Prepping the Court on the Second Amendment
on Aug 10, 2007 at 7:02 am
ANALYSIS
In less than a month, lawyers for the city government in Washington, D.C., will file a new appeal to the Supreme Court asking the Justices to try again — but for the first time in seven decades — to tell the Nation what the Second Amendment means. Does it give Americans a personal right to have a gun, for private use? Is it only a guarantee that the National Guard will have weapons when it needs them to keep order, in the way that old-time militias supposedly did? Is the “right to keep and bear arms” an individual, or a collective, right?
There has been a spurt in new literature on the Second Amendment, especially from the academy, arguing both sides with points drawn from history, social science, constitutional theory, good (or bad) public policy, and several other categories of learning. Whether the Supreme Court will be willing to wade into this new debate any time soon may well depend upon its reaction to the coming petition for review in District of Columbia v. Heller, due at the Court by Sept. 5. The lawyers on the other side of the case share the city’s lawyers’ desire that the Court hear the case, and very likely will act swiftly to tell the Court so in their initial filing. Still, the Court may not reach the case for its initial reaction until after the new Term opens on Oct. 1.
When the case goes to Conference, the Court could be better prepared to react if it first took the time to read a book that is due out on Oct. 1. It is a cautionary tale, as told by its title and sub-title: “Out of Range: Why the Constitution Can’t End the Battle Over Guns.” It is by Mark Tushnet, longtime constitutional scholar at Georgetown, now teaching at Harvard. A crisp 136-page read, the book is being published by Oxford University Press as the third entry in its series on “Inalienable Rights.”
Despite one possible implication of its title, this is not an argument that the Court should decline to rule on the Heller case and the scope of the Second Amendment. But it is a useful reminder that the rift in American public culture over gun rights vs. gun control is so deep that it would not be resolved, no matter how the Court were to rule, by a new definition of constitutional meaning. .The reason, simply stated, is that the Second Amendment is a ground that both sides want to conquer in the culture wars, and the battle has much more to do, according to Tushnet, with “how we understand ourselves as Americans.” There will be no answer to that ultimate question, he notes, “because we are always trying to figure out who we are, and revising our self-understanding.” So, he suggests, “the battle over the Second Amendment will continue.”
Tushnet, who has a special capacity for using social science data (sometimes numbingly dull, even in his capable hands) to help inform constitutional law, ultimately comes down to a conclusion that America will never be able to do much effectively about controlling or reducing violence until it is able to put aside its unending culture war over the Second Amendment. (This point is made primarily in Chapter 4, “Gun Control and Public Policy” — making that the real heart of the book, even though that is the least readable chapter, in literary style).
Here, from his introduction, are a couple of his observations on this fundamental point:
“…[T]he evidence [explored in Chapter 4] seems pretty clear that any gun-related policy likely to survive a political process deeply affected by the culture wars will not do much to reduce violence…[W]hen gun control becomes politically important, a battle in the culture wars occurs. Even when advocates of gun control win such battles, they typically find it difficult to enact or sustain strong gun-control policies….Take the issue of gun control off the political agenda, and those interested in reducing violence might win more elections — and then enact anti-violence policies other than gun control that might actually accomplish something.”
The most engaging part of this book — and it is scrupulously fair to both sides in the Second Amendment debate — is the examination of the competing understandings of what the Amendment does mean, or should. Tushnet finds that the arguments pull first one way, and then the other. Those chapters — 1 to 3 — illustrate one point with absolute clarity: if the Supreme Court now takes on the Second Amendment, its task will be formidable. Anyone who thinks the answer is easy, Tushnet says, “is blowing smoke.”
