February 27, 2018

Why not bring on an author who's an actual legal expert to discuss gun control? That's what Chris Cuomo did on New Day this morning, offering a basic primer on the Second Amendment.

Cuomo said the Second Amendment "gets waved around as a reason not to do anything" and introduced Michael Waldman, a constitutional lawyer and the author of "The Second Amendment: A Biography."

"Let's try to nail down some of the nuts and bolts of this," Cuomo said. "I will offer up arguments in favor of it. It's my right to have any weapon that I want and you are trying to take that from me with any furthers as big a bedrock principle as the First Amendment."

"So, the idea that the Second Amendment gives you an unlimited right to a gun is not in the Constitution. The conservative Supreme Court Chief Justice Warren Burger said it was a fraud on the American people," Waldman said.

He explained that the Second Amendment reflects individual rights to gun ownership as recognized by the Supreme Court only since 2008.

"Before that, it was seen as referring to the militias, which were these minutemen, which were the state armies of people who owned their guns at home and were actually required by law, white men were required by law, to own a gun and be in the militia. Even now, the idea that the Supreme Court has upheld that it's an individual right, you can have gun restrictions and strong gun laws. We have rights in this country and we also have responsibilities," he said.

"So two points, one historical, one practical. The historical one, is it true in its earliest interpretations, that the Second Amendment wasn't about individuals telling the state we'll have guns when ever we want. It was the opposite. It was the state largely because of Washington's influence where he couldn't get enough well-armed, well-trained people to get an army, which is what he wanted, not these individual militias, saying to the individuals you must have a musket, you must know how to use it, you must have it for your own and bring it when we call you."

"It's such a world that's so different from what we know now. It was a universal draft, basically. George Washington wanted the strong Constitution. A lot of people who were opposed to the Constitution were worried that the government, the big central government, would be too strong. They wanted to protect the state-run local armies basically. Now, they had an individual right to gun ownership to serve the duty of being in the militia. Our question to the founding fathers would make no sense, just like their answer to us makes no sense. But when you look at the -- when they were debating the Second Amendment on the floor of the House of Representatives, it was about this issue of military service. They were very concerned about the public good."

"From the gun advocate's perspective, Waldman, you're killing me with restrictions," Cuomo said. "I want to get a gun legally, it's so difficult for me and so easy for the bad guys. Every legal change you're going to make makes it hard for me, the law-abiding person wants to exercise my constitutional rights and easier for everyone who wants to hurt me and my family," Cuomo argued.

"When Justice Scalia wrote that opinion ten years ago in the Heller case, the Supreme Court said, you know, you could have restrictions on guns that were unusually dangerous or that were in the hands of the wrong people, whether it's the mentally ill who shouldn't have guns or something else," Waldman said.

"We have those kinds of restrictions all the time. We have them on cars. You have the right to drive a car. They don't ban cars. Nobody is calling for that. But we have speed limits and you have to pass a driving test. And they have air bags. These are the kinds of --"

"You have to wear a seat belt," Cuomo said.

"Even if you don't want to," Waldman agreed. "And that's the kind of restriction that would make guns something that were much less dangerous to society. The kind of weapon of war that we saw in Florida and we saw, let's not forget, in Las Vegas by somebody who was well over 21, that kind of weapon can be banned constitutionally. The courts have upheld that across the country. And we should not be afraid to admit that as a country that we can actually protect ourselves and our rights at the same time."

"And the proof of it was the Brady Bill, the assault weapons ban in '94. The aspect of forcing state law enforcement officials to put into effect certain regulations, that got knocked down in the Prince case at the Supreme Court level, but the overall law and the concept of banning assault weapons did get constitutional legitimacy," Cuomo said.

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