Second Amendment Realism

by David Wolitz

Let me put my cards right on the table: I am not a gun person. I do not own a gun, and the last time I ever touched one was in summer camp in 1983. I also do not believe that the establishment or defense of a Constitutional right to bear arms is particularly important in a decent liberal democratic society. I can imagine—we all know of—decent democratic societies that do not recognize such a right. More specifically, I am not persuaded that this country or its citizens would be worse off if we failed to recognize a Constitutional right to keep and bear arms. On the other hand, I hold no brief against a constitutionally enshrined right to bear arms as long as such a right is, as ours seems to be, reasonably interpreted so as to allow for some public-safety limits on firearm possession.

As a matter of policy, I suspect that American gun laws today are generally too permissive, rather than too restrictive. I am skeptical that gun control legislation can substantially reduce the amount of gun violence in our country. But I am even more skeptical that increasing ordinary citizens’ access to guns would substantially reduce gun violence in our country. Sadly, I am afraid we do not know how to reduce the appalling level of fatal gun violence we suffer in this country, levels that are off the charts for a country of our affluence.

In any event, very restrictive gun control proposals are just not popular enough to be widely enacted throughout the country, so it is ordinary democratic politics—not Constitutional law—that does most of the job of protecting people’s access to guns. In fact, before 2008, ordinary democratic politics did all of the work of protecting gun rights at the federal level.

Now, having set out my own general views about gun control and gun rights, I want to make two broad analytical points. The first is about the relationship, or lack thereof, between the Second Amendment itself and the development of Second Amendment doctrine. The second point is about what role we, as law professors, can and ought to play with respect to the development of Second Amendment doctrine.

Glenn Reynolds writes in his Introduction that, post-Heller and post-McDonald, the “Second Amendment is now ordinary constitutional law.”  I agree with that statement. And what it means is that the development of Second Amendment jurisprudence and Second Amendment scholarship will now suffer all of the defects that come along with the practice of ordinary constitutional law—including, but not limited to, significant and irreducible doctrinal indeterminacy, results-driven reasoning by judges and academics, judicial self-aggrandizement, centralization of decision-making in Washington, DC, and increasing left–right socio-political polarization. All of these factors tend toward a decrease in the legitimacy and prestige of the Supreme Court in its Constitutional decisionmaking capacity, and relatedly, a decrease in the legitimacy and prestige of constitutional law as an academic endeavor.

In this Essay, I will focus on the implications of doctrinal indeterminacy because the fact that existing authoritative sources—such as Constitutional text and Supreme Court precedent—cannot dictate the answers to undecided Second Amendment questions should chasten both judges and academics as they set out to develop and critique new Second Amendment doctrine.

 

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