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Scholarship Highlight: Common Good Gun Rights, Assault Weapon Bans, and Time & Second Amendment Law

By: Andrew Willinger

[The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.]

In a new article forthcoming in the Harvard Journal of Law & Public Policy, Center co-director Darrell Miller evaluates gun rights under a theory of common good constitutionalism and concludes that “common good constitutionalism does provide a method for deciding whether a Second Amendment opinion is correct, albeit in a way that does not neatly map onto current ideological arrangements.”  In a short essay forthcoming in the Wyoming Law Review, C.D. Michel and Konstadinos Moros argue that “founding-era and 19th century commentary [] emphasizes the importance of the Second Amendment right as a tool to resist tyranny” and that “so-called ‘assault weapon’ bans and similar laws are [thus] incompatible with our historical tradition.”  Finally, Jake Charles (a law professor at Pepperdine and the Center's former executive director) has a new piece forthcoming in the Fordham Urban Law Journal in which he considers how the Supreme Court’s Second Amendment jurisprudence adopts inconsistent, and at times incompatible, temporal framing.  

Darrell A.H. Miller, Common Good Gun Rights, Harv. J. L. & Pub. Pol’y (forthcoming)

Abstract:

Professor Adrian Vermeule's Common Good Constitutionalism aims to invigorate debates in public law that, for many, have become tedious and predictable. His book is unsparing in its hostility to the shibboleths of the left and the right and has invited some pointed rebukes.

But one can appreciate the brio of Vermeule's book, cheer its Mercutian disdain for the left and right, and still be concerned about its substance. Vermeule offers common good constitutionalism as more than a rejoinder to originalism and progressive constitutionalism; it is supposed to supply, in the Dworkinian sense, the "right" answer to legal questions.

Rising to the challenge, I offer a thought experiment to test how common good constitutionalism works as a theory: common good gun rights. Imagining a common good constitutionalist's answers to the welter of unanswered questions in Second Amendment doctrine is a perfect beta test for how well common good constitutionalism can prescribe as much as criticize. I conclude that common good constitutionalism does provide a method for deciding whether a Second Amendment opinion is correct, albeit in a way that does not neatly map onto current ideological arrangements.

The Article proceeds as follows: Part I serves as an introduction. Part II outlines four contentions of common good constitutionalism--its critique of the private-public distinction; its understanding of institutions; its conception of rights; and its belief in law’s inherent normativity--and connects them to some familiar theoretical disputes about law. Part III applies these four aspects of common good constitutionalism, in roughly reverse order, to pending issues of Second Amendment doctrine after New York State Rifle & Pistol Ass'n v. Bruen. Part IV offers some concluding remarks.

C.D. Michel and Konstadinos Moros, Restrictions That ‘Our Ancestors Would Never Have Accepted’: The Historical Case Against Assault Weapon Bans, Wyoming L. Rev. (forthcoming)

Abstract:

The debate around what types of “arms” the Second Amendment protects has been revitalized in the wake of Bruen’s renewed focus on our historical tradition as the determinative factor in Second Amendment cases. Thus far, several district courts have upheld state “assault weapon” bans in part by ruling that the Second Amendment applies only to firearms most useful for self-defense, whereas the firearms covered by such bans are more suited to combat. Thus, these courts conclude, firearms that fall under assault weapon ban laws are not protected "arms" under the Second Amendment.

This is an overly sanitized version of the Second Amendment that our founders, as well as their immediate descendants in the 19th century, would consider unrecognizable. While prior generations of Americans undoubtedly believed self-defense, hunting, and sport were all important components of the right to keep and bear arms, an overriding purpose frequently dominated their discussion of that right: preventing and responding to tyranny.

Today, the idea that the Second Amendment exists in part as a “doomsday provision” to repel a foreign invader or a domestic tyrant is treated as a joke. From the President to legal scholars, many deride it as an insurrectionary notion without any true historical pedigree that was concocted by pro-gun activists in the last half-century.

For its part, the Supreme Court has only tiptoed around this question. In Heller, it did acknowledge that early generations of Americans “understood across the political spectrum that the [Second Amendment] helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.” But in the years since Heller, the Court has been silent on this history, even as Bruen corrected the errant circuit courts by returning the focus to historical tradition.

With more and more states passing restrictions on the very sorts of common firearms that would be most suitable for repelling efforts to overthrow our constitutional republic, a renewed focus on this core purpose of the Second Amendment is overdue. This article aims to bring renewed attention to the overwhelming amount of founding-era and 19th century commentary that emphasizes the importance of the Second Amendment right as a tool to resist tyranny. In light of this clear history, so-called “assault weapon” bans and similar laws are incompatible with our historical tradition and should be struck down.

Part I presents a few modern-era judicial opinions to demonstrate that the idea that the Second Amendment is meant as a last resort against tyranny lives on among some jurists. Part II includes a sampling of 18th-century sources which confirm that the founding generation saw the Second Amendment as a defense against tyranny. Part III focuses on 19th-century commentary, which explains that “arms of modern warfare” are most protected by the Second Amendment. Finally, Part IV briefly looks at how these principles were put into practice by the early civil rights movement in the Jim Crow era.

Jake Charles, Time and Tradition in Second Amendment Law, Ford. Urb. L.J. (forthcoming)

Abstract:

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines?

Only Χρόνος knows.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X.

This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.