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The New Normal: The Second Amendment After Heller and McDonald

Following Monday's McDonald decision, gun ownership by law-abiding citizens is the new normal, and the Second Amendment is now normal constitutional law.

by
Glenn Harlan Reynolds

Bio

June 29, 2010 - 12:00 am

I’ve been interested in the Second Amendment for a long time, but for a long time, it wasn’t really part of the Constitution.

Oh, I mean it was part of the Constitution — right there between the First Amendment on one side, and the Third Amendment (the only part of the Bill of Rights that really works — when did you last hear of troops being quartered in someone’s house?) on the other. But in “mainstream” constitutional discourse, it just didn’t exist.

Courts routinely rejected Second Amendment claims, frequently with atrocious misstatements of what little caselaw existed, and usually with almost no discussion. Popular discussion was, if anything, even more dismissive. Former Chief Justice Warren Burger said that the notion that the Second Amendment protected individual rights was a fraud, and that it only protected “state armies.” (And wouldn’t that have been interesting if it had turned out to be true. …) The general position taken by most mainstream media types, and most academics, was that the Second Amendment didn’t protect individuals, only the right of states to have a national guard, a right that was obsolete anyway. It had nothing to do with individuals owning guns.

There wasn’t actually much support for this “collective right” position, in terms of scholarship or caselaw — the 1939 case of United States v. Miller, often cited for that position, doesn’t actually say that, but for many years, unanimity substituted for understanding, and ridicule substituted for research. (Burger’s “state armies” claim appeared not in a law review, but in Parade magazine.) That began to change with Don Kates’ article, “Handgun Prohibition and the Original Meaning of the Second Amendment,” in the Michigan Law Review, and really picked up after the publication of Sandy Levinson’s “The Embarrassing Second Amendment” in the Yale Law Journal. Soon, scholarship accumulated, and it was possible even to speak of a ”Standard Model” of the Second Amendment, in which the linguistic, structural, and historical elements came together to explain, in a widely accepted way, why the Second Amendment did, in fact, protect an individual right to own guns.

Opponents continued to criticize this view and to characterize its proponents as shills for the NRA, but it was a rearguard action — especially as polls continued to show, despite contrary media efforts, that around three quarters of Americans believed the Second Amendment gave them a right to own a gun, and that legal efforts to limit gun ownership were unconstitutional.

Despite some concerns by gun-rights folks that it was too soon, gun-rights activists went on the offensive, successfully challenging the District of Columbia’s draconian gun-ban ordinance in the case of District of Columbia v. Heller. Because the District is a federal enclave, not a state, the case turned purely on whether the Second Amendment protects a right to own a gun. The Supreme Court said it did — and, tellingly, even among the dissenters, not a single justice endorsed the “collective right” position that had been conventional wisdom among the media and talking heads for decades.

But because the District of Columbia isn’t a state, it remained unclear whether this decision would affect state and local gun-control laws — which is most of them — as opposed to purely federal laws. The Supreme Court has long held that the Bill of Rights doesn’t apply directly to the states. However, through a doctrine called “incorporation,” it has been applied, piecemeal, to the states via the Fourteenth Amendment’s Due Process Clause. Many legal academics (including me) have criticized this approach as unprincipled and sloppy, and suggested that the Framers of the Fourteenth Amendment meant for the entire Bill of Rights, at least, to apply to the states under the Fourteenth Amendment’s Privileges or Immunities Clause instead.

That’s what Alan Gura argued before the Supreme Court in McDonald vs. Chicago, and only one justice — Clarence Thomas — agreed. But if nothing else, this may have made the notion of traditional incorporation of the Second Amendment look less radical (a case of the ”Overton Window” in action, perhaps) and in the end Gura got five justices to agree on incorporation.

So the end result is that the Second Amendment now applies to the states, like the First, or the Fourth, or the Fifth. In other words, it’s now normal constitutional law.

For gun rights activists, that has both upsides and downsides. On the one hand, it means that some gun-control laws, at least, will now be found unconstitutional. Most of the work of doing this will be done by lower courts, which have traditionally been pretty dismissive of Second Amendment rights, but there’s some sign that lower courts are taking things more seriously since Heller, and this case is likely to reinforce things considerably. Chicago’s existing anti-gun ordinance is very likely to be struck down now, as it is virtually the same as the D.C. gun ban struck down in Heller. Other highly restrictive laws are also likely to fall.

On the other hand, if gun-rights activists sit back and expect the courts to do their work for them now, they will be sadly disappointed. If pressed with further cases (which Gura says he plans to bring), the courts will do some good. But the primary protection for gun rights up to now, and for all constitutional rights, really, is political. Judicial review was intended by the Framers to be a backup system, not the main source of protection. That was intended to come from the people — and realistically, because if people don’t stand up for their own rights, courts are unlikely to take up the slack for long. (Especially when, as here, the protection comes in a 5-4 decision).

Nonetheless, the Supreme Court’s Second Amendment decisions have made a major difference. In particular, they have offset the gun-control community’s longstanding effort to “denormalize” firearms ownership — to portray it as something threatening, deviant, and vaguely perverse, and hence demanding strict regulation, if not outright prohibition. That effort went on for decades, and received much media support. Two decades ago, it seemed to be working.

But with the Supreme Court saying that it’s clear the Framers regarded individual gun ownership as “necessary to our system of ordered liberty,” that effort must be seen as a failure now. Gun ownership by law-abiding citizens is the new normal, and the Second Amendment is now normal constitutional law. It will stay so, as long as enough Americans care to keep it that way.

Glenn Reynolds is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee, and blogs at Instapundit.
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