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Interview with David Hardy

Interview in MP3 format

This is Talkin’ to America. I am your host, Aaron Zelman. Our special guest today is David T. Hardy, Attorney-at-Law. David is the producer and director of a new documentary that will help all of us in helping others understand the true meaning of the Second Amendment. The name of the documentary is In Search of the Second Amendment. David, welcome to Talkin’ to America.

David: Thank you Aaron, glad to be here.

Aaron: Tell us a little bit about you and tell us where people can contact you to order the film.

David: I am an attorney and practicing for 30 years. I started writing on the Second Amendment actually while I was still in law school and I published my first article back in 1974. I think it played a role in the revival of the Second Amendment in academic thought. It was probably the first, what you would call, modern Second Amendment article. I have kept at it for 32 years since, publishing and studying as much as I could. The documentary if someone wants to order it is at the website, which is or you can just google Second Amendment Documentary and you will come right to it, either way. As far as I can see, the first real documentary on the Second Amendment, the specific focus on the history of the American right to arms as opposed to, you know, the value of the right to arm similar concepts.

Aaron: I know that after I watched it, I was really enthusiastic about it because as I had mentioned to you, I think you have taken just hundreds of years of knowledge and you have condensed it into less than two hours. You have made it real easy for people to explain the history, the value, and the necessity for an armed citizen, which I think is what the Second Amendment is all about.

David: I tried to cover every aspect of the Amendment, from, you know, the political angle, the deterrence of tyranny, the prevention of genocide, which of course, you and JPFO have explored more extensively, and also the concept that when the framers wrote of preventing oppression they didn’t just have public oppression in mind, governmental oppression, they also had in mind the concept of private oppression by criminality and how important it is with self-defense, the 2.5 million self-defensive uses per year.

Aaron: Why don’t we break this discussion down into two main parts? Let’s deal with things that people probably don’t know that they probably should know and that you tell them about and then let’s also deal with how people can use your film to help win the battle.

David: What people don’t know that they would learn from this film, there are quite a few concepts, but I would say that one right off the top would be that the top constitutional law scholars in the United States maintain that there are two constitutional guarantees of the right to arms. Obviously, we have the Second Amendment, but there is also the Fourteenth Amendment, which was ratified after the Civil War, 1868, and had a clause in there forbidding states to abridge the privileges and immunities of US citizenship, and if you go back into the congressional debates, the main reason for that clause that keeps coming up time after time is in the states of the former confederacy, they were disarming black civil war veterans who had gone home with their muskets in order to render them vulnerable to plan an attack, and the governments were doing this. I have got in there quotations from the congressional record that are just beautiful where one guy reads off one of the laws that made it illegal for black Americans to own arms. They actually had them and says that last time I checked the constitution, there was something in it called the Second Amendment and until the state learns to respect the Bill of Rights and their local gun laws, I am going to vote against its readmission to the union. So there is quite stunning evidence that in 1868 the framers of the Fourteenth Amendment also meant to protect the right to arms as they understood at that time and moreover that this was an intensely personal right. One of our law professors, one of the biggest names in the field of constitutional law, makes that point, that when you talk about the Second Amendment, you are talking about the right to keep and bear arms, but it is in a political context. The militia will deter any federal tyranny. When you talk about the arms in 1868 under the Fourteenth Amendment, it is very personal. It is not you are going to deter political tyranny. It is you are going to fight off an invader at your front door and protect your house and your family, so to his mind that makes it an even more personal defensive right than it was in the first place. I doubt that there are probably but a couple of dozen people in the country who know that, and I have got, like I say, the biggest men on American constitutional law explaining that that is the case.

Aaron: Well now thousands and thousands of people will know thanks to you.

David: I am hoping and as far as how you can use it, I designed this not to preach to the choir. Let’s face it, we have got plenty of stuff out there which really just preaches the choir. If we already believe in your gun rights, this will make you believe even more in your gun rights. It will tell you that you are correct. I designed this to go beyond that. First, if you are a gun activist, you will be well armed with intellectual information and ammunition that you can use at the end of watching the movie, but also I intended to make it such that I could come as close as possible to guaranteeing making a convert out of anybody else you show it to. Anyone who watches it will come away with the right to keep and bear arms. It is probably our most ancient right, dating back over a thousand years in English law. It was well-recognized by the framers and intended to be a personal right. The National Guard has nothing to do with it. It is not even the militia. It wasn’t legally intended to be the militia. Congress when they set it up designed it as a component of the army, and finally that the right to keep and bear arms is enormously important, both on a national basis and an international basis, and guns are used far more often to defend against criminals than used by criminals, so it will all be related with here are the documents while an expert explains it to you. These are not just talking heads. These are some of the top professors of constitutional law in the country. I want a viewer who is not already a member of the Brady Campaign, but someone who is in the middle, you know, knows about the right to keep and bear arms but doesn’t particularly care, to come away from this believing strongly in the right to arms and understanding why we activists view it as such an important thing. I wrote this to make converts.

Aaron: From what I saw of it, I think there is no doubt that you have made it easy for gun owners to go in and talk to other people and show the film and accomplish the goal that you are trying to achieve.

David: Yes. I have segments in there, I mean if you are talking about two portions of the population where we haven’t made great penetration as it were, you would probably be talking about urban African-Americans and women, and so I structured the entire Fourteenth Amendment end to speak as civil rights struggle. I have a couple of civil rights workers in there. We talk about how they own guns and defended themselves against clan attack with them and how basically all civil rights workers almost were all armed, but they just never made the papers. They weren’t stupid. They knew people were trying to kill them, so I have got a drive in there that would appeal to black Americans. The Fourteenth Amendment is part of their history, very much their particular contribution to the right to arms and the concept of American liberty, and a pitch toward women because I have women speakers – Carol Bamberry, Sandy Froman, and some others carrying much of the self-defense end of the film.

Aaron: What would you suggest that people in the African-American community do who believe as we do in the right to keep and bear arms, the right to defend one’s life, what would you suggest they do to reach out to the Jesse Jackson crowd and the Al Sharptons and the NWACP who don’t believe in gun ownership.

David: I am tempted to say show them this film but that might be a bit self-serving.

Aaron: A good first step as long as they can get somebody to sit down and watch, but beyond showing your film, are there any suggestions because whatever you suggest probably is also going to be useful for people like me in the Jewish community who are trying to reach the so-called leadership with the truth.

David: I would say that the argument to be made there to the Jesse Jacksons, etc., is that the right to keep and bear arms is our right. The Fourteenth Amendment was all built around laws that disarm specifically black Americans and union veterans. It was designed to keep them in their place and keep them vulnerable to violent attack. The civil rights movement was based largely upon people who were armed and therefore couldn’t be snuffed out by the _____________ of their leisure. It has happened to some of them who have made a mistake of not going armed, and even today who most needs the right to defend against criminal attack, and the answer is urban area African-Americans disproportionately. That is the group that is looking the worst thread of criminal attack and here is, like a say, a 2.5 million defensive uses per year.

Aaron: Where does that number come from again?

David: I filmed Professor Gary Kleck, Professor of Criminology at Florida State University, and he has done the biggest surveys on defensive gun use that have ever been undertaken. I think he surveyed 5,000 people whereas for most polls on who is going to win the presidency, you stop at about 1,200. Well he got 5,000, and extrapolating from their answers, he said that the conclusion was that Americans use guns defensively about 2.5 million times a year. He also said that about 400,000 of those people would say if you asked them that they felt that their defensive gun use preserved a life, either their own or someone else’s. I want to point out that all you can know on the survey is what a person tells you, but suppose that of those 400,000 who would say it, 90% were wrong, that is still 40,000 lives saved, which is more than what is taken by criminal use, so the odds are that in terms of protecting against crime versus committing crime, guns at least break even and probably come out on top in terms of saving more lives than are taken.

Aaron: They certainly would have been useful during World War II in Europe.

David: Oh ya.

Aaron: Some people don’t quite understand that yet, but had people had firearms and were willing to use them, I think there would be more dead Nazis than were alive Nazis. There is a lot of information here and I hope that people will buy the video because there is more than what we can really cover in 30 minutes, but let’s spend some time talking about what people can do with this and what you would recommend and what kind of, I guess game plan, people can put together to utilize all the knowledge that you have put together.

David: I think Professor Glenn Reynolds who is in the film actually has published a book called Army of Davids; the idea that modern technology enables us to organize spontaneously without an organizational pattern behind us, without the mass media supporting us, you can get thousands of people to do something without having a formal structure, and I think that with this DVD, every gun owner can essentially become a one person PR firm for the Second Amendment. I can show it to people. In fact, I have put up on the website a license that after April 1st of the coming year, they can show it on cable TV for free, so go to your community and start showing it. Show it to your friends. Show it to your kids so they know the history of the right to arms and why it is important. See if their school will let you show it. Essentially every one of us can become a PR firm.

Aaron: What would you suggest though a little more specifically that people can do in their own family, their own community, with their coworkers, what kind of activities aside from simply showing it can they undertake to encourage others to become very enthusiastic about the right to keep and bear arms?

David: I think just talking to them, explaining the importance. If you are in an area where you can get CCW permits, suggest to those who might need the most protection and in particular ladies in the office that you know you might want to look into this.

Aaron: You mentioned CCW permits and concealed carry permits. From a JPFO perspective, concealed carry permits are immoral. I mean by that we all have a God-given right to defend our life, so why do we have to pay the state to a revocable privilege that then tells us where we can carry a firearm to defend our life. Do you have any comments about what kind of mindset I think CCW owners should start developing so we can eliminate their laws and fully enjoy a God-given right.

David: I think the mindset you started out with is obviously they have had an extremely good record in terms of CCW holders not getting in trouble except over technical points, so your next step would be to try to extrapolate that to gun ownership in general, responsible gun owners in general, that would there be a problem with them carrying. It is sort of hard to articulate. I mean, obviously you have to ask yourself how many people who were bent upon committing a serious crime are going to be worried about a misdemeanor citation for carrying concealed, so presumably I suspect the answer is pretty close to zero, so what is the good of it. I think you might want to develop a sort of mindset that even though I got this permit, I really would have liked to have my rights without having to get the permit and therefore maybe that is the next step.

Aaron: I think that is. I think that we, the governed, you know, we give our consent to the government, and I think it is time to withdraw our consent.

David: We have seen some movement here in Arizona toward moving slowly in that direction. Of course, Arizona was always open carry. No CCW at all, but you could carry openly anywhere you wanted. Then we went with an optional CCW system and now they are starting to pare back the requirements, so we may eventually get there. I think the first one was they cut out the requirement for taking 4 hours retraining every 3 years and then I think they cut down on the number of hours, and so you may eventually get there step by step.

Aaron: With due pressure from people who have something to offer the country and be able to tell the government that they are wrong, yes, I think maybe in due time, but sooner better than later. It took you many years to put this film together and I think for those of us who make films, a question from my perspective is what was the most difficult thing you had to deal with.

David: Well, it took almost exactly four years. I started filming in January, 2003 and I trust you all understand where I am coming from when I say the biggest problem was getting up enough money to do it. With any documentary of this type and I am sure with yours, you get something done and then you have to go back as there is no budget to do the rest of it, so you have to go back and try and scare up some money to do that. You know, do one more thing and go back and look for it. I would tell you the truth Aaron and I suspect that both of us working on documentaries come to appreciate what it was like to be a captain of a mercenary army in the medieval period, that would be basically the troops need to be fed, so for every day you spend fighting you will spend six months trying to you know keep things together.

Aaron: That is pretty much it. That is a good way to put it. When you were traveling around the country and doing the documentary film, did you have any problems with people who didn’t want to talk or who were reluctant to be interviewed.

David: Only one who I won’t mention. It just seemed like I could never set up the actual filming and I don’t know what was going on there. He may have just been camera shy. Then the other problem which was so often is that you fly in and get everything organized and you are just praying that everything works out and then you show up on the scene and you got problems like there is air-conditioning noise because I filmed most of this in their offices and not in the studio, so you go into the office and there is air-conditioning noise, it is going to pick up on the tape clearly, so you wind up juggling the microphone to get rid of it. There is one section in the film where I am in Arlington National Cemetery and they had to filter the audio so heavily that the voice sounds sort of ringing for about 15 seconds, like you are speaking in an echoey room. That is a product of the audio filtering because you can’t move Arlington Cemetery and it is only about a hundred yards from major highways, so there is terrific traffic noise and no way you would ever do without it.

Aaron: Let me ask you another question getting back more to the Second Amendment. What future do you see in America for the Second Amendment, for an armed citizen, for politicians, understanding the true meaning of the Second Amendment and its true intent.

David: I sort of write off politicians, but with regard to the rest.

Aaron: Now that’s a good point. Why should people write them off.

David: Because I think for the most part they don’t care about the constitution at all. They view that as best an impediment, which of course it is. It is meant to impede the legislature doing certain things, and at the very most maybe something hey the courts worry about that, so if it is unconstitutional and the courts strike it down, we don’t have to worry. Never mind that we took an oath of office to support defending the constitution just like a judge does.

Aaron: Do you think they remember taking that oath?

David: No. I don’t think they take it seriously at all. I doubt that there are five people in congress who seriously must be run and four others somewhere who seriously regard that oath as morally binding in any sense, so I tend to cross them off, but the people, I think we have seen a resurgence. I think actually over the last 20 years, maybe 30, we are coming ahead. We are winning the fight. I mean if you look at 1968, the gun control act passes. In fact, it passed twice. First, there was the omnibus bill which mostly pertained only pistols, and then a few months later, they come back with the Gun Control Act of 68 because that wasn’t enough. They have to control rifles too. They are on a roll. They are looking at maybe getting National registration. They didn’t get that in 68 but they thought they had a good shot at it and maybe they would get in in a few years, the National permit systems, everything. Look at it today. I mean if you look at Brady and the other groups, they aren’t even talking about that. What they are talking about is oh we just want this or that, a common sense thing. They want to nibble away. While they are still nibbling, at least they are not in a position where even they think they can take a big bite. It has changed.

Aaron: What steps do you think we could do as gun owners, 100 million of us as I understand the number correctly, to eliminate gun control in America.

David: You will have to talk with one of the only languages a politician understands and that is votes. If you don’t eliminate this, I will not vote for you period. I don’t care if you cut taxes or increase taxes or anything else, but if you don’t vote to take out these provisions of the gun law, I am not going to vote for you period. Politicians understand that language. They may not understand their oath of office, but they understand losing votes.

Aaron: This raises a very interesting question from my perspective. Again, assuming that there are about 100 million gun owners in America, this is really a guess on your part, it is speculation, that this message of votes is something that we would not have been able to get 100 million gun owners to agree on.

David: I think even among gun owners, even gun activists, are not single issue, and that is the problem. The politician figures he can peel off enough votes with other things to where someone will vote his way because he did the right thing on Social Security or taxes or something, and so okay, I lose a few votes because I haven’t started eliminating gun control, well I can write them off. The question is how many of the voters really are genuinely willing to make this, I don’t care what else you do, if you don’t back me on this, I won’t back you period. Obviously, if 100 million voters did that, we would have a complete turnaround in the country. You know the next election, well actually, they would just learn their lesson. The election after that they would pretty much have to abolish whatever you wanted if you actually had 100 million voters acting in unison.

Aaron: Do you think your documentary can help 100 million gun owners finally understand the Second Amendment in its entirety, what it is all about, so that we can get closer to the point of having millions and millions more people are going to tell the politicians do it my way or you are fired.

David: I sincerely hope so. I can’t guarantee it but at least they will understand how the amendment got there and why we need it today.

Aaron: Why don’t we just review a little. What do you want gun owners to understand and what do you suggest they do to help others understand and especially the politicians?

David: What I would like the gun owners to understand is that the American right to arms is our oldest right. It is up there with jury trial. One of our two oldest rights. It takes back over 1,000 years, and in fact was first written as a right recognized by parliament over two centuries ago. I would like to realize that it was clearly intended by the framers as an individual right that the National Guard had absolutely nothing to do with it. It is a personal right. It is your right and my right and I would like them to understand that it has current value today in terms of protection against tyranny, protection against genocide, and protection against criminals. Once they understand that, I think they really have a basis in the Second Amendment. What I would like them to do is start to figure that we are going to retake this right. I mean, it has been chewed away at and there are still groups trying to chew away at it. Essentially it is our right and we have to protect it for ourselves and for our kids.

Aaron: Why don’t you tell people again where they can order the documentary.

David: Oh sure. The best bet is the webpage,
I also have some coupons if they want to send in on the website, but I haven’t really so far had any other way of ordering them, I am just starting out there.

Aaron: Now you have another website that is called Of Arms and the Law.

David: Actually the website address is

Aaron: It is a daily blog and people can come there and sign up for your alerts.

David: Yes. It is a blog devoted specifically to gun laws, so occasionally I go into gun things outside of gun laws and the Second Amendment studies, but I try to stick as much as I can to legislation and constitutional points.

Aaron: What other points would you like to raise?

David: I think that that is probably the areas that I was hoping to cover. As I say, this was four years of production based on 32 years of research, so it is pretty extensive.

Aaron: Do you think you have it figured out by now?

David: Yes, pretty much. There are still a few murky areas but most of them are covered.

Aaron: I think that is called politicians. David, I want to thank you for being a guest on Talkin’ to America. I am your host Aaron Zelman, and I would like to remind all of you if you don’t defend your rights, don’t complain when you lose them.

Opinions expressed on this program do not necessarily reflect those of or its members. Talkin’ to America is a production of

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