Academic journal article Texas Law Review

The Supreme Court's New Battlefield

Academic journal article Texas Law Review

The Supreme Court's New Battlefield

Article excerpt

The Supreme Court's New Battlefield GUNFIGHT: THE BATTLE OVER THE RIGHT TO BEAR ARMS IN AMERICA. By Adam Winkler. New York, New York: W.W. Norton & Co., 2011. 361 pages. $27.95.

I. Introduction

In 2008, one of the three libertarian lawyers who fought District of Columbia v. Heller1 all the way to the Supreme Court victoriously proclaimed, "The Second Amendment [i]s [b]ack, [b]aby[!]"2 But where was it for the first two centuries of our Republic? Adam Winkler's Gunfight tells the story of the battle over the right to bear arms in America.3

The flow of Gunfight, which reads more like a page-turning novel than an academic work, can best be described as a finely designed tapestry- several intricately woven threads cross and intersect throughout the chapters to form a rich, full discourse of the story of gun rights and gun control in America. The first thread tells the captivating story of District of Columbia v. Heller, the landmark case where the Supreme Court recognized an individual right to keep and bear arms.4 This history, recreated through personal interviews with all of the key actors, is developed in each chapter in small transitional bites, providing a gripping narrative of the progress of the case from inception to decision.

The second thread introduces the genesis of the modern-day gun control movement, pejoratively labeled by Winkler as the "gun grabbers," who aspire for complete civilian disarmament.5 The third thread explores the evolution of the so-called "gun nuts," who instinctively oppose any limitation on the right to keep and bear arms, no matter how reasonable or sensible.6 The extreme gun grabbers and gun nuts have declared the Second Amendment as the Supreme Court's new battlefield: a sharp culture war divided along firmly entrenched ideological fronts, with no choice of a middle ground. But as Winkler's balanced, important, and timely work shows, this has not always been the case in America.

The fourth thread-and really the vein that circulates Winkler's thesis throughout the work-is the relationship between gun rights and gun control in the American tradition. This balance has ebbed and flowed along with numerous social movements in our nation's history: from Revolution,7 to Reconstruction,8 to the Frontier,9 to Prohibition,10 to the Civil Rights Era,11 to the present.12 Protection of the right to keep and bear arms, or the infringement thereof, has been closely linked with issues of race and equality-socially disfavored or insular groups have often been the first to be disarmed.

Though a fifth thread that threatens to unravel the entire tapestry is loose-what is the relevance of this history to the development of modern Second Amendment jurisprudence?-the Supreme Court, and not Winkler, is to blame for this shortfall. Heller has set forth an uneasy temporal relationship between the original understanding of the Second Amendment-that is, how the right would have been understood at the time of its ratification in 1791-and the role that the two centuries of cultural and legal development that Winkler chronicles should play in the constitutionality of gun control laws. Winkler does not fully connect this history with the future, short of making the lamentable, though largely anachronistic, argument that "[a]s the history of the right to bear arms and gun control shows, there is a middle ground in which gun rights and laws providing for public safety from gun violence can coexist."13

Winkler's magisterial work is by far the fairest and most well-balanced book I have read about gun control in America. Winkler, better than any scholar today, can peel back the veneer of the heated rhetoric and drill to the core of what this issue is about-keeping society safe and minimizing harm from guns, while at the same time protecting the right of people to defend themselves.14 With its appeal to both academic and popular audiences, Gunfight will bring some much-needed clarity to the fog of the Supreme Court's new battlefield. …

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