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, 5, 6, 7.

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.

A ruling in favor of the individual rights view does not accomplish much more than expand that right to the handful of states that do not currently have their own provisions. A ruling against the individual rights view won’t change the fact that we are a society inundated with hundreds of millions of guns, right or no right.

One perspective on what is – or is not – at stake in Heller is gained by comparing the gun control laws of states with constitutional guarantees for an individual right with those states without such provisions. I ran across a table recently that listed the gun control laws by state. Most states had essentially the same array of laws: bans on possession by felons and minors, bans on sawed-off shotguns and machine guns, criminal penalty enhancements for crimes committed while possessing a firearm, basic permitting or licensing for guns, etc. Of course, there was some variation: most states permit concealed carry but a few do not. The similarity between the gun control laws in right-to-bear-arms states and non-right-to-bear-arms states was striking, leading one to suspect that the existence of an individual right to bear arms does not lead to significantly different gun control regimes.

Why would this be the case? Because the vast majority of gun control laws are reasonable measures designed to enhance public safety by reducing common, easily identifiable risks associated with guns. Even under the right to bear arms, such laws should be upheld. The reasonableness of our gun control laws as a general matter may be largely due to the political strength of the gun lobby and pro-gun voters. Gun rights proponents have long been able to use their political influence to water down the most burdensome types of gun control proposals. Over the past twenty years, gun proponents have even managed to gain numerous new protections for firearms, including a dozen new constitutional amendments guaranteeing an individual right to bear arms and dozens of new state laws permitting concealed carry. Yet, gun proponents remain eager for victory in Heller. They want the Supreme Court to affirm their view of the world, even if they are already successful in achieving favorable legislative outcomes without a Second Amendment right.

To be sure, Heller could have some important practical effects. But most of the impact is going to be the result of the standard of review the Court adopts. If the Court adopts a strict scrutiny or similar standard, the practical effect will be to create a tidal wave of litigation from state and federal prisoners challenging their convictions for gun crimes. Every state gun control law already upheld under state constitutional law may have to be reconsidered under the new standard. Courts will invalidate some gun control laws and some states will be discouraged from adopting new laws. If, however, the Court adopts a standard consistent with the universal choice of state courts – the reasonable regulation test – then the practical effect on gun control laws will be minimal. Only especially burdensome laws will be called into Second Amendment question.

I wonder if the Second Amendment is equally tied up with the identities of those on both sides of this culture wars. Clearly, for many gun rights advocates, the Second Amendment is central to their identity and any affront to the right to bear arms is taken personally. I discovered this the hard way. When I first began arguing for a reasonable regulation standard for the Second Amendment, my inbox quickly filled up with hate-filled screeds asserting my obvious stupidity, ignorance of history, and unfitness to teach law. No one was inspired to such passion when I wrote about the early history of federal campaign finance law. Guns, and the Second Amendment, I discovered, are different.

For many on the pro-gun control side, however, gun control is a simple policy matter and not a constitutive aspect of their identities. Guns are unusually dangerous and are used in especially harmful ways, such as mass school killings, gang activity, and youth suicide. Guns need to be controlled so that some of these devastating social ills can be minimized. Gun control advocates don’t really care if the Framers believed in a right to bear arms or not. Instead, guns are a matter of public health and we need to limit their damage.

One indication of the variation between gun advocates and gun control proponents is the likely response each might have to an unfavorable ruling in Heller. If Heller rejects the individual rights view, many have forecast a serious backlash by the pro-gun community. Some have predicted the effect might even swing the upcoming presidential election towards the Republican candidate. Yet no one expects that gun control proponents will mobilize in a similar fashion should Heller recognize an individual right. Gun control advocates don’t identify with the Second Amendment in the same way. For them, this is a policy matter, not a personal one.

This all raises the question of the likely outcome of Heller. Mark, what do your tealeaves reveal to you about how the Court will rule?