ACSBlog: The Blog of the American Constitution Society

This week, ACSBlog presents a 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. See parts 1, 2, 3, 4.

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.

It’s reasonably clear how originalism functions in the debates, less clear what to make of it. Obviously, the debates are highly polarized. For non-lawyers, and for many lawyers as well, the starting – and ending – point for discussion is the Amendment’s text. The debates are highly patterned. Gun-rights advocates say, “Look at the text – it refers to a ‘right of the people,’ and that right has to be just like the other rights we have, one held by individuals without regard to their membership in a state-organized militia.” Gun-control advocates say, “Look at the text – it refers to a ‘well-regulated Militia,’ and that phrase has to qualify the right described in the next clause. And, after all, the gun-rights position effectively read the ‘well-regulated Militia’ clause out of the Amendment.” I’m not endorsing either of these views of the text, but just reporting the standard position asserted by each side.

Beyond the text, there is some version of originalism. (I don’t want to get into here the arcane disputes between original meaning, original understanding, original public meaning, original meaning to a reasonable member of the public in 1791. For present purposes nothing turns on which version of originalism one adopts.) The diagnosis of originalism’s prominence in these debates is easy: Both sides think they can win the argument when cast in originalist terms, because both sides think they have not just good interpretations of the relevant history but overwhelmingly good interpretations.

That’s more than a bit curious, because each side basically has to be thinking that the other side is not being intellectually honest. To an outsider like me, what’s striking is how a-historical the arguments really are. In light of the complexity of the historical record, it’s impossible to say that the Second Amendment “has” an original meaning, or that it would have been understood in one or the other way, and so on. Some people at the time would have understood the Amendment to protect an individual right, some people would have understood it to protect a militia-related right. And we have no way of telling how large each of those groups was.

For a historian, that would be enough. But not for lawyers. Within an originalist framework, lawyers have to award victory to one or the other side. The Second Amendment has to have “an” original meaning. But, given the real historical record, “the” original meaning is a lawyer’s construct. Still, that doesn’t explain why advocates on each side are so convinced that they have the better of the originalist argument. Partly, I suspect, it’s what psychologists call “motivated reasoning”: You’re on one or the other side of the debate; it’s natural that you would find that the evidence supporting your side is stronger than that supporting the other side; and, since you’re engaged in a lawyers’ debate you have to award victory to one side, so you exaggerate the strength of the evidence on your side.

Another concern, I think, is again connected to advocacy. Conceding an inch – saying that there might be something to the other side’s interpretation of the historical materials – might be taken as a sign of weakness: You acknowledge strength on their side, they don’t reciprocate, and your argumentative position has been weakened.

In the end, though, I don’t think that this lawyer-focused diagnosis is complete. In my book I point out that the debate over the Second Amendment is one battlefront in the culture wars. Your position on the Second Amendment says something about what kind of person you think you are and what kind of country you think the United States is. In light of the central place the Constitution holds in our national self-conception, framing your arguments – whichever side you’re on – in originalist terms is another way of noting that this is a culture-wars battle.

At least, that’s how I interpret the prominence of originalism on both sides of the debate. I’d be interested in finding out your thoughts. But I’m also interested in your application of the reasonableness test, as it’s been developed in the state courts, to the regulations at issue in Heller. And, if you can, could you comment on how you think the Solicitor-General’s test requiring some degree of heightened scrutiny should apply?