This post was prepared for a roundtable on the Second Amendment, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
Joseph Blocher
In 1989, Sandy Levinson published “The Embarrassing Second Amendment” in the Yale Law Journal. It remains the most-cited law review article on the right to keep and bear arms and, while not always described accurately or deployed faithfully, has played a significant role in the development of scholarship and doctrine in the decades since. Writing today from within the scholarly field that Sandy helped create, my hope here is to offer a few broad observations—through the lens of his work—about how firearms scholarship and doctrine have changed.
Other than the publication of Sandy’s groundbreaking article, 1989 was a relatively quiet year for gun rights and regulation. That year, Robert Bork announced his conclusion that the original intention of the Second Amendment was “to guarantee the right of states to form militia, not for individuals to bear arms,” a position overwhelmingly embraced by the federal courts at that time—nearly two centuries after ratification, no federal case anywhere had yet struck down a gun law on Second Amendment grounds. Congress made a few changes to federal gun laws in the mid-1980s, but the Brady Law wouldn’t come about until the 1990s. States, meanwhile, unsurprisingly took different approaches to gun regulation. At least as of 1987, 16 prohibited concealed carry outright, another 26 had may-issue regimes for public carry of concealed handguns (requiring a showing of “good cause” or something similar), and only one state (Vermont) required no permit at all.
It is hard to capture the significance of the changes to the legal landscape since then. In 2008, District of Columbia v. Heller rejected a militia-based understanding of the right to keep and bear arms and made self-defense the “core” of the right. This sparked a wave of litigation and an almost stubborn refusal of the Court to clarify its holding—an era of Second Amendment law that Sandy memorably bemoaned in the spectacularly titled “Too Damn Many Cases, and an Absent Supreme Court.” In the absence of vertical precedent, the courts of appeals coalesced around a two-part framework that combined a historical coverage inquiry followed by, when and if appropriate, some form of scrutiny.
Then the summer of 2022 arrived, bringing with it a dizzying set of developments in gun rights and regulation. Finally ending its Second Amendment silence, the Supreme Court in New York State Rifle and Pistol Association v. Bruen struck down New York’s may-issue requirement (calling it an “outlier”) and adopted a new Second Amendment framework that purports to evaluate modern gun laws based solely on “plain text” and “historical tradition.” Within days of Bruen, Congress passed the Bipartisan Safer Communities Act—the first major federal gun legislation in thirty years. And states continue to experiment, and often diverge, with regard to gun regulation. Twenty have recently adopted “red flag” laws, but twenty have also done away with permit requirements for public carrying—significantly, many supporters call the latter “constitutional carry.”
This is, of course, only a thumbnail sketch of an area of law and politics that demands and rewards much more nuanced consideration. My limited goal here is to ask, broadly, how this new world looks from the perspective of Sandy’s 1989 article. Have scholars heeded his call? Judges?
Sandy’s analysis was largely directed at the legal academy, and especially to members of the legal elite who failed to take the right to keep and bear arms seriously: “It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.”
In some obvious ways, the academy has indeed answered the call. There is, without question, more and better scholarship on firearms law today than there was in 1989. A few years ago I pulled together a few basic charts showing that growth, and I’d wager with confidence that the trajectory looks even more dramatic since then. Sandy noted that “no one recognized by the legal academy as a ‘major’ writer on constitutional law has deigned to turn his or her talents to a full consideration of the Amendment.” Sandy’s own article rendered that observation obsolete, of course, and fortunately the years since Heller have seen increasing contributions by some of the leading scholars in constitutional law. At the same time, the conversation has diversified: more voices, more perspectives, and more issues beyond the militia vs. “individual” rights debate. And while the list of scholars whose primary focus is firearms law remains relatively short, it is growing. One can now get hired and tenured on a law faculty writing largely about guns.
Admittedly, my perspective here is warped, given what a significant place the Second Amendment has in my own “cognitive map” (to borrow a phrase from Sandy’s article, which opens by comparing a mental map of the Bill of Rights to Saul Steinberg’s representation of the United States as seen by a New Yorker). My entry-level job talk paper was about Heller, a case I helped litigate, and I’ve spent much of my career writing on the topic. For the past few years, Darrell Miller and I have co-directed Duke’s Center for Firearms Law, the mission of which is to broaden and deepen the scholarly discussion on the topic. Naturally, then, I’m predisposed to see these developments as exciting and significant. But even controlling for personal bias, I think it’s undeniable that the world of Second Amendment scholarship has changed.
One other data point here is Sandy’s 1989 observation that “[o]ne will search the ‘leading’ casebooks in vain for any mention of the Second Amendment.” Today, Heller is the first case in many constitutional law casebooks. Of course, there is a difference between using the Second Amendment to understand constitutional reasoning and using constitutional reasoning to understand the Second Amendment. And to the degree that the Second Amendment comes up in constitutional scholarship—and, I suspect, constitutional law classes—it is still often as an entry point (or, often, a weapon) in the interpretive debates. I’ve often taught Heller that way, and indeed it (and now Bruen) provides a very useful illustration of various modalities of constitutional argument. But that is a very different enterprise than exploring the doctrine of the Second Amendment as such. My sense is that the scope of the government’s regulatory authority over guns does not fit neatly into constitutional courses any more than free speech does, and that both will continue to be taught primarily as standalone courses.
That might not be a bad thing, but it does raise the question of what doctrine there is to teach. Here, too, things have changed radically since 1989, though not in a way that I suspect Sandy would celebrate. While accepting Sandy’s injunction to take the Second Amendment seriously, the Supreme Court rejected his conclusion that (in his words) “it had almost literally nothing to do with classic ‘self-defense’ and everything to do with a civil republican argument that ‘the people’ as a collectivity were entitled to keep and bear arms for potential use in armed insurrection against a tyrannical government.” It is not Sandy’s style to call out constitutional conclusions as correct or incorrect, but he could not help but observe that “[w]hat united almost everyone who has attempted to analyze Justice Scalia’s opinion is a shared belief that it is an intellectual shambles,” particularly in its essentially unreasoned approval of most federal gun laws, at which point “‘Originalism’ goes out the window….”
I suspect that Sandy regards Bruen as even more shambolic. Rejecting the two-part framework adopted throughout the federal courts of appeals, Bruen purports to rely on just two of the Bobbittian modalities that Sandy employs in his article: text and history. Application of this historical-analogical test will inevitably still require some consideration of contemporary considerations of means and ends (or so I’ve argued, and am elaborating in current projects with Eric Ruben and Reva Siegel), but it will also further distort and obscure the constitutional conversation (to borrow another Sandy-ism) about gun rights and regulation. One hopes, at least, that the lower courts will manage to articulate administrable tests, as they did in the post-Heller era of too damn many cases and an absent Supreme Court.
In 1989, Sandy observed that “most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members.” For some legal scholars, the Second Amendment—as interpreted and applied in Heller and Bruen—remains embarrassing. But the “change the subject” response is no longer so reflexive, and that is all to the good. After all, even the most embarrassing relatives tend to get a seat at the table, even if it takes extra work to make meaningful conversation.
Joseph Blocher is the Lanty L. Smith ’67
Professor of Law and Faculty Co-Director of the Center for Firearms Law at Duke
University Law School. You can contact him at blocher@law.duke.edu.