The Second Amendment Cascade (?)

Here is a remarkable development. Just twenty-five years ago, there was a strong consensus, among judges and academics, that the Second Amendment did not create an individual right. No federal court had invalidated a restriction on guns on Second Amendment grounds (ever). As recently as 1992, Chief Justice Warren Burger, a conservative Republican appointee, rejected the individual rights view in public.

In a short period, the consensus has shattered. There is a strong possibility that the Supreme Court will accept a view that seemed implausible in the relatively recent past. Here is the question: What has happened?

Consider four possibilities:

1) Truth has finally prevailed. Perhaps new research has shown that the individual rights view is correct. It is true that a large amount of work has been produced in support of that view. Much of it has been funded by private groups with a stake in the issue -- but hardly all of it.

2) Interest groups,  above all the NRA, have spurred the change. Perhaps the new view is a reflection of an aggressive social movement, not unlike the movement to ban segregation and to create a right to same-sex marriage. There can be no doubt that a great deal of time, money, and effort have been expended in an effort, by those with a serious stake, to press the individual rights view on politicians and the federal courts.

3) New judicial appointees have shown new receptivity to arguments that are a) originalist and b) associated with the political right. A key contributor to the shift is undoubtedly the presence, on the federal bench, of a number of Reagan and Bush appointees, who are sympathetic to gun rights in particular, and who also have a jurisprudential interest in originalist arguments.

4) Both politics and law have experienced an informational cascade, produced by savvy "Second Amendment entrepreneurs." Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer -- at least if they trust those others. On this view, the apparently supportive views of "liberal academics" -- including Sanford Levinson, Akhil Amar, Lawrence Tribe -- have been crucial in legitimating the individual rights position.

I tend to think that all of these explanations provide part of the picture, with the (important) qualification that 1)  is probably wrong. (This is not the place to defend the qualification. The original understanding of the text is very complex, as shown by historians Saul Cornell and Jack Rakove among others; and longstanding social practices and many court of appeals have refused to accept the individual rights interpretation. In my view, the individual rights view, at least in its present form, is mostly a product of contemporary concerns and preoccupations.)  Even if is right, it is not an adequate explanation of what has happened.

If we put 2), 3), and 4) together, we will see that the individual rights interpretation has been the beneficiary, above all, of a stunningly successful social movement. In the domain of constitutional law, there has been nothing even vaguely like it in the past quarter-century.

Comments

[recentgrad]

Prof. Sunstein writes: "If we put 2), 3), and 4) together, we will see that the individual rights interpretation has been the beneficiary, above all, of a stunningly successful social movement. In the domain of constitutional law, there has been nothing even vaguely like it in the past quarter-century."
-----

Not even the gay rights movement?

[Will]

Are these causes or effects of a shift in the consensus? For example, Judges are more pro-individual rights because politicians are and politicians are because the electorate is and voters are more pro-individual rights because the expert consensus shifted.

Similarly, it could be that the NRA's message is more salient because the consensus has shifted.

Also, information cascades is a mechanism for the consensus to shift not a cause of a shift. I can't think of any reason why some other consensus wouldn't have "cascaded". And why would this cascade have happened now instead of 50 or 100 years ago? Entrepreneurs generally exploit new opportunities. What's new/different in the recent environment?

(BTW, "recentgrad", I think he's talking about the Federal constitution.)

[Roach]

Look, there was basically no scholarship on the Second Amendment until recently. Decisions like Bass, Miller, and Cases were all the product of "shooting from the hip" by legal realists who were overwhelmingly Northern, in favor of energetic government, and were a product of the same kind of wartime deference to government as decisions like Korematsu. Realists, above all, did not think the words had intrinsic meanings or that the Founders' thoughts mattered very much. It is simply a lunatic view to think that the Second Amendment, unique among the Bill of Rights, enshrined a "collective right" with no concern for an over-reaching state. Why else would something like the Third Amendment be in place if that were the case. The English Bill of Rights had a right to bear arms for all Protestants, for example, and, just to put things in context, we had just finished a war against the British where the armed American citizenry played a vital part.

Like any amendment, the Second should be read in light of the rump Constitution of '87. It allowed government control of the militia that would allow, at least theoretically, the creation of the "select militia" out of the hands of the people and individuals and thus allow, essentially, no right of armed response to deter or resist government over-reach.

[Roach]

Look, there was basically no scholarship on the Second Amendment until recently. Decisions like Bass, Miller, and Cases were all the product of "shooting from the hip" by legal realists who were overwhelmingly Northern, in favor of energetic government, and were a product of the same kind of wartime deference to government as decisions like Korematsu. Realists, above all, did not think the words had intrinsic meanings or that the Founders' thoughts mattered very much. It is simply a lunatic view to think that the Second Amendment, unique among the Bill of Rights, enshrined a "collective right" with no concern for an over-reaching state. Why else would something like the Third Amendment be in place if that were the case. The English Bill of Rights had a right to bear arms for all Protestants, for example, and, just to put things in context, we had just finished a war against the British where the armed American citizenry played a vital part.

Like any amendment, the Second should be read in light of the rump Constitution of '87. It allowed government control of the militia that would allow, at least theoretically, the creation of the "select militia" out of the hands of the people and individuals and thus allow, essentially, no right of armed response to deter or resist government over-reach.

[Roach]

Look, there was basically no scholarship on the Second Amendment until recently. Decisions like Bass, Miller, and Cases were all the product of "shooting from the hip" by legal realists who were overwhelmingly Northern, in favor of energetic government, and were a product of the same kind of wartime deference to government as decisions like Korematsu. Realists, above all, did not think the words had intrinsic meanings or that the Founders' thoughts mattered very much. It is simply a lunatic view to think that the Second Amendment, unique among the Bill of Rights, enshrined a "collective right" with no concern for an over-reaching state. Why else would something like the Third Amendment be in place if that were the case. The English Bill of Rights had a right to bear arms for all Protestants, for example, and, just to put things in context, we had just finished a war against the British where the armed American citizenry played a vital part.

Like any amendment, the Second should be read in light of the rump Constitution of '87. It allowed government control of the militia that would allow, at least theoretically, the creation of the "select militia" out of the hands of the people and individuals and thus allow, essentially, no right of armed response to deter or resist government over-reach.

[Randall]

In United States v. Miller, 307 U.S. 174, the High Court addressed the Second Amendment with respect to its relevance to "a well-regulated militia."

In some states there may be a great number of individuals in a militia, many of whom may not realize it.

In New York State, for example, all able-bodied male residents of the state between the ages of seventeen and forty-five who are not serving in any force of the organized militia are members of the State's "unorganized militia," and there are procedures in place to call those individuals into active [militia] service. It may be that the drafters of the Second Amendment to the Constitution had the "unorganized militia" in mind with respect to the import of the Second Amendment.

Accordingly, the court's 1939 decision may have had greater impact on an individual's "right to bear arms" than one may realize.

=============

Section 2 of the New York State Military Law, in relevant part, provides:

§ 2. Militia of the state; division and composition. 1. The militia of the state shall be divided into the organized militia, the state reserve list, the state retired list and the unorganized militia. The organized militia shall be composed of the New York army national guard; the New York air national guard; the inactive national guard; the New York naval militia; the New York guard whenever such a state force shall be duly organized and such additional forces as may be created by the governor.

2. The unorganized militia shall consist of all able-bodied male residents of the state between the ages of seventeen and forty-five who are not serving in any force of the organized militia or who are not on the state reserve list or the state retired list and who are or who have declared their intention to become citizens of the United States, subject, however, to such exemptions from military duty as are created by the laws of the United States.

[Roach]

To me Miller is not that complicated. The defendant, an individual, had standing to raise the militia issue, and the Court essentially adopted a test that asked: Hey, is this an ordinary militia (i.e., light infantry/police) weapon? In that case, they remanded because a "Sawed Off Shotgun" was involved. But things like "assault rifles" clearly should be included, as should pistols and pretty much anything that is standard issue and a non-crew-served weapon. So, M249s and M16s yes, howitzers and B-52s no.

[Mike H]

Add 2 more possibilities to your list:

5) The internet, especially the ease that ordinary persons now have in gathering original source information w/o the filter of "academics".

6) The other arguments sank by weight of the evidence against them.

Those of us who followed the issue in the 1990s will remember the States Rights argument in which the second amendment was supposed to have been aimed only at maintaining the balance of Federal vs. State power, and had nothing to do with the people. The plain text of the amendment, Federalist 46(especially the first paragraph), and the many rkba provisions found in the early state constitutions demonstrate the weakness of that claim.

The sophisticated Collective Rights argument (Silveira and others) tried to patch up the gaping holes in the States Right theory, but it is at odds with the text because "to keep and bear arms" refers to the action of individuals, while Silveira claims that the right protected is an exclusively collective right. That is somewhat akin to claiming that a right to change light bulbs could most plausibly be interpreted and an exclusively collective right

What is shaping up to be last stand of the deniers of the Standard Model is sometimes referred to as the Limited Individual Rights model - a version of which is being promoted by Saul Cornell. This theory at least admits that the right to keep and bear arms refers to individuals, but it goes on to say the rkba belongs only those individuals who are in the militia. However this claim is also at odds with the plain text of the second amendment as there is no qualifier in the amendment that would act to limit the right only to the people enrolled in the militia.

Furthermore the States Rights, Collective Rights, and Limited Individual Rights models are at odds with the earliest court cases (Bliss, Nunn, Aymette, etc.) which although they varied greatly in the scope of the right, all found the right to keep and bear arms to be an individual right -meaning a right belonging to individuals, and not merely those individuals enrolled in the militia.