Is the Second Amendment Finally Becoming Recognized as Part of the Constitution? Voices from the Courts

Sanford Levinson* As every constitutional lawyer knows, the "working matter" of constitutional law scarcely embraces the entirety even of the notably short United States Constitution. No contemporary lawyers concern themselves with letters of marque and reprisal1 or the quartering of troops in private homes.2 To a significant extent, what counts as "working matter" is a function of Supreme Court decisions. For example, litigation based on the "privileges or immunities" clause of the Fourteenth Amendment3 basically came to an end following the evisceration of that Clause in the aptly named Slaughterhouse Cases.4 For most practicing lawyers, the Second Amendment5 is similarly absent from their professional radar screens, not least because the Supreme Court has basically ignored, at least since its 1939 decision in United States v. Miller,6 the fact that it exists as part of the text of the Constitution that is presumably authoritative for the Court. As I have written elsewhere, "[t]he Supreme Court has almost shamelessly [and shamefully] refused to discuss" the meaning of the Second Amendment.7 Although, no doubt, this judicial silence triggers most dismay among those who view themselves as "pro-gun," the most prominent of which are members of the National Rifle Association (NRA), the dismay should also be felt even by thoughtful proponents of gun control. The NRA, of course, is dismayed by the standard interpretation of Miller, that Congress has plenary power to regulate guns,8 which it views as a profoundly wrong reading of the Constitution (and perhaps of Miller itself) that ought to be corrected as soon as possible. It is, presumably, similarly upset by the fact that the Second Amendment is one of the very few parts of the Bill of Rights that the Court has most definitely not been treated as "incorporated" against the States, even though the last full consideration of the application of the amendment to the States took place in 1875, long before the Court incorporated any part of the Bill of Rights against the States.9 But even proponents of gun regulation ought to recognize that our polity has been poisoned by blithe dismissal by members of the legal elite-or at least that portion represented in most law schools and on the federal judiciary-of arguments made by pro-gun citizens, who might justifiably feel that they are treated as marginalized figures whose arguments are almost literally beneath notice. Not to put too fine a point on it, it is insulting to treat Miller as the "last word" in interpreting a part of the Bill of Rights, given the conceptual revolutions that have occurred relative to almost all other parts of the Bill of Rights since 1939.10 I dare say that no other 1939 case (or, even more certainly, no other case written by the egregious Justice McReynolds), is relied on so often by political liberals as providing a definitive statement about an important constitutional norm. The point of my own Essay, The Embarrassing Second Amendment, as I have tried on occasion to explain to journalists who want me to take a strong substantive position, is that this wooden reliance on Miller, coupled with a refusal to confront seriously the arguments made by such thoughtful opponents of federal regulation of guns as Senator Orrin Hatch, is fundamentally disrespectful.11 Part of what "due process" involves is a genuine dialogue with the citizenry, by which courts evidence a willingness to listen to, even if they do not necessarily agree with, arguments about issues that go to the heart of our constitutional polity. One should not be naive enough to believe that the Court would really be able to settle the issue of guns in American society were it to take a case and render a decision, any more than it has stilled the debate about abortion, affirmative action, or any other major issue that divides our polity. But at least with full ventilation of the various arguments, the losers might feel that they were finally being taken seriously. …