GLENN: You are going to get the actual facts from the people who are in the courtroom when it happened. Lorianne Updike, she is with Consource and she was actually in the courtroom. Hi, Lorianne, how are you?

UPDIKE: Hi, Glenn, how are you?

GLENN: Very good. Tell me what happened today.

UPDIKE: Well, when the chief justice went to announce the decision, you just heard a ruffle around the courtroom. I think a few people knew that Justice Scalia is an avid hunter and has a big buck in his chambers. So you knew what was coming down. It was a little bit electric.

GLENN: What was the -- was there a moment outside of that where you just couldn't believe it and you're thinking, I'm sitting here listening to real history.

UPDIKE: You know, I've had a couple of really amazing moments in the Supreme Court. This morning was absolutely one of them. It was interesting to note how contentious the dissent and then the majority opinion were, yet I happen to know that these guys go and grab burgers together after it's all said and done. So the moment when I thought, you know, this is making history was when justice Scalia said that with any standard the Second Amendment takes off the table, takes certain policy choices off the table including an absolute prohibition on guns and then Stevens' dissent goes through and he says the Second Amendment does not protect an individual's right to keep a loaded handgun in urban areas. But what I see this as and what is most exciting for me is that battle of the documents, as somebody from the Brady Center said. Both side looks at the documents and as one who heads up a project that is most concerned with the documents, I have son interesting takeaways from the opinions, particularly that there's a few things that both sides would probably agree with. One is that the Second Amendment is poorly worded. You have a comma problem. A well regulated militia being necessary -- let's see. If you have that in front of you --

GLENN: No, I don't have it in front of me -- hang on, I do.

UPDIKE: Okay, I've got it here. 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. So the key question here, of course, is, is the prologue before the comma determinant or not and that's when you start to look at the documents. The problem, though, is that you have cherry-picking going on. If you look at the briefs, and I just reread them over the last couple of days from both sides of the argument, there's a lot of cherry-picking going on to find those documents and those quotes that are most helpful. But there needs to be a system and an order, and cherry-picking has been allowed because these documents are unavailable. Both sides referenced the English Bill of Rights from 1689 and --

GLENN: Why do we care about the English Bill of Rights?

UPDIKE: Well, you see, it's a precedent to our Bill of Rights. There are precedents out there in the state constitutions which we have up on Consource and the English Bill of Rights.

GLENN: But Lorianne, you know and I know that the militia was originally not something that was funded by the government. It was Ben Franklin running around to his neighbors saying, grab your guns, boys, we need to protect our own land here because the government isn't going to do jack; the British are coming.

UPDIKE: The militia had a very Democratic nature to it and one of my favorite moments to the day was when I saw a heckler outside with a sign, with a quote from Patrick Henry which said the great object, every man be armed. It was great. And now a lot of the founders' conception of what a militia was, it was not the point of a dissent argument. Dissent did not focus on whether or not the government controlled the militia, but Scalia's view was that it was well known unanimously that every man who could should bear arms and participate in the militia. And if you look at it from the colonists perspective, this makes sense. They just defeated a massive army in large part because of their militias. Yes, the militias were scraggly and they were untrained in many instances, but they had guns. In fact, Scalia talked about how in Boston, in Massachusetts particularly, in Lexington and Concord, the militias were not disbanded. It was the arms who were taken away. And so I think everyone would agree that militias were of quintessential importance to the founders and that's why it finds itself in the prologue. But then the question becomes, well, what is a militia? Is it an organized body of the people or is it government-organized? And that's where the real contention comes in.

If you drill down to the individual framers, yeah, most of them from my reading talk about, you know, individual rights, but I don't think, I personally don't think that drilling down to what the founders said is what has most legal precedents here. You should look at the documents, and this is why I think there needs to be a methodology describing, you know, what's the pecking order, how do you determine what the Constitution says. When you have a blank slate in front of you like the Supreme Court has had here and there's no precedent, there's no decisions. They get to go back to 1791 when the Second Amendment was passed and the Bill of Rights and so okay, what does this mean from a first instance. And at that point you need a methodology. And you can't just go to individuals. No, you have to go to the discussions, the legislative history, the precedents like the English Bill of Rights and the state constitutions, the state recitation debates which we also have on Consource and then you get to individuals, both their letters and basically letters to the editor like the Federalist Papers.

GLENN: Right.

UPDIKE: I think the Federalist Papers have way too much currency when we talk about the founders. Those were individuals writing, in short was widely published and widely read. However, it's one person's opinion and it's not legally binding. You've got to look at the bodies.

GLENN: Lorianne, you have all of the information that the Supreme Court looked at, you have it in one place, do you know, on Consource?

UPDIKE: We have a lot of the documents on Consource that were referred to. We're continually growing and we've just added over the summer some of those that they referred to today, which was great, state constitutions and some of these precedents.

GLENN: So do you have them up on the front page or some place where it's easy to access?

UPDIKE: Yeah, absolutely.

GLENN: Tell people how to get there.

UPDIKE: If you go to Consource.org, we have a top 10 list of founders quotes, gun quotes on Consource and in about two hours, maybe less, we'll have all of the quotes of the founding fathers that were mentioned in the Supreme Court today that are also available on Consource and eventually look up all those others for being quoted.

GLENN: That's Consource.org. And really if you've never used it before, we just stumbled onto you in the last year. It is really, really tremendous and you can find the words and the letters and the notes back and forth. Everything that you might -- that might help you enlighten yourself on what our founding fathers really meant and what they were really talking about at Consource.org. Lorianne, thank you very much. I appreciate your time.

UPDIKE: Thanks so much, Glenn.

 

 

GLENN: This is our comparing John McCain and Barack Obama's policies to the words of the founding fathers, and Lorianne Updike is on phone. She is from the constitutional sources project and Lorianne, you guys have been instrumental in helping us put this together, and I can't tell you how much I appreciate it and how great your service is. Tell me a little bit about what you guys do.

UPDIKE: Well, Glenn, we've created the first free fully annexed online library of constitutional sources. Essentially right now it's the founders' documents and how they relate to the Constitution. And we've done this so that everybody from the sixth grader to the Supreme Court justice can have access to our founders.

GLENN: Okay. And the amazing thing is if you are looking for -- because you can read and study the Constitution, you know, all you want but when you put it into context and you see the writings and the words of our founding fathers and what got them to write the actual words in the Constitution, it takes on a whole different flavor, doesn't it?

UPDIKE: That's right. You begin to see history unfolding before your eyes.

GLENN: So how do people use your service?

UPDIKE: Well, it's free. You go to www.consource.org. Anybody can get on. There's a couple of ways to get on. We've, of course, got a Google search. We've put things into collection for historians and we actually have a legal index for attorneys and those interested in making policy so that they can see every single clause of the Constitution and the documents that relate to it. Of course, you know, we have certain number of documents on the site and that's always growing.

GLENN: And your goal is to have everything the founding fathers ever did electronically available.

UPDIKE: Well, Glenn, it's not just the founding fathers. We're starting with article 1 and going all the way to amendment 27 which was passed in 1992. So our goal is to have all of the sources of the Constitution, reconstruction era amendments, you know, women's lib, right to vote, prohibition. But we also are starting to go back to antiquity. Some of our newest documents on this site are our constitutional precedents, things like the magna cart a, the Mayflower Compact, the Articles of Confederation -- excuse me, the --

GLENN: Confederation?

UPDIKE: Confederation. One of the newest collections we're adding are drafts of the Constitution. Most people don't know but there was an internal publication of the Constitution on August 6th of 1787 during the Constitutional Convention and all of the delegates to the Constitution got drafts that they wrote their own notes on. There's one at the Library of Congress that Washington's written his own notes and the American Philosophical Society in Philadelphia has Benjamin Franklin's and that's one of the reason why I think some of the importantness of this day and age of the Internet and Web 2.0 is that these things are everywhere. We found articles and manuscripts in Europe. There's hundreds and hundreds and hundreds of archives that have these documents and sometimes they're in attics. So it's only online that they can all be collected into one place.

GLENN: That's fantastic. Well, I so appreciate it, Lorianne. And you guys are actually writing kind of a summary of what each of these issues are for Fusion magazine, correct?

UPDIKE: That's correct, yes.

GLENN: And I can't tell you how much your staff and everybody involved in this month's Fusion has helped us out and how much it means to us and I think it really will make a difference and I thank you so much for it.

UPDIKE: Well, you're welcome. It's so wonderful to hear when I talk to your staff that they had already found consource on their own and it had been helpful.

 

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