Academic journal article Boston University Law Review

Gun Rights Talk

Academic journal article Boston University Law Review

Gun Rights Talk

Article excerpt


The Second Amendment plays a massive - some would say outsized - role in our often-dysfunctional national gun debate.1 It serves as a banner for gun- rights supporters, a common enemy for gun-control advocates, and a consistent headache for scholars, lawyers, and judges. But the full force of the Amendment's influence over the scope and extent of gun control cannot be found in casebooks. Even after the Supreme Court's decision in District of Columbia v. Heller,2 relatively few gun laws - all of them unusually stringent - have been struck down on Second Amendment grounds.3

The Amendment has, however, been an enormously effective tool for keeping those gun laws from taking root in the first place. Indeed, the Second Amendment's underwhelming impact in litigation is largely reflective of its own success: because invocations of the Amendment have been so politically powerful, there is simply not as much left for it to do, legally speaking, as some might suppose.4 This makes it somewhat difficult to argue that constitutional "dysfunction" itself has blocked the kind of regulations that many gun-control supporters want. After all, most Americans support the "individual" right to keep and bear arms recognized in District of Columbia v. Heller,5 and very few support confiscatory gun control or outright gun bans.6

Nevertheless, "gun rights talk" does have drawbacks that contribute to political dysfunction. This does not necessarily make it unique as far as constitutional rhetoric goes. In fact, the basic character of gun rights talk is familiar to critics of rights talk more generally7: "[I]ts starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with regard to personal, civic, and collective responsibilities."8 If anything, the extreme forms of gun rights talk simply provided an especially powerful illustration of the standard rights talk critique.

The traditional remedy prescribed for overuse of rights talk is to minimize exposure, thereby giving more rhetorical space to underlying - and presumably more soluble - political disagreements.9 Excavating the gun debate from the constitutional rubble indeed might be a step in the right direction, as it could enable a more direct discussion of the proper role of gun rights and gun control in the United States, free from misunderstandings and misinterpretations of constitutional doctrine.10 But it would not necessarily cure the disease, as gun rights talk is also a symptom, not simply a cause, of the dysfunction. The deeper one digs, the more it becomes evident that gun rights talk is not just about rights, has even less to do with the Constitution, and may not even be about guns. It is, at root, a debate about culture and values.11 Clearing away the rights talk might only uncover a culture war, not a political debate. And resolving that cultural dispute will require a kind of public discourse that has thus far proven elusive.

The charge of this Symposium is to focus on the constitutional connections, causes, and cures of America's political dysfunction. As a legal matter, the Second Amendment is not necessarily the villain that advocates of gun control sometimes suspect it to be.12 Existing doctrine permits reasonable gun control. The dysfunction, inasmuch as it exists, is not a result of gun rights, but of gun rights talk, and on a deeper level a cultural conflict that lacks a vocabulary for political engagement. Solving that problem will require remedies that lie outside the law, and yet - perhaps counterintuitively - the Second Amendment might still have a useful role to play in facilitating discourse.


As a doctrinal matter, the story of the modern Second Amendment begins with District of Columbia v. Heller, which held that the Amendment protects an "individual" right to bear arms for self-defense, and that a citywide ban on handguns in the District of Columbia was an unconstitutional infringement of that right. …

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