A Q&A with famed Second Amendment scholar, litigator and author Stephen Halbrook

Stephen P. Halbrook, Ph.D., is an icon in the gun-rights arena.

Stephen P. Halbrook, Ph.D,

Stephen P. Halbrook, Ph.D,

Halbrook personally argued three gun-related cases before the U.S. Supreme Court, winning all three.

He’s testified before Congress, appeared on numerous television programs and written briefs for two of the most significant Second Amendment cases ever heard by the Supreme Court, McDonald v. Chicago and D.C. v. Heller.

For Heller, he was asked to write a brief on behalf of the majority of lawmakers in both the U.S. House and Senate.

Halbrook’s “Firearms Law Deskbook,” is a must-have “co-counsel” for prosecutors, defense attorneys and Second Amendment scholars.

Halbrook will be signing books and speaking about one of his areas of expertise — gun control in the Third Reich — at 5:30 p.m. on Thursday Oct. 13 at the Al Katz Center for Holocaust Survivors & Jewish Learning Inc., 5710 Cortez Road in Bradenton.

He agreed to be interviewed prior to his lecture.

Here’s our Q&A:

What will be the substance of your lecture Thursday night?

“I am going to focus on one specific period in the weeks leading up to Kristalnacht. In the months preceding the attacks, the Nazis were already disarming the German Jews, getting ready for the pogrom. It’s a very unknown phase of history. The gun confiscations associated with that are not well known. There have always been questions about Kristalnacht – about whether the attacks were preplanned. My thesis is that it was planned well in advance. The strongest indicator we have of this is that the Jews were being systematically disarmed, and had to turn their guns in to the police. Many did so, and were arrested and interrogated by the Gestapo. Guns were highly regulated under a 1928 Weimar Republic law. They already had a lot of record keeping. In 1931, they had to register all guns. Moving to 1938, in a prelude to Kristalnacht, the German police had a registry of gun owners – and their religions – and could identify all the Jews who owned guns.”

Do you see any parallels between then and now – between pre-war Nazi Germany and the present day United States?

“The procedures to keep records of gun owners – there’s definitely a similarity there. There’s no comparison to the vile and vicious policies of the German government at that time and our government today, in attacking Jews. The whole question is whether gun owners are considered law abiding and not recorded by a central government as the European Union does now.”

What concerns you most: erosion of our Second Amendment Rights on the federal, state or local level?

“Potentially, because it could be the most far reaching, it’s the federal level. What could happen is a U.S. Supreme Court nominee by Hilary Clinton could overturn precedents that the Second Amendment means something, which could lead to Australian-style gun confiscation, where guns were confiscated en masse. Fortunately, there are 42 states that have fairly reasonable gun laws – Florida is one of them. In the other states, you can get a felony record for possessing a gun without the right paperwork. I’m fairly optimistic about the free states of our country. I don’t foresee the laws changing there.”

How much of an impact did U.S. Supreme Court Justice Antonin Scalia’s death have on our gun rights?

“It’s potentially enormous! He wrote the DC v. Heller opinion. It was a 5-4 opinion, with a very strong dissent. We still have the dissenters, who are convinced that the opinion of the court was not the correct opinion. Just this week Justice Breyer said an individual has no right to keep and bear arms. If they get one more justice to tip the balance the other way, the decision could be overturned.”

If a future Supreme Court wanted to overturn Heller or McDonald how would they go about it – how would this work?

“They just pick a case – it could be that simple – a case coming from a Court of Appeals that could go either way. The Supreme Court could say their earlier precedent was wrong and anything goes. The other danger is they could say – fearing public disapproval – they could continue to recognize an individual’s right to keep and bear arms, but that nothing ever violates it.”

Does regulating ammunition sales by rationing, background checks, mandatory micro-stamping, etc., infringe upon the Second Amendment?

“All of it does. Requirements like in New York or California, where gun owners have to go to special places and have background checks just to buy .22 or shotgun ammunition – it’s just harassment. California has a law in place – it’s not effective yet – that will require people to leave a thumbprint when buying ammunition. This, and the so-called smart gun mandates, are just ways to make gun ownership impossible.

Are you going to become involved in the litigation against Massachusetts Attorney General Maura Healey, which seeks to overturn her “assault weapon ban?”

“I am a consultant. I do legal consulting. I have no comment on that.”

What is your opinion of Attorney General Healey’s ban?

“It’s incredible. The federal “assault weapon ban” was bad enough, but the whole idea of requiring people to get background checks, and get clearances, and then to say that their rifles – the most popular rifle in the country – is only good for criminal purposes, is an insult to all Americans.

In your opinion, should silencers/suppressors be removed from regulation by the National Firearms Act?

“Absolutely! I just published a law review article on that. What’s incredible is that the technology was developed in the early 20th Century, at the same time there were mufflers being developed for automobiles. With firearms, these so-called suppressors were developed so people could comfortably fire their guns without hearing damage. All of a sudden, in 1934, that all comes to an end. In European countries you’ll find the opposite. In the UK, the Home Office, the highest police agency, endorses the use of suppressors so you don’t damage your hearing or disturb your neighbors. Also, a silencer is still defined as a firearm in the Gun Control Act, so if they’re moved outside of NFA, you’d still need a background check.”

Is the ability to carry a firearm openly – open carry – guaranteed by the Second Amendment?

“It would seem obvious that we would have that right. When the republic was first founded, there weren’t any federal gun laws. The first (Open Carry) case occurred in Kentucky. Most states have allowed open carry. Many have never banned open carry. I’m from Virginia. Since colonial times there’s never been a law. Certain court cases shaped by Heller say open carry is a right. The Second Amendment has been applied to the states, and the Supreme Court has said bearing arms means carrying arms.”

In your opinion, should one’s ability to keep and bear arms be impacted by a misdemeanor domestic violence arrest?

“If a person has been convicted of a violent felony, there’s been an understanding that they’ve waived their Second Amendment rights. To punish people because of a misdemeanor conviction really stretches things.

In your opinion, is Constitutional Carry – also known as permitless carry – what the framers had in mind when they crafted the Second Amendment?

“I have to laugh. The thing is, they never anticipated all of these rules and regulations. The framers could carry guns at will. No one ever objected in those days. If you were an able-bodied male, there was a law saying you had to have a gun and go to militia musters. The law required gun ownership. The only other gun law was related to slavery. African-Americans could not legally possess a gun without special permits. The basic fact is that the framers did not anticipate all of these requirements to get the government’s permission to exercise their right to keep and bear arms.”


About Author

Lee Williams can’t remember a time in his life when he wasn’t shooting. Before becoming a journalist, Lee served in the Army and worked as a police officer. He’s earned more than a dozen journalism awards as a reporter, and three medals of valor as a cop. He is an NRA-certified law enforcement firearms instructor, an avid tactical shooter and a training junkie. When he’s not busy as a senior investigative reporter, he is usually shooting his AKs, XDs and CZs. If you don’t run into him at a local gun range, you can reach him at 941.284.8553, by email, or by regular mail to 1777 Main St., Sarasota, FL 34236. You can follow him on Twitter: @HT_GunWriter and on Facebook @The Gun Writer.

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