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How Does Heller Fit Into a Con Law Syllabus?

By on June 20, 2019 Categories: ,

Jake Charles’ post yesterday noted that a great many foundational cases in the constitutional curriculum—Lopez, Printz, Curtiss-Wright, and Cruikshank, to name a few—involve gun laws. Of course, that doesn’t mean that they’re best understood as firearms law cases, or that the subject matter of the laws had much to do with the constitutional holdings (though perhaps in Curtiss-Wright it did). But Jake’s post does help illustrate some of the ways in which firearms law intersects with other areas of doctrine, even if does so sub silentio.

I suspect that for most law students, Heller serves as the first explicit introduction to firearms law in general and the Second Amendment in particular. But I’m not at all sure of how it’s typically taught. Based on a quick review of a few con law casebooks, I see at least a few possibilities.

First, and seemingly most common, Heller can be used to teach different methods of constitutional interpretation—a way of understanding the differences between originalism, non-originalism, and so on. Long before Heller was decided, Eugene Volokh wrote a nice piece on how the Second Amendment could be a used as a “teaching tool” in that way, and the same basic approach still basically works.

Some case books present Heller in this fashion, even putting it among the first cases assigned—right up there with Marbury and McCulloch. I’ve often taught Heller that way myself, and I can certainly see—and testify to—the benefits. It’s an important issue, easy to orchestrate a class discussion about, and opens up lots of interesting and important issues regarding interpretive theories and the nature of constitutional rights and structure.

Of course, there are some downsides as well. Starting with perhaps the most thoroughgoing self-consciously originalist majority opinion in the Supreme Court’s history can mislead students into thinking that originalism has always been (or is even now, though my colleague Steve Sachs might disagree!) the dominant mode of constitutional interpretation. And I frequently find it hard to teach the Scalia-Stevens opinions, since weighing the historical evidence—as in any originalist debate—requires familiarity with a huge range of sources and texts.

If not as an exercise in interpretation, it seems a lot harder to fit Heller into a con law syllabus. After all, most casebooks and courses don’t seem to teach individual rights besides the Fourteenth Amendment and sometimes the First.

In fact, it seems that the second most common way the Second Amendment appears in con law courses is as a way to teach incorporation. In casebooks that take this approach, McDonald is the lead case, appropriately enough, and the foregrounded issues are about Due Process, Privileges or Immunities, and the like.

To be clear, I think that Heller is a great case to teach in con law—not just because the Second Amendment is important, but because it can be used to introduce so many crucial and trans-substantive constitutional issues. The primary challenge, I imagine, is in figuring out where to put it on a syllabus. We’ll be blogging a bit more about that, and about teaching firearms law courses, throughout the summer.