Balkinization: The Second Amendment of Things (and Grievances)

The Second Amendment of Things (and Grievances)

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Joseph Blocher

The second chapter of Mary Anne Franks’ exceptional new book, Cult of the Constitution, shows how constitutional fundamentalism distorts debates about gun rights and regulation. In doing so, it offers novel contributions to the increasingly vibrant scholarly literature on the Second Amendment. I’ll focus on two; one conceptual and the other doctrinal. The first is Franks’ focus on the physical instrument (the gun) that is central to the right; the second is what her argument suggests about the future of Second Amendment doctrine.

The chapter is titled “The Cult of the Gun,” rather than “The Cult of the Second Amendment,” and the difference between those framings is subtle but potentially significant. The Second Amendment—perhaps more than any other constitutional right—is centered on an instrument, rather than an activity or status. The Amendment’s verbs (“keep” and “bear”) do real work, but it is the “arm” that gives them literal and figurative force. Subtract it, and the right makes no sense. Of course, other constitutional rights might also protect particular means of their own effectuation: the “press” being an obvious example, at least on some accounts. But even if the difference is a matter of degree rather than kind, the Second Amendment has a notable focus on a particular class of things.

Understanding the Second Amendment as a thing-centered right can have important implications for law and theory—witness the generative debates about property as the “law of things.” In particular, it raises interesting questions about the relationship between the constitutionally specified means (arms) and the underlying end that Heller identifies (self-defense). That relationship is not as straightforward as one might suppose. The right to keep and bear arms is often conflated with a right to self-defense, but the two are distinct—the individual right to self-defense preceded Heller, after all, and doesn’t depend on the Second Amendment. What the Second Amendment adds, per Heller, is a right to have a particular instrument on hand, should the need for such actions—or, on some accounts, other actions like revolution—ever arise. It constitutionally generates a means to an already constitutionally protected end. And the linkage between right and interest is not necessarily as tight as it is in some other contexts: Most self-defense actions do not involve guns, and the vast majority of guns are never used for self-defense. That disconnect is not unique—many speech acts don’t plausibly further free speech values of truth or democracy, for example—but is often elided.

The centrality of the instrument, rather than an action or status (as is the case for many other rights), helps explain the frustrating symmetries of the gun debate, because so many arguments based on instrumental characteristics can be self-negating. As Justice Breyer put it in his Heller dissent, “the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.” Likewise, opponents of assault weapon bans often argue that such bans are pointless because they only forbid cosmetic features like barrel shrouds and telescoping stocks. But that very argument also undermines the Second Amendment case against such bans, unless there is some kind of constitutionally relevant interest in cosmetic features. All sides find themselves feeding ammunition to the others.

This feature of the gun debate is not merely a matter of conceptualism (what does the right mean?), but also a basic point about the gun debate—it’s about guns. And, to return to Franks’ chapter title, that’s why it is important not to lose sight of the “Arms” in the Amendment. As Dan Baum described in Gun Guys: A Road Trip, “It wasn’t so much the Constitution or its authors that gun guys loved; it was guns.” Or, as Australian comedian Jim Jeffries put it, a bit more colorfully: “There is one argument, and one argument alone for having a gun, and this is the argument: ‘F___ off, I like guns.’ …. And there’s nothing wrong with saying, ‘I like something, don’t take it away from me.’”

What does this mean, concretely, for law? While Franks’ primary focus is on the constitution outside the courts, and especially outside the Supreme Court, her account does have important implications for constitutional doctrine. In particular, the Second Amendment provides an unusually useful illustration of how what she calls “victim-claiming” can translate more or less directly into legal rules. This matters not only for the statutory changes that Franks discusses—expansion of stand your ground laws, for example—but for Second Amendment doctrine.

The dominant refrain in gun rights advocacy these days is that the right to keep and bear arms is being treated as a “second-class right.” That assertion regularly appears in op-eds, briefs, and scholarship, and has found sympathetic ears in the judiciary. Justice Thomas in particular has repeatedly asserted it in written opinions, as well as in his first questions at oral argument in nearly a decade. Perhaps most memorably, he recently suggested that the Court was treating the right to keep and bear arms as a “constitutional orphan.”

The second-class right argument is, in many ways, a prime instance of what Franks describes as victim-claiming—“a reversal technique that puts the powerful in the space of the vulnerable ….” As she illustrates throughout the chapter, it is an article of faith for some gun owners that they are a persecuted outgroup akin to a racial or religious minority. Connecting that sense of powerlessness to the second class rights argument, some have alleged that lower courts are engaged in “massive resistance” against the right articulated in Heller, a phrasing apparently meant to invoke Southern resistance to integration after Brown.

It is easy enough to dismiss such comparisons, since it is hard to say with a straight face that gun owners are relevantly similar to the petitioners in Brown with regard to political and social power, or that their interests are not represented in the US political process. Most Americans support the individual right to keep and bear arms recognized in Heller, after all. And although the Democratic primary has featured prominent discussion of gun regulation proposals, most candidates (including those who support regulation) still swear fealty to the “individual” right to keep and bear arms—just as then-candidates John McCain and Barack Obama did in the days after Heller was handed down. The NRA was one of President Trump’s most significant financial supporters, and has by all accounts enjoyed significant White House access. As I and many others have argued elsewhere, these are not the hallmarks of a political process failure demanding an active role for judicial review.

One measure of this political power is that, despite (or perhaps because of) the victim-claiming, even modest, enormously popular reforms like expanded background checks remain unenacted. In fact, existing laws actually protect guns in ways that extend “the right to keep and bear arms” far beyond the right articulated in Heller. Franks explores some of these laws, including the Protection of Lawful Commerce in Arms Act (currently subject of a major post-Sandy Hook lawsuit). In a forthcoming piece, my colleague Jake Charles calls them part of the “Right to Keep and Bear Arms Outside the Second Amendment.”

Of course, as both Franks and Charles carefully note, there is not necessarily a bright line around “the Second Amendment”—all of these developments, in one way or another, make claims on the constitution. But even if one focuses on on court-articulated rules and holdings in Second Amendment cases, it is not hard to see the possible doctrinal impact of the second-class/victim-claiming argument. Until now, the Second Amendment doctrine that has developed in more than 1,000 post-Heller challenges (which Eric Ruben and I describe in this piece, to which Sandy responded here) generally forbids outlier laws like prohibitions on handguns or public carrying, but permits the kinds of reasonable, mainstream regulation that are the focus of most gun violence prevention advocates. That could soon change. And if it does, it seems likely that the forces Franks describes will be the driving factor.

As Franks’ book was going to press, the Supreme Court granted cert in New York State Rifle & Pistol Association v. City of New York (NYSRPA), which will be the first Second Amendment dispute argued before the Court in almost a decade. The stakes of the case have almost nothing to do with the particular New York regulation at issue (which even petitioners describe as unique, and which has been since been altered in ways that seem to moot the case), and everything to do with the methodology that courts use to evaluate Second Amendment claims. If the Court agrees with the NYSRPA petitioners and amici that lower courts and legislators are “drain[ing] Heller . . . of meaning” by systematically disregarding the right to keep and bear arms, the Justices might be inclined to upend the doctrine developed in the lower courts by, for example, applying strict scrutiny across the board.

But the second-class right argument also suffers from some of the same kinds of internal tensions and contradictions as the handgun and assault weapons arguments discussed above. A natural implication of the second-class argument—invoking a kind of equality norm, albeit not the one in which Franks finds the seeds of constitutional redemption—is that all rights are on a par. And indeed one main theme of the petitioners’ argument has been that applying less-than-strict scrutiny to Second Amendment claims would be akin to establishing an impermissible “hierarchy” of fundamental rights. (The suggestion that all fundamental rights get strict scrutiny is false, of course, but that’s an issue for another day.) And yet many gun rights advocates demand not identical or equal treatment, but favored treatment for the right to keep and bear arms. After all, the NRA’s official journal is called “America’s First Freedom.” As Franks notes, Wayne LaPierre himself has said that “some rights are more important to the whole than others” and that the Second Amendment is “the one right that all the others lean on the most.” Maybe Baum and Jeffries were right—it’s just about guns.

As a matter of law, strict scrutiny is not the only option. The most prominent doctrinal alternative to strict scrutiny—one that then-Judge Brett Kavanaugh advocated in a prominent Second Amendment dissent—would evaluate the constitutionality of gun regulations by reference to “text, history, and tradition.” The implications of such a change could be profound, as it would mark a potentially radical departure from the two-part test that has been uniformly adopted by the federal courts of appeal. (Full disclosure: Along with Eric Ruben and Darrell Miller, I filed an amicus brief in support of neither side making this argument at length.) In terms of case outcomes, a properly applied historical test should lead to many of the same results, since gun regulation is a well-established (albeit often underappreciated) fact—Duke’s Repository of Historical Gun Laws includes more than 1,500 pre-1934 laws, and even that number is not comprehensive.

Text, history, and tradition alone are unlikely to provide clear answers to questions like whether a modern AR-15 is a “descendant” of a colonial-era musket. Where those sources run out, Kavanaugh suggested, judges will instead have to reason by analogy, which seems sensible. But although he did not say as much, it seems clear that that’s where all the work is going to happen—the test of text, history, and tradition will in practice become a “test of judicial analogies” or “test of judicial intuition.” Judges will have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago. Is a modern grenade launcher “like” a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 “like” a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness compared to other weapons?

Those may sound like historical questions, but it is hard to avoid the suspicion that the answers will depend on inarticulable intuitions and beliefs—a kind of faith.

Joseph Blocher is Professor of Law at Duke Law School. You can reach him by e-mail at blocher at law.duke.edu

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