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Tim Carey: I'm Tim Carey.
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Kari Still: And I'm Kari still.
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Kelly Roskam: Before we get into the meat of today's episode, we wanted to introduce ourselves just a little bit more.
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Kelly Roskam: We are all attorneys at the Johns Hopkins Center for gun violence solutions, and I, personally have been doing gun violence prevention work for over a decade.
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Kelly Roskam: My close work with gun violence survivors, particularly survivors of domestic gun violence has really motivated me to continue doing the work
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Tim Carey: And I entered this movement through my lens of child welfare. I was originally an attorney representing children in abuse and neglect cases, and trying to ensure that kids in difficult situations have the best resources and supports they could to succeed. And in doing this work I saw patterns of child after child coming through my caseload with with similar problems, where there were means to intervene that were just missed or not utilized. And if problems can be predicted, and there's a potential survival solution out there, then they can be prevented. And so I chose to reorient my work towards violence prevention. Specifically, gun violence prevention, because I saw the lives that it impacted and the toll it took on my kids and their families.
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Kelly Roskam: of making sure that as courts are interpreting the second amendment, that we maintain the ability to enact and keep effective gun violence prevention laws.
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Kari Still: ... And lastly, I've been working on Second Amendment litigation for over 2 years now my interest in second amendment, law and gun violence, prevention initiatives, and the work that we do stems largely from my background experiences encountering gun violence on a personal level as well as my former career as a domestic violence prosecutor. I'm thrilled to be here as a host on this podcast because gun violence is very pervasive in America, and has become a public health crisis, that our society can no longer ignore.
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Tim Carey: And that's a great segue. And so why we're here. So Kelly Kerry and I have been working in this field for some time, and we wanted to create a resource to help make the second amendment. And it's treatment by the courts more accessible to broader audiences, especially in the United States. This is a very pervasive problem in our society, and one that impacts all of our lives, and I believe it should be more, we believe, should be more accessible and more readily understood. So people can better
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Tim Carey: engage with this issue on their own right.
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Kari Still: And so to kick off episode 0 and the launch of our podcast we're going to highlight the importance of GVP work and the impact that gun violence has on individuals across America. And we're gonna also give you a brief overview of the Second Amendment, including its historical understanding and the 3 landmark cases that the United States Supreme Court has decided that dramatically altered its interpretation. And the way our legal system addresses second amendment challenges today.
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Kelly Roskam: So as we discussed data about
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Kelly Roskam: gun violence deaths in the United States, I I just want us to keep in mind that each and every one of these very disturbing large numbers represents an individual who had a life just like us, who had family just like us loved ones. You know, it can be really easy to lose
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Kelly Roskam: the individual in these
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Kelly Roskam: big data numbers. So from the most recent center for disease control Cdc, data, we know that 48,204 people died by guns in 2022,
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Kelly Roskam: 19,651 of those were gun homicides, which represents a 36% increase in gun homicides from 2019.
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Kari Still: And firearms also have a very troubling and persistent impact on suicide rates across the country.
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Kari Still: The annual firearm suicide rate in the United States is at the highest documented level, since at least as early as 1,968,
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Kari Still: and firearm suicides account for approximately one half of all suicides. In 2022 alone there were approximately 27,000 firearm suicide fatalities and critically, firearm suicides also account for the majority of all firearm deaths
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Tim Carey: And, critically. Guns were the leading cause of death for children in teens ages one through 19 in the United States for the fifth straight year in a row.
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Tim Carey: and these devastating impacts are also not born equally in our country. Black children and teens were nearly 20 times as likely to die by firearm homicide compared to their white counterparts.
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Tim Carey: For the first time on record, the gun suicide rate among black children in teens ages 10, through 19, surpassed the rate for white children in teens, ages 10, through 19
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Tim Carey: and over half of all black teens, ages 15, through 19, who died in 2022 were killed by a gun.
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Kelly Roskam: Wow! I mean, it is
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Kelly Roskam: really
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Kelly Roskam: startling to hear all of those statistics sort of back to back.
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Kelly Roskam: and I think really highlights the very real public health crisis of gun violence that we face in the United States today.
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Kelly Roskam: we're going to transition to talking a little bit about the courts and Second Amendment court cases.
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Kelly Roskam: So just briefly, the Federal court system starts at the lowest level in the district courts, where cases typically originate, they can be appealed to. The Courts of Appeals, also called the Circuit Court of Appeals, which is the intermediate Court level, and they can be appealed from there to the Supreme Court.
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Kelly Roskam: Highest Court in the United States, and the final decision maker in all these cases
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Kelly Roskam: States have a similar three-tiered court system.
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Kari Still: And before we jump into those second amendment cases, I want to start out by reading the second Amendments, plain text.
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Kari Still: 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.
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Kari Still: This amendment is an extremely contentious and rather unsettled area of constitutional law, and as we walk you through these 3 landmark cases, we'll explain that the right to keep and bear arms has been limited throughout American history and modern courts acknowledge the historical limitations on its meaning, and what kind of protections fall within its purview.
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Kari Still: So before 2008, not a single Federal case had ever struck down a law on Second Amendment grounds. The second Amendment, right was understood as a militia based right, a right that required some reasonable relationship to the militia.
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Kari Still: but that all changed in 2,008, when the Supreme Court decided a case called District of Columbia versus Heller.
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Kari Still: in a split 5 4 decision with the Conservatives and the majority. The Supreme Court recognized for the first time that the Second Amendment protects a right to possess an operable handgun in the home for purposes of self-defense.
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Kari Still: But what it didn't do was instruct lower courts like the district Courts and circuit courts, how to evaluate future second Amendment cases.
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Kari Still: 2 years after Heller, in a case called Mcdonald versus Chicago, the Supreme Court again recognized this individual right, and said that the State's ability to regulate firearms within their jurisdictions was limited by the Second Amendment as well.
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Kari Still: and once again the court there failed to also clarify how courts should evaluate second amendment cases, meaning what test is to be applied.
Kelly Roskam: Seems like that could have been pretty useful.
Kari Still: You would think.
Tim Carey: I think they thought they did a good job
Tim Carey: So with the absence of clarity from the Supreme Court lower courts, came together in a near, unanimous way around this 2-part test.
Tim Carey: first, the courts determine whether the regulated conduct
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Tim Carey: that the law implicated was covered by the Second Amendment at all, or whether the challenge law burden the second amendment, and if so, courts then determine whether the law is sufficiently related to furthering an important government interest. Typically in this context, public health or public safety, and if it was then they were deemed permissible under the second amendment.
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Kelly Roskam: Seems like a totally reasonable and logical way to evaluate second amendment cases. But what do I know?
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Kelly Roskam: The Supreme Court was relatively quiet. On the second amendment between Mcdonald versus Chicago and the most recent case, New York State Rifle and Pistol Association versus Bruen, which struck down this provision of New York's licensing law, and also recognized more broadly a right to carry firearms in public for the purpose of self-defense.
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Tim Carey: But that wasn't even the most significant ramification of the courts decision, I mean. The the most seismic thing the court did was change the 2 part test that we described earlier
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Tim Carey: The Conservative majority looked at the test the lower courts had created, and decided that in their words. It went too far.
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Tim Carey: and instead created their new 2-step test of their own, and the first step of which is very similar to the old one. It's essentially looking at the plain text of the Second Amendment and trying to see if the Second Amendment covers the conduct that is regulated by the law, and if it.
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Tim Carey: if it is, then
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Tim Carey: that proceeds to step 2, and if it's not, then the analysis stops there
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Tim Carey: and step 2 is where the real.
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Tim Carey: meaningful change happened, where, instead of having this governmental interest balancing of, can we weigh the right, the reverence of the constitutional right in balance with important governmental interest of protecting public health and safety. Instead, the Supreme Court said that courts must determine whether a modern law is sufficiently analogous. The historical firearms, laws to our nation's history. our firearms regulation.
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Tim Carey: What that means is, the laws could be shown through analogies like it feels sufficiently analogous to a historical law, then perhaps, a current law could stand, or feels some way related to our tradition if an exact copy didn't exist. But again, it left a lot of confusion and ambiguity for lower courts, because this really isn't how courts and lawyers are trained to engage with second amendment law, or any area of law.
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Kari Still: For as long as that Bruen decision is, it really did not clarify much for courts here. The court did say that the Government doesn't have to identify a historical twin to uphold a modern law, but it also cautioned against upholding every modern law that remotely resembled some historical analog.
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Kari Still: The court left many questions open as to how many laws might, you know, amount to a tradition as well as how do we address changing social conditions or technological advances? So, there's a lot of space here for courts to. They're trying to figure it out.
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Kelly Roskam: And unsurprisingly, they are struggling so, in the face of this confusing and unclear test, using analogies that should be close, but don't need to be too close, but can't be too far. You know, courts evaluating the same modern laws, evaluating the same historical laws, are coming to radically different conclusions about whether or not they are constitutional. And so there's been a lot of criticism from Republican appointed judges, from democratic appointed judges that they just don't have enough to go on to make a very firm decision in these cases. But that's what they're tasked with doing, and and
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Kelly Roskam: they are doing it.
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Tim Carey: And so amidst this, this, this mess of of varying opinions and social upheaval, while the crisis of gun violence is ever more persistent in our society.
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Tim Carey: We're here trying to make sense of it.
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Tim Carey: So we're really excited to be here and be creating this podcast and sharing this information with you all, we thank you for tuning into sufficiently analogous. Your first stop for thoughts on the second Amendment.
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Kelly Roskam: Sufficiently Analogous is a podcast from the Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health. Produced by Tim Carey, Joe McHugh, Kelly Roskam, and Kari Still. Audio production from Matthew Martin, Philip Porter, and Holly Cardinell.
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Distribution and social media by Shakun Kashal.
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