The forces that shape gun culture

**Terry Gross** (0:00)
This is Fresh Air. I'm Terry Gross. How did we get to the point where there is a mass shooting nearly every day, and yet, it keeps getting easier to purchase guns, including assault rifles? That's what my guest Mike McIntire has been trying to track. He's an investigative reporter for the New York Times, and has covered gun violence during much of his four-decade career in journalism. His new book Ricochet, Guns, Greed, and the American Way of Violence, includes new insights into the National Rifle Association and the gun rights movement. They're based in part on NRA documents he got access to, as well as the papers of the late John Dingell Jr., a longtime congressman who while in office, simultaneously served on the board of the NRA. Dingell was a leader in popularizing the interpretation of the Second Amendment as applying to individual rights as opposed to collective rights of a well-regulated militia. McIntire's book also includes some fascinating early history, including how controversial the Second Amendment was at the time it was written. Among the other subjects McIntire has been covering for the Times is a recent story about ICE's legal cases against people charged with assaulting ICE agents and how those cases are crumbling in the courts.
McIntire has been part of teams that have won three Pulitzer Prizes.
Mike McIntire, welcome to Fresh Air. I really learned a lot from your book, so I'm glad you wrote it. Let's start with the AR-15 case before the Supreme Court, because they at the end of this previous term agreed to hear it. So we'll probably get a verdict at the end of next term.
This case is going to determine the standard for how the legality of gun laws are determined. And the question is the use of the word common use. Can you explain what the wording is about?

**Mike McIntire** (1:59)
Thanks, Terry, for having me. Yeah, this particular case that the Supreme Court has agreed to take up promises to be pretty controversial and, I think, impactful.
As you pointed out, when they take up these arguments in the fall and eventually come to a decision, the outcome is likely to turn not on big debates about public safety, but on this rather arcane technical question of whether or not an AR-15 can be considered to be in common use. This was a test that the Supreme Court itself created in an earlier gun rights case. And essentially what it says is that if a gun is commonly used, if a lot of people have it, it's popular, it's protected by the Second Amendment and can't be banned. And I think it's likely, given the court's recent history, that they probably will decide, the majority will, to overturn these bans. There's nothing in the Constitution, the text or history of the Second Amendment, that reflects this idea of a common use testing. That is one of several things that the modern era Supreme Court, since the Heller decision in 2008, has created to try to help lower courts navigate the possession and use of firearms, what's legal and what's not.

**Terry Gross** (3:13)
But how is a jury supposed to decide what common use means? And why should that be a determining factor? I mean, it could be a marketing thing, like the guns with the best marketing, the guns that get to be most legal?
Is that the way it's going to work?

**Mike McIntire** (3:29)
This is a question that the Federal Appeals Court in Illinois actually raised a few years ago when this very issue came up. And the appellate justices took a very dim view, or at least a couple of them did, of common use tests, and they raised some of the issues you just did. And one is just a simple logic problem, okay? So, let's say in the case of fully automatic machine guns, for example, which are essentially not going to say outlawed, but they're very, very difficult to get in the United States. That was because of a law passed in 1934 Had that law not been passed, I have no doubt that a lot of gun enthusiasts would love to have a machine gun, and they probably would be in common use today. And therefore, they would be considered protected under the Second Amendment.
So this kind of circular logic of when constitutionality kind of winks on and off, depending on how popular something is, is an issue that has really kind of confounded lower courts. And it will be interesting to see how the Supreme Court tries to clarify that, if at all.

**Terry Gross** (4:27)
Another thing is like there's what, at least three justices who consider themselves originalists, which means reading the Constitution as literally and as close to the founders' intent as possible. And the founders seem to have no intent to determine the legality of guns based on common use. Where does that come from?