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Feelings, Facts, and Firearms: Teaching the Second Amendment

By on July 9, 2019 Categories: ,

The fact that guns tend to inspire very strong feelings, especially in Americans, makes the experience of teaching firearms law both a pleasure and a challenge. On the one hand, student enthusiasm for subject matter is always gratifying; at the same time, intense emotion can sometimes be at odds with reasoned discussion and critical reflection.

My approach to teaching firearms law is to address this tension head on: to acknowledge the attachment and fear associated with guns, as well as to note the unique status that the Second Amendment enjoys in American culture. This includes examining the religious-like fervor the Second Amendment tends to inspire and how it is often treated more as an article of faith than a legal text. This is an example of what I call “constitutional fundamentalism”: like religious fundamentalists, constitutional fundamentalists interpret their sacred texts in selective, self-serving, and rigid ways. Self-identified Second Amendment supporters frequently base their interpretation of the law largely on intuition and emotion and characterize those who disagree with them as unpatriotic or heretical.

My seminar accordingly focuses on the rise and influence of Second Amendment fundamentalism, with particular emphasis on the role that the National Rifle Association and the firearms industry play in shaping the law, policy, and public understanding of guns. The seminar focuses on case law, legal scholarship, and current events to explore the influence of Second Amendment fundamentalism on the legal and social conceptions of self-defense, harm, and risk. The readings emphasize the role of gender, racial, and cultural identity in gun rights debates, and our class discussions also delve into the impact of Second Amendment fundamentalism on other constitutional rights.

I encourage my students to think about how the Second Amendment interacts with the First – how absolutist interpretations of the right to bear arms both track and conflict with the right to free speech, for example. I ask them to consider how Fourth Amendment doctrine is or should be modified by the continuing expansion of the right to bear arms, on what effects this may have on public safety and policing.

The four writing assignments are intended to provide students with the opportunity to engage creatively with cases and controversies of firearms law. Students complete “reflection papers” on two class readings of their choosing, a largely unstructured assignment intended to get them to think deeply about the aspects that most compel or trouble them. The third writing assignment is to write an op-ed on a controversial topic relating to firearms law, which allows students to try their hand at persuasive writing that is both legally sound and accessible to the general public. After I receive the op-eds, I anonymize them and distribute them to the class for discussion. For their final assignment, students are provided with a summary of a fictional ruling on a Second Amendment issue for which the U.S. Supreme Court has granted review. They are asked to imagine themselves as the Supreme Court Justice tasked with writing the majority opinion in the case. This assignment gives students the opportunity to occupy a perspective of power and influence as they work through the complexities of a controversial constitutional issue. The emphasis throughout the seminar is on separating the feelings from the facts of firearms law, and to encourage students to think beyond the limits of constitutional fundamentalism.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]