Rooting Meaning in History and Tradition Imposes “Embarrassing” Limitations on Constitutional Vitality: Reflections for LevinsonFest

Guest Blogger

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. 

Renée M. Landers 

I am honored to take part in this tribute to someone who has achieved iconic status in the Pantheon of constitutional law scholars. While I mostly lurk and only occasionally engage, the discussions Professor Levinson initiates and pursues--with seemingly endless energy and unlimited time—on the AALS constitutional law professors’ list are sources of information and insight that probe the raw edges of disagreement about constitutional analysis and debate. For these efforts to engage colleagues, I am also grateful. 

I am still a bit puzzled by the invitation to participate in the LevinsonFest on the subject of the Second Amendment as I have mentioned it in writings only in passing. Despite this puzzlement, I decided to accept the invitation and to approach the subject from the perspective of health law and policy—one of the other areas in which I teach.

First, by way of background, I should say something about me and guns. My father, who was black, was a career enlisted soldier in the United States Army and is a decorated veteran of both Korea and Vietnam. When he was away, my mother, who was white, used to sleep near the bayonet that he left at home. Her father was a farmer in Illinois where we spent a lot of time when I was young. My grandfather had two shotguns which rested against the wall near the back door. My father used them for hunting when he was on leave. I saw my grandfather use the butt of one of the guns to kill a very long snake that made its way to the walk connecting the house to the livestock pens and the barn. Otherwise, the guns received no attention from anyone in the household or from visitors. I grew up in Springfield, Illinois, distinctly on the wrong side of the tracks. Abraham Lincoln departed from the station adjacent to these tracks to travel to Washington to take office as President. Our house was located in an integrated neighborhood in transition. 

The last time I wrote directly about guns was for my writing class during my first year of college. The writing instructor assigned us to read Robert Sherrill’s Saturday Night Special and to write an essay about the issues it raised on the easy availability of cheap firearms. I wrote about the teenager who lived next door to us who was shot and killed while trying to protect his mother from her boyfriend’s abuse. It was my first direct experience with gun violence involving someone I knew. 

Now I live in a suburb close to Boston, Massachusetts, and work at an educational institution in the heart of the city—one block from the State Capitol Building. Like many major U.S. cities, Boston has a gun violence problem—afflicting communities of color most acutely. Massachusetts also has among the most stringent gun regulations in the country and the rate of gun deaths overall is low. For example, based on Centers for Disease Control and Prevention data, Massachusetts had 3.6 gun deaths per 100,000 people in 2016. In comparison, New Hampshire’s gun death rate was 9.9 per 100,000 people, and the top three worst states for gun deaths in the country—Alaska, Alabama, and Louisiana, all of which have loose gun laws—each had more than 21 gun deaths per 100,000 people.[1] In 2020, Massachusetts had the second-lowest gun death rate in the country, and exported crime guns at the fourth-lowest rate based on data from the Giffords Law Center to Prevent Gun Violence. 

Meanwhile, mass shootings in the United States have caused at least 1,000 deaths and 1,5000 injuries during the last four decades. While highly visible, these shootings account for less than one percent of all firearms deaths annually. Gun violence is now the leading cause of death of children ages 1-19.[2] Everytown for Gun Safety reports that to date in 2022, almost 200 children have unintentionally fired a gun they found, resulting in more than 80 deaths.[3] Public health scholars are now beginning to study more deeply the population health impacts of gun violence and policy levers that might prevent or address them. 

At the university where I work, the university police do not carry firearms. Several times in recent years, the police have advocated for the ability to carry firearms, and I have spent a lot of time and effort attending community meetings and responding to surveys arguing against a change in the policy. The school is located just blocks from a Boston Police Department station, and the people advocating for the change could not articulate any threat to which the firearms would be responsive. Additionally, the costs of security would increase substantially—officers would need training in the use of weapons and in exercising judgment on when to use them; insurance costs for the university would increase because of the potential liability from injuries resulting from accidents or misuse of the firearms. One less than persuasive rationale for arming the force seemed to be that it would help advance the careers of the officers by making them more employable in other law enforcement jobs. 

The TSA reported recently that the number of guns seized at airports this year is on a record-breaking pace. Already this year TSA has confiscated 4,600 guns. In all of 2021, TSA seized 6,000 guns. I am assuming that TSA may not even be spotting all the weapons people are carrying into airports and that some even make it onto commercial flights. One of the weapons seized recently at Boston’s Logan Airport was a single-shot gun cleverly disguised as a pen. Meanwhile, the federal government erects barriers to using federal funds to study gun violence. See, e.g., Renée M. Landers, Mischief with Government Information Policy, 94 Chi.-Kent L. Rev. 593, 597-98 (2020). The lessons of all the studies seem to be that more guns do not make the community safer. 

According to the opinions of Justices in the majority in New York State Rifle & Pistol Association v. Bruen, these contemporary effects of the ubiquity of firearms are not considerations in an analysis of what restrictions are constitutionally permissible. The Court’s selective use of history and tradition in interpreting the Second Amendment are the only considerations. This reliance on history and tradition is similar to the methodology the Court used in Dobbs v. Jackson Women’s Health Organization in which the Court overturned Roe v. Wade and Planned Parenthood League of Southeastern Pennsylvania v. Casey. A reliance on history and tradition, coupled with the skepticism the Court’s current conservatives harbor about the role of governments in responding to public health crises--as evidenced in the cases involving requirements for vaccination and testing alternatives, mask requirements, and restrictions on public gatherings as well as efforts to address climate change--render governments powerless to tailor responses to contemporary problems. The cases go on at length about the liberty embodied in concepts such as “the right to bear arms,” “the right of the fetus to be carried to term and be born,” “the right not to purchase health insurance,” and “the right to be free from a vaccine” but say precious little about the rights of the rest of us to go about in public without out fear of being the victim of gun violence, the health of women during and after pregnancy, the community interest in making health care available for all at a more predictable cost, or the right of the community to be protected from infectious disease. As Dahlia Lithwick wrote in Slate after hearing the oral arguments in the first Affordable Care Act case, NFIB v. Sebelius, the Court seems to be concerned with “the freedom to live like it’s 1804.” 

Justice Jackson’s much cited concurrence in Youngstown Sheet & Tube Co. v. Sawyer, recognized the futility of resting determinations of government powers on the vision of the Framers and history and tradition: 

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from the materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected resources on each side of any question. They largely cancel each other. 

343 U.S. 579, 634-35 (1952) (Jackson, J., concurring). 

I am not making the argument that all private ownership of guns should be prohibited, but just that the Court’s expansive interpretation of whatever the right is that the Second Amendment protects goes too far. Even Justice Scalia in the Heller majority decision stated quite definitively that the right conferred by the Second Amendment is not unlimited and that restricting the types of weapons that can be owned and regulating the places where weapons could be carried are permissible. What is the purpose of private ownership of automatic weapons, silencers, large-capacity magazines, and ghost guns? Reasonable restrictions on gun ownership and possession can sit comfortably with the idea that citizen access to guns is a necessary hedge against community violence or government oppression. 

The oppression that I fear now is the intimidation of the Cliven Bundys who used arms to commandeer access to public lands, the armed protesters in Charlottesville who want to silence people advocating for racial equality, the mob—some participants of which were armed—who invaded the Capitol and sought to disrupt government functions on January 6, 2021, the demonstrators seeking to “counsel” patients entering reproductive health care facilities or vigilantes pursuing people suspected of being involved with abortions or birth control, and the armed participants in meetings of local school boards, public health commissions, or land use regulators. In recent years, two members of Congress have suffered serious injuries from assaults with firearms, and the threats of violence are increasing.[4] These threats to the ability of the rest of us to exercise our First Amendment and other rights because of the casual and unregulated presence of weapons is what I fear. The Supreme Court must also have that fear because of the extended perimeter it created around the Court beginning with the leak of the Dobbs draft and the umbrage it takes at the presence of demonstrators seeking to get the attention of members of the Court. The Court, too, has to live with the situation it has created for the rest of us. 

So, while I do appreciate the contributions of scholars to the debate over the meaning and impact of the Second Amendment, I think theory that is indifferent to these harms does not give the Constitution its due. I have not even addressed linguistic arguments that the provision does not mean what the Court has said it means in Heller, McDonald, and Bruen. See What Does America’s Second Amendment Really Say: Who Is Right and Who Is Wrong About the Bearing of Arms, The Economist, Nov. 16, 2017. In McCulloch v. Maryland Chief Justice Marshall wrote, 

[W]e must never forget that it is a constitution we are expounding. . . . 

Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done, by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. [To do otherwise] would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. 

17 U.S. (4 Wheat.) 316, 407, 415 (1819). 

By resting the meaning of provisions like the Second Amendment in history and tradition, the Court is depriving the Constitution of the vibrancy the Framers recognized as necessary for an effective government for the ages. 

Renée M. Landers is a Professor of Law and Faculty Director of the Health and Biomedical Law Concentration and the Masters of Science in Law: Life Sciences program at Suffolk University Law School. You can contact her at rlanders@suffolk.edu.