Foreword: The Second Amendment as Ordinary Constitutional Law

by Glenn Harlan Reynolds

Just about twenty years ago, the Tennessee Law Review put together a symposium issue on the Second Amendment. For its time, that was a bold step: Second Amendment scholarship had been almost entirely nonexistent for decades, and what little there was (mostly written by lobbyists for gun-control groups) treated the matter as open-and-shut. The Second Amendment, we were told, protected only the right of state militias (or as former Chief Justice Warren Burger characterized them, “state armies”) to possess guns. Lower court opinions were largely in agreement, and the political discussion, such as it was, generally held that anyone who believed that the Second Amendment might embody a judicially enforceable right for ordinary citizens to possess guns was a shill—probably paid—for the NRA.

Once published, that symposium issue achieved great currency—it is surely one of the few, if not the only, law review symposia to be reviewed in the New York Review of Books—and, over time, things have changed. Since the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. Chicago, the Second Amendment has gone from something outside the mainstream of constitutional discussion—in Sandy Levinson’s characterization, the “embarrassing” Second Amendment—to something very different. Now that the Supreme Court has nailed down the old question of whether the Second Amendment protected any sort of right at all, the questions that arise seem a lot like those addressed by courts in other constitutional contexts.

In this Foreword, I will briefly survey the history of the Second Amendment debate, culminating in the Supreme Court’s decisions in Heller and McDonald. I will then discuss a few subjects likely to be of future importance. I will conclude with a few thoughts on how this issue relates to other constitutional debates.

 

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