Comments on the LevinsonFest Second Amendment Panel

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on the Second Amendment, convened as part of LevinsonFest 2022.

As always, I am grateful to those who organized and then brought to fruition this latest panel, the “Levinsonfest” on guns and the Second Amendment: Richard Albert, Ashley Moran, and Trish Do. And, of course, I am also immensely grateful to H. W. Perry for moderating this panel and to those who participated as contributors to the discussion. I am flattered by the compliments that the contributors direct to my work, but what is most important, by far, is the discussion itself, including, obviously, elaboration of points on which they (and I) disagree with one another. 

I begin with Renée Landers piece for a quite simple reason: More than any of the others, she emphasizes the costs that are attached to a free-wheeling policy of access to guns. Even if guns are not agents that themselves kill people, it is beyond argument that people with guns often kill other people and, perhaps as importantly, kill themselves as a means of committing suicide. In a country (and culture) that sometimes appears to believe that prevention of even one terrorist attack justifies immense costs in terms both of money and deprivations of ordinary liberty, it is at least worth noting the remarkable indifference of much of the public—and certainly the whole of the Republican Party—to the costs attached to offering the kind of capacious interpretation of the Second Amendment instantiated in the recent case of New York State Rifle & Pistol Association v. Bruen. There six justices, through an opinion by Justice Thomas, seemingly constitutionalized a principle of “open carry” of firearms that makes it difficult to limit their presence in public life.

I am increasingly persuaded that Ronald Dworkin has finally found his most avid devotees, in a way that would probably distress him, in the current majority of the Supreme Court. These justices That is, especially Thomas and Alito (as seen most obviously in Dobbs) seemingly view themselves as “Herculean” judges committed first to identifying the singular correct answer to constitutional conundrums and then to imposing it on the country regardless of consequences. That is, after all, what Dworkin told us it meant first of all to be committed to his “right answer” theory of law and then to “taking rights seriously” if the law, properly understood, protected, them. Those tropes certainly run through both Bruen and Dobbs and, no doubt, other decisions that will be forthcoming from the current Court. “Pragmatic” balancing, which inevitably includes attention to the actual consequences along multiple dimensions of any given legal arguments, is certainly a dominating characteristic of the current majority. 

So this brings up two central questions: First, is it true that a Herculean justice, seeking unequivocal “right answers” to the questions posed by the United States Constitution, will feel forced by her oath of office to recognize a strong protection for the “right to keep and bear arms”? But a second question may be equally important and may indeed bear on the answer one gives to the first: Are there genuinely important reasons, imported from “outside” formal legal analysis, that would justify a capacious reading of the Second Amendment or, as I would personally prefer, readings of the Ninth Amendment or the “privileges or immunities” clause of the Fourteenth Amendment? 

Robert Cottrol’s contribution is particularly relevant, for he offers a vigorous defense of a capacious reading of the Constitution based not on support for one or another “internalist” theory of constitutional interpretation, whether “textualism” or “originalism” or “living constitutionalism,” but, rather, on his strong belief that widespread availability of firearms is essential to protecting basic human rights. That is, he is asking us to reflect on the right to bear arms not as an end in itself, but, rather, as an instrumental means to protect other valuable ends. He reflects on a conversation he had several years ago while in France, where he was interrogated by a host at dinner about the American “fascinate[ion]” with guns. In retrospect, Cottrol regrets that he did more vigorously interrogate his host about the latter’s pride in his father’s role in the French resistance against Nazi conquest. “The obvious question in my mind,” he writes, “was wouldn’t the resistance have been an even stronger force, one that would have made the Nazi’s task even more difficult had there been a more robust tradition of arms ownership in France.” It is no coincidence, of course, that Cottrol, with Ray Diamond, has written important articles about the role of access to firearms in allowing newly freed enslaved persons to protect themselves in the defeated Confederate states against Ku Klux Klan terrorism. One of the charges, after all, brought in the great trials against the Klan in South Carolina in 1872 was their attempt to suppress the right of African-Americans to bear arms. 

I have long believed that the best understanding of the Second Amendment has almost literally nothing to do with what we ordinarily think of as a “right to individual self-defense,” which may be protected by the Ninth Amendment, but, rather, is derived from a civic-republican theory that an aroused public might wish to “rise up” (as Lin-Manuel Miranda puts it in Hamilton) in order to resist—or ultimately to overthrow—a tyrannical government. As I noted in my original essay on The Embarrassing Second Amendment, the most interesting bumper-sticker is not “when guns are outlawed, only criminals will have guns,” but, instead, “when guns are outlawed, only the state will have guns.” What is at issue is the degree to which one accepts the Weberian argument that the state necessarily has a monopoly over the means of violence and their legitimate use or whether, instead, one accepts the possibility that “we the people,” viewed as separate from the particular set of institutions called “the state,” might possess both the right to possess arms and, under certain conditions, to rise up in what Locke termed an “appeal to heaven” to resist state tyranny. 

At the present time, certainly, I am not inclined to be sympathetic to those who view the American state as tyrannical and thus justifying potential armed resistance. Thus, along with Landers’s emphasis on the individual costs of free access to firearms, I would also emphasize the increased threat to the American constitutional order posed by the social and political movements represented—and carrying their arms—at Washington on January 6, 2021. But, as argued by Jared Goldstein in his important book Real Americans: National Identity, Violence, and the Constitution, the arguments made by some of the partisans on January 6, lamentable as they might be, are scarcely without root in theories of “popular constitutionalism” and the concomitant duty of “the people” to protect their liberties against an overbearing state. That is, after all, the basic theory of the Declaration of Independence. 

Does the adoption of a “civic-republican” theory of the Second Amendment necessarily support the Court’s decision in Bruen? I would argue not. Raising the general level of anxiety by being forced to confront guns as part of the scene, so to speak, in crowded cities, does not strike me as having anything at all to do with preparing a civic polity to rise up, if need be, against a tyrannical state. I therefore have little difficultly in agreeing with Darrell Miller’s laconic suggestion that Bruen represents a kind of “constitutional gnosticism” untethered by what we formerly viewed as ordinary modes of constitutional interpretation. The current majority’s view of how one determines the existence of binding “traditions” strikes both of us as bizarre, Indeed, it is worth quoting him at some length. The Court is relying on 

            invocations of history and tradition rendered through analogical reasoning so abstruse that the actual justification for any given outcome may remain forever unknowable.  A mysterious doctrine, alienating to the hundreds of millions of people whose lives these decisions affect and inscrutable to all but a few elect who can divine the Court’s cryptic utterances.

 So that natural brings us to Joseph Blocher’s essay, which is in fact concerned with the doctrinal implications of Bruen. Will so-called “inferior” courts, let alone the mass public, be able cogently to “interpret” the majority’s declaration of law, especially given Justice Kavanaugh’s apparent eagerness to portray Thomas’s opinion as less radical than most readers believe it to be. Blocher He accurately cites my disdain for Scalia’s opinion in Heller as “shamb[olic],” even though I support the result, which I believe could easily (and better) have been based on the Ninth Amendment or the “privileges or immunities” clause instead of the specific text or history of the Second Amendment. And Blocher is certainly correct that I have no more intellectual regard for Thomas’s opinion and regard it as “equally shambolic.” I am not encouraged by the fact that even since our Zoom gathering, a New York federal judge has invalidated a state law that prohibits firearms at churches, based on the notion that they are not the kinds of places in which firearms were prohibited in 1791. 

If in fact it is truly rational to fear going to a place of worship because one might be attacked by a mass murderer, then this is a profound and thoroughly dispiriting comment on American society in the 21st century. To my knowledge, there were no such mass murders comparable to Charleston or Pittsburg anywhere in colonial and early Republican America. Constitutional interpretation, even when done by purported “originalists,” is inevitably a comment on how one perceives current circumstances. It is not surprising that in dire times, where the United States is enmeshed in a social psychology conducive to civil war, guns appear attractive as a means of defending oneself against various monsters, individual attackers like Dylann Roof in Charleston, or the American state as envisioned by people like Marjorie Taylor Green. 

Indeed, I believe that Samuel Alito is basically a Hobbesian without Hobbes’s saving faith in an all-powerful state (that would, among other things, certainly control access to firearms). That is, he, and his colleagues in the majority, increasingly invite us to imagine that we are ourselves living in a state of nature that is described as a war of all against all, where we must be constantly vigilant against being attacked by strangers (but also, the evidence suggests, even by family members) who wish us harm and even death. The police are basically useless as a means of protection. Only personal firearms will save us. I do not wish to argue that this is a necessarily “irrational” way of conceiving contemporary America, but no one should confuse it with the more utopian vision of a “city upon a hill” that will provide an inspiration to all who gaze at it because of the ability to achieve a “more perfect union” committed to “establishing justice” and promoting the “general welfare.” Perhaps Alexander Hamilton was correct, in Federalist 6, to say that we should never forget that “men are ambitious, vindictive, and rapacious” and we should organize society accordingly. What guns do, at least for academics, is to force us to ask the most fundamental questions about who we imagine ourselves to be and, consequently, what kind of social order we really envision. 

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.