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