ACSBlog: The Blog of the American Constitution Society

This past week, ACSBlog presented a ten-part conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. The following are brief snippets of the conversation, with links to each blog post.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"
Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning. (more)

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance
No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation? (more)

Part 3. Professor Tushnet: How Reasonable is a "Reasonableness" Standard?
Adam, compromise is sometimes a good thing, but compromises have to give something to each side. And it’s not clear that settling on a “reasonableness” standard of review is acceptable to the gun-rights side of the dispute here. Certainly the advocates reject such a standard, but that’s to be expected. What matters is whether people who support gun-rights will see a “reasonableness” standard as acceptable – or, perhaps more accurately, whether they will do so after the advocacy organizations they listen to describe what the Court (we’re assuming) has done. (more)

Part 4. Professor Winkler: The Reasonableness of Reasonableness Review
Mark, you are surely correct that many gun rights advocates will be dissatisfied if Heller follows the unanimous choice of state courts and adopts the reasonable regulation standard to adjudicate gun safety laws. But this in itself is curious. Where is the outcry in the gun rights community about the state constitutional law on the right to bear arms, which for over a century has used the reasonable regulation standard? Gun rights organizations, which know the state law well, have been satisfied with this doctrine at the state level. In fact, those groups often cite the pervasive recognition of the individual right to bear arms at the state level as evidence of the fundamental nature of the right in American history. (more)

Part 5. Professor Tushnet: Originalist Claims About the Second Amendment on Both Sides of the Issue Are Equally Well-Founded
You’re right, Adam: The role originalism plays in debates over the Second Amendment’s meaning poses a mild puzzle. It’s not quite right to say that the originalist claims are “not well founded,” though. Rather, the problem is that the originalist claims on both sides are about equally well-founded. There’s a good chunk of material from the relevant period that supports the gun-rights interpretation, and a good chunk of material from the same period that supports the gun-control interpretation. (more)

Part 6. Professor Winkler: Applying the Reasonable Regulation and Solicitor General’s Standards
Mark, you ask a good question about how the District of Columbia’s gun laws will fare under the reasonable regulation standard used universally in state constitutional law and the heightened scrutiny proposed by the Solicitor General. The answers are not obvious and it would be no surprise if the Supreme Court in District of Columbia v. Heller upheld or invalidated the District’s challenged gun laws under either standard. (more)

Part 7. Professor Tushnet: Applying the Reasonable Regulation and Solicitor General’s Standards
Casual observation indicates that the Second Amendment is part of our culture wars, but the way it is, I think, is particularly interesting. It turns out that the Second Amendment isn’t really a “red/blue” issue – that is, one that divides Republicans and Democrats – or an urban/suburban/rural issue, although of course there are correlations. Taken as a whole, Americans have a reasonably moderate position on gun policy and the Second Amendment. People believe that the Second Amendment does protect an individual right, and that fairly extensive regulations of that right are desirable. We appear to want existing gun laws enforced, and somewhat more stringent ones enacted. (In terms of our earlier discussion, it seems as if we think that the state courts’ approach to “reasonableness” is about right.) (more)

Part 8. Professor Winkler: Second Amendment Symbolism
No doubt the Second Amendment is a prominent battlefield in the culture wars, as Mark’s posts detail. Indeed, the Second Amendment debate must be cultural in nature because it is almost entirely about symbolism – the weapon of choice in these wars. Whatever right the Supreme Court interprets the Second Amendment to provide, the practical effect of that determination is likely to be marginal. With the people of 42 states already enjoying the private individual right to keep and bear arms under their own state constitutions, most Americans will still enjoy the right to bear arms no matter what. (more)

Part 9. Professor Tushnet: Court Predictions
Ah, reading the tea leaves! Here are the possibilities . . . (more)

Part 10. Professor Winkler: Forecasting Heller
I am inclined to agree with you, Mark, that the most likely outcome is that the Court will recognize a private individual right to keep and bear arms unrelated to militia service. While we know little about most of the Justices’s views on the Second Amendment, five Justices are almost certain to favor of the private right view: Justices Thomas, Scalia, Alito, Roberts, and Kennedy. (more)