Our Strange and Vexing Second Amendment

7 Dec

When it comes to gun ownership and gun control, I run the gamut from libertarian to disinterested. In the abstract, if we banned gun ownership (switching to some form of European model) tomorrow, I wouldn’t really care that much. If you received a free M-16¹ with a purchase of $50 or more from Wal-Mart (or better yet, Target), I’m not sure that I’d care much either. In practice, if the government ever seriously tried to constrain gun ownership–absent some sort of broad political mandate–I’d take serious issue with it.  Simultaneously, I’m for sensible gun control policy. But I had never really questioned the idea that the Second Amendment was about some sort of individual right to own a gun. So I was surprised to learn this about this comment from the late conservative justice Warren Burger:

Burger answered that the Second Amendment “has been the subject of one of the greatest pieces of fraud– I repeat the word ‘fraud’–on the American public by special interest groups that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all. “

Cass Sunstein speculates that the sweeping interpretive change of the Second Amendment might be due to an informational cascade:

Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer — at least if they trust those others. On this view, the apparently supportive views of “liberal academics” — including Sanford Levinson, Akhil Amar, Lawrence Tribe — have been crucial in legitimating the individual rights position.

The Ambrosini Critique thinks that this “expert consensus” matters less on constitutional matters because of the influence (or direct action) or democratic actors. I tend to think that judges and politicians have a greater effect on constitutional  matters because their opinions form the basis of practical changes to said law, as well as legitimizing underlying (or even marginal) beliefs of interests groups or the population at large. The overall effect is a sort of positive feedback loop; politicians are drawn from constituencies favorable to a “individual rights” reading of the Second Amendment, which in turn spurs the constituency on to greater advocacy or at least the feeling that their opinions are conventional (or “common sense”).  Interest groups (like the NRA) help provide the foundation–and welcoming political environment–that makes this political reinforcement possible (i.e. they help push liberal scholars like Levinson, Amar, and Tribe to somewhat contrarian liberal readings of the Second Amendment by making it seem as if there’s a strong social grounding–and thus legal case–for an individual rights interpretation. By co-opting the likely opposition, Second Amendment advocates make support for individual rights seem like a forgone conclusion).
¹ To be honest, I’d prefer this gun, if only because it looks cool and an Austrian guy I know used one during his military service while I was writing papers on Huckleberry Finn.  Oh, and he now has a job at some major Austrian newspaper. Some guys have all the luck.


One Response to “Our Strange and Vexing Second Amendment”

  1. Mike Hansberry December 15, 2007 at 1:34 pm #

    Poor Warren Burger, he could not forsee the information explosion that is the internet. He could not understand that in just a few years every Joe would have access to a law library in their own homes. So he could not know that the people would be able to read the original source documents for themselves and would not have to rely on unchallenged pronouncements from authority.

    But what is Cass Sunstein’s (The Most Mysterious Right) excuse? Hasn’t he figured out that we can all read Bliss, Nunn, Aymette, and the other early court cases for ourselves? Or that we can all read the variuous right to keep and bear arms provisions for the earliest state constitutions in 1776 to the present, and the many pronouncements by the founders and early commentators on the right to keep and bear arms?




    Sunstein’s selective reading from Aymette, and complete avoidance of Bliss and Nunn, simply reinforce the notion that one can not trust “academics” to tell the whole truth.

    What Sunstein did not say about Aymette was that the right to keep and bear arms in the Tenn. constitution was interpreted by the Tenn. Supreme Court to belong to “every” of the free white males, not merely those serving in the militia. And this despite that fact that, as Sunstein correctly pointed out, the court read “bear arms” as having an exclusively military meaning and after determing the purpose of the Tenn. rkba provision to be only for the common defense.

    Had Sunstein bothered to address Bliss v. KY or Nunn v. GA , he would have had to admit that the understanding of the right to keep and bear arms was at that time understood -at least by those early state courts in Bliss and Nunn -to be as broad an individual as the proponents of the Standard Model claim today. And if he dared to discuss further cases he might have exposed the fact that the interpretation of the right to keep and bear arms in state courts expanded from the narrow scope in Aymette and contracted some from the extremely broad scope of Bliss so that the most common result was something close to today’s Standard Model.

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