02.580 --> 0:04:06.660 as slaves were often euphemistically called, digging ditches off the 0:04:06.700 --> 0:04:12.270 Stono River. It's early September, 1739. The profits from rice 0:04:12.300 --> 0:04:15.950 cultivation in that part of South Carolina were so large 0:04:16.409 --> 0:04:19.010 that it was often cheaper for plantation owners to work 0:04:19.029 --> 0:04:22.250 their slaves to death and buy replacements than to try 0:04:22.290 --> 0:04:27.010 and keep their existing slaves alive. So these are men 0:04:27.130 --> 0:04:29.430 fresh off the boat from Angola and what was then 0:04:29.470 --> 0:04:34.590 called Congo with a K. It was a Saturday. They 0:04:34.630 --> 0:04:36.850 had been out in the hot sun all day and 0:04:36.930 --> 0:04:39.530 faced the prospect of having to do the same thing 0:04:39.570 --> 0:04:43.330 the following day, because ditch digging was considered so urgent 0:04:43.750 --> 0:04:47.830 that the normal Sunday day of rest was suspended. They 0:04:47.870 --> 0:04:52.480 were exhausted. Their white overseer had left early. They were 0:04:52.520 --> 0:04:55.500 on their own. Across the river from where they were 0:04:55.540 --> 0:04:59.520 working was a general store called Hutchinson's. At the end 0:04:59.560 --> 0:05:02.990 of the workday, they crossed over the river and made 0:05:03.050 --> 0:05:08.040 their way to the store for food and refreshment. No 0:05:08.080 --> 0:05:10.860 one knows exactly when and why this ragged band of 0:05:10.920 --> 0:05:16.659 slaves changed course. But between the ditches and Hutchinson's, exhaustion 0:05:16.720 --> 0:05:20.600 turned to anger. One of the group, Jemmy, emerged as 0:05:20.640 --> 0:05:24.540 the leader. The store was closed. They broke in. They 0:05:24.580 --> 0:05:28.200 found two men inside. They killed them both. Someone would 0:05:28.240 --> 0:05:31.349 later allege that the rebels cut off their victims' heads 0:05:31.890 --> 0:05:35.350 and impaled them on a stake outside. They looted the store, 0:05:35.690 --> 0:05:39.770 taking rifles and ammunition and alcohol with them. They started 0:05:39.830 --> 0:05:43.930 off marching down the road, beating drums and crying, Liberty! 0:05:44.890 --> 0:05:47.210 Other slaves joined them. It was now the middle of 0:05:47.250 --> 0:05:50.010 the night. When they saw the houses of slave owners, 0:05:50.370 --> 0:05:53.430 they made a decision. Is this someone who treats us 0:05:53.530 --> 0:05:57.349 with even a modicum of kindness? If so, they skipped 0:05:57.370 --> 0:06:00.800 the house. If not, they burned the house down and 0:06:00.830 --> 0:06:06.660 killed everyone inside. One contemporary account reads, They marched on 0:06:06.720 --> 0:06:11.159 with colors displayed and two drums beating, pursuing all the 0:06:11.200 --> 0:06:14.840 white people they met with and killing man, woman, and 0:06:14.940 --> 0:06:18.469 child when they could come up to them. End of quote. 0:06:19.490 --> 0:06:22.710 By morning, they were more than a hundred strong and 0:06:22.830 --> 0:06:27.130 miles from the Stono River. Since it was Sunday, most 0:06:27.170 --> 0:06:29.490 of the white population of the Lowcountry was in church, 0:06:30.030 --> 0:06:34.140 so Jemmy's band marched on without incident. Finally, they were 0:06:34.200 --> 0:06:39.120 spotted by South Carolina's lieutenant governor, William Bull. Bull had 0:06:39.140 --> 0:06:43.430 been sounding the alarm for some time that South Carolina's slaves, quote, 0:06:43.820 --> 0:06:46.990 which were the state's chief support, may in little time 0:06:47.030 --> 0:06:50.690 become their enemies, if not their masters, and that this 0:06:50.750 --> 0:06:54.410 government is unable to withstand or prevent it, end of quote. 0:06:56.010 --> 0:07:00.170 One of his companions raced to a nearby church, Willtown Presbyterian. 0:07:00.610 --> 0:07:03.750 He rounded up as many men as he could, News spread. 0:07:04.310 --> 0:07:07.430 Other men grabbed their guns and joined. The rebels were 0:07:07.470 --> 0:07:12.370 resting on Ponds Ponds Road near Jacksonboro. The two sides clashed, 0:07:12.970 --> 0:07:16.400 and in a fierce and bloody encounter, the rebels were defeated. 0:07:24.300 --> 0:07:26.640 If you were a slave owner in the South, you 0:07:26.720 --> 0:07:30.070 knew about the Stono Rebellion, especially if you lived in 0:07:30.150 --> 0:07:34.650 South Carolina or Virginia. You read about it in the newspaper. 0:07:35.310 --> 0:07:38.180 Or someone who was there wrote you about it or 0:07:38.300 --> 0:07:41.580 told you about it at church. Every white planter knew 0:07:41.640 --> 0:07:44.940 that a day of reckoning was coming. In Barbados, where 0:07:44.980 --> 0:07:47.820 many of the founding fathers of the South Carolina colony 0:07:47.880 --> 0:07:51.760 came from, the British could barely keep their slaves under control. 0:07:52.730 --> 0:07:56.310 Uprisings were a constant worry on the slave ships coming 0:07:56.350 --> 0:08:01.000 from Africa. Slaves ran away. They fought back. They engaged 0:08:01.100 --> 0:08:04.980 in frequent acts of disobedience and resistance. You could whip 0:08:05.040 --> 0:08:09.280 your slaves into submission, starve them, punish them, or simply 0:08:09.460 --> 0:08:12.540 sell the troublemakers to someone else. But at the end 0:08:12.580 --> 0:08:15.000 of the day, you had to live with the reality 0:08:15.340 --> 0:08:17.260 that it was only a matter of time before the 0:08:17.320 --> 0:08:22.570 cauldron bubbled over. At the Monticello plantation in Virginia, where 0:08:22.610 --> 0:08:25.830 Thomas Jefferson lived with his immediate family, there were as 0:08:25.890 --> 0:08:30.070 many as 140 slaves at any given moment, and only 0:08:30.130 --> 0:08:35.920 a few white overseers. In South Carolina, slaves composed over 70% 0:08:35.920 --> 0:08:38.860 of the total population of the colony. And if you 0:08:38.920 --> 0:08:41.699 ventured out as far as the Stono River, the ratio 0:08:41.760 --> 0:08:45.439 of black to white on plantations reached 10 to 1, 0:08:45.439 --> 0:08:49.219 or even 15 to 1. If you had to ride 0:08:49.239 --> 0:08:52.040 to town on business, or go to the state capitol 0:08:52.099 --> 0:08:55.010 for a few days, leaving your wife and children at home, 0:08:55.550 --> 0:09:00.189 could you feel safe? Thomas Jefferson said, would famously describe 0:09:00.229 --> 0:09:03.729 the practice of slavery as grabbing a wolf by the ears. 0:09:04.809 --> 0:09:08.800 It was too dangerous to continue, but too dangerous to stop. 0:09:09.979 --> 0:09:13.279 And then comes the Stoner Rebellion, and that pit in 0:09:13.319 --> 0:09:19.059 your stomach becomes a molten mass. What was behind Jemmy's insurrection? 0:09:19.739 --> 0:09:22.979 They were headed south, which suggests that perhaps they were 0:09:23.010 --> 0:09:26.969 trying to reach Florida, then under Spanish control, where escaped 0:09:27.189 --> 0:09:30.519 slaves could find safe haven. But if that were the case, 0:09:31.339 --> 0:09:34.359 why did the slaves go on such a rampage? A 0:09:34.400 --> 0:09:37.869 more plausible explanation, and to the slave owners of the South, 0:09:38.489 --> 0:09:41.750 the more terrifying one, is that Jemmy and his followers 0:09:42.650 --> 0:09:45.470 were just out for blood. This is how the law 0:09:45.510 --> 0:09:48.010 professor Carl Bogus described it to me. 0:09:48.670 --> 0:09:51.889 They beat drums and made noise and cried out liberty 0:09:51.949 --> 0:09:55.319 and flew flags and asked people to join them. I 0:09:55.359 --> 0:09:57.920 think clearly their objective, we're just going to kill as 0:09:57.959 --> 0:09:59.869 many of you as possible. Of course, there was a 0:09:59.890 --> 0:10:00.670 lot of rage. 0:10:02.089 --> 0:10:04.999 This chapter is about the Second Amendment to the United 0:10:05.059 --> 0:10:09.289 States Constitution. The sentence that squats at the very center 0:10:10.040 --> 0:10:13.140 of every discussion of the place of guns in American society. 0:10:14.020 --> 0:10:18.000 It's about how the conversation around the Second Amendment is 0:10:18.239 --> 0:10:21.699 every bit as dishonest as the conversation around assault rifles. 0:10:22.670 --> 0:10:25.730 And why is it dishonest? Because it pretends that we 0:10:25.750 --> 0:10:27.769 can talk about the meaning of the Second Amendment in 0:10:27.790 --> 0:10:30.530 a without regard to the motivations of the men who 0:10:30.579 --> 0:10:35.210 conceived of it back in the 18th century. As historian 0:10:35.270 --> 0:10:39.490 Peter Charles Hoffer has written, The master portrayed himself as 0:10:39.530 --> 0:10:43.049 the good father, the head of an extended household, in 0:10:43.089 --> 0:10:48.270 which slaves were childlike laborers, women were submissive helpmeets, and 0:10:48.370 --> 0:10:52.109 servants were obedient and loyal. Masters could put on a 0:10:52.150 --> 0:10:56.029 stern face, like the biblical patriarchs, or act the loving 0:10:56.449 --> 0:11:00.939 and affectionate father. Hoffer is speaking of the psychology of 0:11:00.959 --> 0:11:03.839 the white men who grabbed their guns that Sunday morning 0:11:04.339 --> 0:11:08.059 and rode off to confront Jemmy's band. But it was 0:11:08.120 --> 0:11:12.709 all an act. He goes on. However he handled sentiment 0:11:13.250 --> 0:11:23.699 and authority, the planter was an anxious man. The only 0:11:23.770 --> 0:11:26.710 major country in the world other than the United States 0:11:27.089 --> 0:11:30.090 to give its citizens the constitutional right to bear arms 0:11:30.709 --> 0:11:36.150 is Mexico. Article 10 of the Mexican Constitution reads, The 0:11:36.309 --> 0:11:39.890 inhabitants of the United Mexican States have the right to 0:11:39.929 --> 0:11:43.729 keep arms at home for their protection and legitimate defense, 0:11:45.050 --> 0:11:48.009 with the exception of those prohibited by the federal law 0:11:48.530 --> 0:11:52.709 and those reserved for the exclusive use of the Army, Navy, 0:11:53.209 --> 0:11:58.629 Air Force and National Guard. Federal law will state the cases, conditions, 0:11:59.130 --> 0:12:04.630 requirements and places where inhabitants can be authorized to carry weapons. 0:12:05.729 --> 0:12:09.410 Those two sentences that make up Article 10 were written 0:12:09.510 --> 0:12:13.689 in 1917, firmly in the modern era. You may or 0:12:13.709 --> 0:12:16.729 may not agree with its intent, but there is no 0:12:16.890 --> 0:12:22.110 uncertainty about what it means. It says, plainly, that the 0:12:22.189 --> 0:12:26.529 Mexican government cannot take guns away from its citizens. At 0:12:26.550 --> 0:12:30.550 the same time, though, it gives Mexico's lawmakers a very 0:12:30.689 --> 0:12:34.569 clear set of instructions about how they can limit that right. 0:12:35.569 --> 0:12:41.949 The government can define the, quote, cases, conditions, requirements, and places, 0:12:42.209 --> 0:12:46.829 end quote, where guns are and are not allowed. Mexico 0:12:47.130 --> 0:12:50.030 has had its own very serious problems with lethal violence 0:12:50.170 --> 0:12:53.920 in recent years. But none of Mexico's problems with controlling 0:12:53.959 --> 0:12:58.420 guns are caused by any ambiguities in the country's constitution. 0:12:59.410 --> 0:13:05.150 Article 10 is crystal clear. By contrast, the Second Amendment 0:13:05.170 --> 0:13:10.470 to the United States Constitution, America's equivalent to Article 10, 0:13:10.469 --> 0:13:15.790 is a puzzle. A well-regulated militia being necessary to the 0:13:15.870 --> 0:13:19.130 security of a free state, the right of the people 0:13:19.469 --> 0:13:24.439 to keep and bear arms, shall not be infringed. That 0:13:24.599 --> 0:13:28.319 sentence was written in the late 18th century, an era 0:13:28.359 --> 0:13:31.480 closer to Shakespeare's time than our own, and no one 0:13:31.500 --> 0:13:34.479 would write a sentence like that today. It starts with 0:13:34.530 --> 0:13:38.329 what some linguists call an initial being clause, which is 0:13:38.370 --> 0:13:42.329 a thought that precedes the main body of the sentence. So, quote, 0:13:43.089 --> 0:13:46.969 a well-regulated militia being necessary to the security of a 0:13:47.069 --> 0:13:52.350 free state, comma. Then, after that comma, is what's known 0:13:52.489 --> 0:13:57.010 as the operative clause. Quote, The right of the people 0:13:57.089 --> 0:14:01.069 to keep and bear arms shall not be infringed. End 0:14:01.089 --> 0:14:06.859 of quote. We don't use initial being clauses much anymore. Moreover, 0:14:07.120 --> 0:14:09.760 we would almost never use a being clause next to 0:14:09.800 --> 0:14:13.600 an operative clause where the two clauses have different subjects. 0:14:14.699 --> 0:14:18.099 That last quirk is what makes the Second Amendment so 0:14:18.300 --> 0:14:22.670 awkward to our ears. we keep expecting that militia, the 0:14:22.710 --> 0:14:25.660 subject of the initial clause, is also going to be 0:14:25.680 --> 0:14:30.200 the subject of the main clause. And to our grammatical bewilderment, 0:14:30.560 --> 0:14:34.220 it isn't. The first half of the Second Amendment is 0:14:34.359 --> 0:14:37.410 perched on the second half like a top hat on 0:14:37.450 --> 0:14:42.110 an elephant. So, what does it mean? What is the 0:14:42.150 --> 0:14:46.690 relationship between those two clauses? Does the early reference to 0:14:46.729 --> 0:14:49.800 a militia mean that the right of the people to 0:14:49.840 --> 0:14:53.040 keep and bear arms applies strictly in the context of 0:14:53.100 --> 0:14:57.180 military service? Or is the reason that the first half 0:14:57.460 --> 0:15:01.020 has as its subject militia and the second half has 0:15:01.260 --> 0:15:05.029 as its subject right that we're supposed to think of 0:15:05.050 --> 0:15:09.030 them as separate thoughts, with the initial being clause acting 0:15:09.170 --> 0:15:15.109 as a kind of throat clearing? Militias are necessary. Also, 0:15:15.790 --> 0:15:21.100 owning guns is a right. For years, this was an 0:15:21.180 --> 0:15:24.960 open question. It was the kind of thing that bookish 0:15:25.080 --> 0:15:29.640 legal scholars or gun enthusiasts might argue over. But the 0:15:29.680 --> 0:15:33.100 meaning of the Second Amendment wasn't something the Supreme Court 0:15:33.320 --> 0:15:37.710 spent much time thinking about. In its entire history, through 0:15:37.729 --> 0:15:41.070 the early years of the 21st century, only a handful 0:15:41.410 --> 0:15:44.250 of Second Amendment cases had ever come before the court. 0:15:45.310 --> 0:15:49.380 And they concerned narrow and tangential issues that like whether 0:15:49.420 --> 0:15:53.020 Americans had the right to carry a sawed-off shotgun in public. 0:15:54.180 --> 0:15:57.290 The First Amendment, which guarantees the right to free speech, 0:15:57.729 --> 0:16:01.650 or the 14th Amendment, which grants all Americans equal protection 0:16:01.890 --> 0:16:05.450 under the law, raised the kinds of questions that commanded 0:16:05.470 --> 0:16:09.830 the Supreme Court's time. The Second Amendment was an afterthought. 0:16:11.790 --> 0:16:15.700 All of that changed, however, when in 2008, the Supreme 0:16:15.780 --> 0:16:19.960 Court agreed to hear a case called District of Columbia v. Heller. 0:16:21.180 --> 0:16:25.460 It involved a police officer in Washington, D.C. named Dick Heller, 0:16:26.140 --> 0:16:28.220 who thought he should be able to keep his handgun 0:16:28.260 --> 0:16:30.680 at home, just as he was able to keep a 0:16:30.720 --> 0:16:35.350 handgun on him while he was on duty. Under D.C. law, however, 0:16:35.729 --> 0:16:40.750 personal handgun ownership was forbidden. Denied a gun, Heller sued, 0:16:41.410 --> 0:16:44.760 saying that D.C. 's law violated the Second Amendment and 0:16:44.800 --> 0:16:47.340 the case rose all the way to the Supreme Court. 0:16:48.140 --> 0:16:51.000 Of course, if the United States had a version of 0:16:51.100 --> 0:16:56.190 Mexico's Article 10 in its constitution, deciding District of Columbia v. 0:16:56.229 --> 0:17:00.749 Heller would have been straightforward. Was the district's law permissible 0:17:01.330 --> 0:17:06.909 under the authority given to the government to limit the cases, conditions, requirements, 0:17:07.330 --> 0:17:12.350 and places where guns are allowed? Plainly, it was. But 0:17:12.390 --> 0:17:16.510 the Second Amendment is not Mexico's Article 10. It is 0:17:16.650 --> 0:17:20.590 an initial being clause attached awkwardly to an operative clause 0:17:20.990 --> 0:17:24.190 like a top hat on an elephant. And in order 0:17:24.230 --> 0:17:28.100 to figure out whether Heller's Second Amendment rights were violated, 0:17:28.440 --> 0:17:31.440 the court first had to figure out what the Second 0:17:31.480 --> 0:17:35.780 Amendment meant. In other words, before they could be jurists, 0:17:36.360 --> 0:17:42.220 the Supreme Court justices had to be grammarians. So it 0:17:42.260 --> 0:17:47.359 was that on Tuesday, March 18, 2008, the U.S. Supreme 0:17:47.420 --> 0:17:51.960 Court assembled to hear this most consequential of cases. Imagine 0:17:51.980 --> 0:17:55.940 the scene. The justices are seated in a row behind 0:17:55.980 --> 0:17:59.590 a long, curved mahogany table in the court's central chamber, 0:18:00.310 --> 0:18:06.010 an imposing room in the grand neoclassical revival style. 44-foot ceilings, 0:18:06.010 --> 0:18:13.920 24 ionic columns in marble, shipped from Liguria, Italy. Supreme 0:18:13.960 --> 0:18:18.010 Court case's begin with oral arguments, when the judges hear 0:18:18.050 --> 0:18:21.910 lawyers from both sides advocate for their clients. And here 0:18:21.990 --> 0:18:25.629 is how the proceedings that day begin. The lawyer for 0:18:25.650 --> 0:18:29.180 the District of Columbia, Walter Dellinger, goes first. 0:18:29.680 --> 0:18:33.780 The Second Amendment was a direct response to concern over 0:18:34.740 --> 0:18:37.600 Article I, Section 8 of the Constitution, which gave the 0:18:37.640 --> 0:18:43.619 new National Congress the surprising, perhaps even the shocking power 0:18:43.680 --> 0:18:48.380 to organize, arm, and presumably disarm the state militias. 0:18:49.160 --> 0:18:52.440 To Dellinger, it was clear that the people drafting the 0:18:52.480 --> 0:18:56.620 Second Amendment were thinking about militias. That's why they put 0:18:56.660 --> 0:19:00.940 the Being Clause, a well-regulated militia being necessary to the 0:19:01.000 --> 0:19:04.420 security of a free state, at the beginning of the sentence, 0:19:05.160 --> 0:19:07.920 framing our understanding of the Operative Clause. 0:19:08.640 --> 0:19:13.190 The Amendment's first clause confirms... that the right is militia-related. 0:19:13.870 --> 0:19:16.370 The Second Amendment is about the right to bear arms 0:19:16.910 --> 0:19:21.420 in the context of military service. The D.C. ban on handguns, then, 0:19:22.000 --> 0:19:27.280 is perfectly appropriate. Immediately, the Chief Justice of the United States, 0:19:27.720 --> 0:19:29.300 John Roberts, interrupts. 0:19:30.660 --> 0:19:31.540 If you're right, Mr. 0:19:31.580 --> 0:19:35.880 Dellinger, it's certainly an odd way in the Second Amendment 0:19:36.340 --> 0:19:39.119 to phrase the operative provision if it is limited to 0:19:39.160 --> 0:19:42.129 state militia's Why would they say the right of the people? 0:19:43.870 --> 0:19:46.370 In other words, why wouldn't they say state militias have 0:19:46.410 --> 0:19:47.450 the right to keep arms? 0:19:48.940 --> 0:19:51.980 The Chief Justice is saying that if the initial being 0:19:52.020 --> 0:19:55.220 clause and the operative clause were intended to be read 0:19:55.360 --> 0:19:58.810 as one seamless thought, they would have the same subject. 0:20:00.090 --> 0:20:01.710 Dellinger shakes his head. 0:20:02.270 --> 0:20:02.530 Mr. 0:20:02.550 --> 0:20:06.040 Chief Justice, I believe that the phrase the people and 0:20:06.090 --> 0:20:10.340 the phrase the militia were really in sync with each other. 0:20:11.180 --> 0:20:16.380 You will see references in the debates of the Federalist 0:20:16.400 --> 0:20:19.830 farmer uses the phrase the people are the militia The 0:20:19.870 --> 0:20:21.590 militia are the people. 0:20:22.830 --> 0:20:26.720 It may look like two clauses with different subjects, but 0:20:26.760 --> 0:20:30.200 it should be read as two clauses with synonymous subjects. 0:20:31.000 --> 0:20:34.900 Got that? The oral argument is only a minute old, 0:20:35.420 --> 0:20:38.730 and the Supreme Court has turned into the equivalent of 0:20:38.770 --> 0:20:43.130 a fifth-grade classroom, with the students at the blackboard puzzling 0:20:43.250 --> 0:20:49.150 over how to parse a sentence. It's Justice Anthony Kennedy's turn. 0:20:50.010 --> 0:20:53.150 It seems to me that there is an interpretation of 0:20:53.190 --> 0:20:57.889 the Second Amendment that conforms the two clauses and, in effect, 0:20:57.960 --> 0:21:01.760 delinks them. The first clause, I submit, can be read 0:21:01.840 --> 0:21:06.340 consistently with the purpose of simply reaffirming the existence and 0:21:06.380 --> 0:21:10.100 the importance of the militia clauses. And so, in effect, 0:21:10.140 --> 0:21:14.639 the amendment says we reaffirm the right to have a militia. 0:21:14.680 --> 0:21:17.860 We've established it. But in addition, there is a right 0:21:17.920 --> 0:21:18.560 to bear arms. 0:21:19.690 --> 0:21:24.650 The being clause, Kennedy is saying, can be delinked from 0:21:24.690 --> 0:21:28.330 the operative clause. Kennedy is one of those people who 0:21:28.370 --> 0:21:31.530 see the first clause about a well-regulated militia as an 0:21:31.550 --> 0:21:34.149 hors d'oeuvre that has nothing to do with the entree. 0:21:34.940 --> 0:21:37.600 And the entree in his reading is all that matters. 0:21:38.260 --> 0:21:40.400 The right of the people to keep and bear arms 0:21:40.620 --> 0:21:45.500 shall not be infringed. The Second Amendment guarantees that everyone 0:21:45.660 --> 0:21:48.160 in the U.S. has the right to own and carry 0:21:48.200 --> 0:21:54.620 a gun. D.C. 's law is unconstitutional. Dellinger replies, no, no, no, 0:21:54.900 --> 0:21:57.800 that makes no sense. That's not how being clauses work. 0:21:58.280 --> 0:22:01.280 The function of a being clause is to clarify the 0:22:01.300 --> 0:22:04.700 meaning of the rest of the sentence, to contextualize the 0:22:04.780 --> 0:22:09.400 operative clause. Otherwise, why would the framers of the Constitution 0:22:09.840 --> 0:22:10.790 have put it there at all? 0:22:11.400 --> 0:22:15.250 What you see is a clause that that literally transposes 0:22:15.270 --> 0:22:19.220 to this because a well-regulated militia is necessary to the 0:22:19.240 --> 0:22:21.580 security of a free state, the right of the people 0:22:21.600 --> 0:22:26.100 to keep and bear arms shall not be... The. 0:22:25.840 --> 0:22:31.900 Back and forth continues. Justice Antonin Scalia chimes in. No, no, no. 0:22:32.100 --> 0:22:38.100 I don't see how there's any contradiction between reading the 0:22:38.160 --> 0:22:42.710 second clause as a personal guarantee... and reading the first 0:22:42.810 --> 0:22:46.840 one as assuring the existence of a militia. The two 0:22:46.880 --> 0:22:50.020 clauses go together beautifully. Since we need a militia, the 0:22:50.060 --> 0:22:51.800 right of the people to keep and bear arms shall 0:22:51.840 --> 0:22:52.560 not be infringed. 0:22:53.160 --> 0:22:54.740 Dellinger tries to counter. 0:22:55.360 --> 0:22:58.680 Yes, but once you assume that the clause is designed 0:22:58.700 --> 0:23:03.810 to protect the militia, surely it's the militia that decides 0:23:03.890 --> 0:23:06.590 whether personal possession. 0:23:07.710 --> 0:23:20.040 Kennedy jumps in again. The exercise began with one student 0:23:20.120 --> 0:23:23.320 at the blackboard with a piece of chalk, diagramming the sentence. 0:23:23.840 --> 0:23:27.300 But now the whole class is involved, everyone jostling for 0:23:27.340 --> 0:23:30.220 space at the front of the room while they furiously 0:23:30.340 --> 0:23:34.109 add their own notations. Asked to weigh in on one 0:23:34.130 --> 0:23:36.890 of the most serious of all social issues facing the 0:23:36.970 --> 0:23:41.540 United States, the Supreme Court has instead become hung up 0:23:42.240 --> 0:23:45.159 on the grammatical structure of a sentence drafted more than 0:23:45.160 --> 0:23:49.680 200 years before, written in a style of English that 0:23:49.760 --> 0:23:57.360 no longer exists. The fight over assault rifles is a 0:23:57.400 --> 0:24:01.180 dishonest conversation because it pretends to address a real issue, 0:24:01.850 --> 0:24:04.750 when in fact every assault rifle ban devotes more pages 0:24:05.290 --> 0:24:08.450 to the high-powered rifles exempt from the ban than the 0:24:08.490 --> 0:24:13.290 ban itself. But the Second Amendment conversation is equally dishonest. 0:24:13.990 --> 0:24:17.450 Because you can't debate 18th century grammar if all you 0:24:17.470 --> 0:24:20.800 know is 21st century grammar. And you can't understand the 0:24:20.830 --> 0:24:24.420 meaning of an 18th century sentence unless you know something 0:24:24.440 --> 0:24:29.400 about the person who wrote that sentence. So let's start 0:24:29.440 --> 0:24:33.930 again and try and imagine what an honest conversation about 0:24:33.970 --> 0:24:39.150 the Second Amendment looks like. The Second Amendment was written 0:24:39.190 --> 0:24:43.220 by James Madison, maybe the most intellectually distinguished of the 0:24:43.260 --> 0:24:47.740 Founding Fathers. Madison once wrote, The use of words is 0:24:47.800 --> 0:24:53.340 to express ideas. Purpicuity, therefore, requires not only that the 0:24:53.500 --> 0:24:57.070 ideas should be distinctly formed, but that they should be 0:24:57.150 --> 0:25:02.280 expressed by words distinctly and exclusively appropriate to them. end 0:25:02.300 --> 0:25:06.300 of quote. Madison was known for carefully reading the writings 0:25:06.360 --> 0:25:10.100 of his contemporaries and removing a phrase or editing a 0:25:10.160 --> 0:25:14.670 passage that he didn't think was quite right. He was precise, 0:25:14.930 --> 0:25:20.470 almost persnickety about language. As the literary critic Lewis Shadler 0:25:20.490 --> 0:25:24.550 wrote once in an analysis of Madison's prose, quote, the 0:25:24.590 --> 0:25:29.250 importance of having proper words in proper places was always 0:25:29.290 --> 0:25:33.150 strong in his mind, end quote. In his work on 0:25:33.170 --> 0:25:38.270 the single most important intellectual and civic project of his lifetime, then, 0:25:39.050 --> 0:25:42.790 it is inconceivable that Madison just dashed off a quick 0:25:42.830 --> 0:25:48.210 thought and left it at that. Madison never dashed anything off. 0:25:50.230 --> 0:25:53.700 The reason the Second Amendment is problematic is simply because 0:25:53.860 --> 0:25:56.600 it was written according to a set of rules and 0:25:56.640 --> 0:26:01.220 grammatical norms that no longer exist. To understand what he 0:26:01.340 --> 0:26:04.780 really meant then We have to think as he, a 0:26:04.800 --> 0:26:08.010 man of the late 18th century, did. We need to 0:26:08.070 --> 0:26:11.950 enter the mind of James Madison. There are two ways 0:26:12.010 --> 0:26:14.870 to do this. The first is through the use of 0:26:14.910 --> 0:26:20.649 what are called linguistic corpora. These are massive research databases 0:26:21.070 --> 0:26:25.700 that contain hundreds of thousands of digitized documents going back, 0:26:26.100 --> 0:26:29.859 in some cases, many hundreds of years. Think of them 0:26:29.940 --> 0:26:33.900 as Google Docs. but for dusty old manuscripts buried deep 0:26:34.040 --> 0:26:37.940 in library archives. For example, there is something called the 0:26:38.000 --> 0:26:41.980 Corpus of Founding Era American English, maintained by Brigham Young 0:26:42.040 --> 0:26:45.570 University in Utah, which holds more than 120,000 separate documents 0:26:45.590 --> 0:26:47.370 from the period 1765 to 1799, totaling over 130 million words. 0:26:57.590 --> 0:27:00.090 If you want to know how many times George Washington 0:27:00.190 --> 0:27:06.370 dangled a participle, the C-O-F-E-A can tell you. So what 0:27:06.440 --> 0:27:10.340 do linguistic corpora tell us about how James Madison used 0:27:10.800 --> 0:27:17.680 being clauses? The most extensive empirical analysis of Madison's prose 0:27:18.380 --> 0:27:22.220 has been done by an Australian linguist named Kari Sullivan. 0:27:23.360 --> 0:27:26.750 Sullivan picked four corpora that were most relevant to the 0:27:26.770 --> 0:27:30.470 period both before and after the writing of the Constitution, 0:27:31.170 --> 0:27:35.960 a span covering 650 years. She made a database of 0:27:36.280 --> 0:27:41.860 every sentence containing a being clause. She found 1,363. Then 0:27:41.920 --> 0:27:46.740 she combed through each example, looking at the way the 0:27:46.800 --> 0:27:51.820 being clause was being deployed. Her first conclusion confirms why 0:27:51.940 --> 0:27:55.950 Madison's sentence is so mysterious to us today. In the 0:27:55.990 --> 0:28:00.430 past 100 years, she found, it has become extremely rare 0:28:00.810 --> 0:28:04.490 to find a sentence in published English where an initial 0:28:04.510 --> 0:28:08.540 being clause and the main clause that follows have different subjects. 0:28:09.360 --> 0:28:13.240 She writes, quote, Since this type of being clause fell 0:28:13.280 --> 0:28:16.960 into disuse about 100 years ago, it is reasonable that 0:28:17.040 --> 0:28:21.359 modern readers would not have good intuitions about its grammaticality 0:28:22.050 --> 0:28:27.170 or its meaning. End of quote. Then she asked, did 0:28:27.410 --> 0:28:34.310