In their new book, The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Cambridge University Press, 2018), constitutional law scholars Joseph Blocher and Darrell Miller offer the first comprehensive account of the history, theory, and law of the right to keep and bear arms in the aftermath of District of Columbia v. Heller.
The Supreme Court’s 2008 ruling that the Second Amendment protects a private, personal right to own guns opened a whole new avenue for Second Amendment research, which had previously been almost solely focused on defining its scope, said Miller, the Melvin G. Shimm Professor of Law. “The real question now is how to think through the post-Heller world and apply the Second Amendment as law. The private purposes theory was not constitutional law before 2008; no federal court struck down a law based on a private purposes theory before then, and our book is an attempt to wrestle with what it means now that we understand the amendment as constitutional law in that sense.”
Added Blocher, the Lanty L. Smith ’67 Professor of Law: “We are trying to build and share a tool kit to answer the myriad Second Amendment questions that are still on the table.”
Blocher and Miller spoke to Duke Law Magazine about their book.
Duke Law Magazine: Define the word “positive” in the context of your title and approach to the topic.
Darrell Miller: It’s a way of understanding a positive viewpoint of the Second Amendment — a statement that there is a place in the constitutional order both for gun rights and gun regulations. It’s not the kind of boogieman that persons on the left sometimes treat it as, but by the same token, it’s not an all-powerful champion that lays waste to all regulations in the way that some gun rights supporters mean.
The other connotation, which is more for the lawyers in the audience, is positive in the sense of — not natural law, not God-given law — but positive law in the sense that it’s a law that is tractable, it’s earthly, it can be understood. You can make constitutional claims that can be disproved using the tools of legal argument.
Joseph Blocher: It’s also positive in the sense that there’s something hopeful about the book’s message and approach. As we see it, the Second Amendment and constitutional law are with the solid majority of Americans who believe both in the individual right to keep and bear arms and in reasonable gun regulation. And we want them to understand that, despite all the screeching from the extremes, actually there is something sort of positive about where the actual law is. The political debate pushes people to the edges; it’s very polarizing. But the Constitution is where most Americans are.
DLM: You start the book with a frank account of the Sandy Hook shooting, and end it with the Pulse nightclub massacre in Orlando. How did you balance the need to avoid the extremes of the ongoing debate with a need to be honest about the stakes?
JB: It was hard. At the same time that we want to be positive, we want to be unblinking. There are immense numbers of examples of firearm misuse and 100,000 Americans who are shot every year. It’s a serious challenge for public health and policy, but it’s not our main challenge in this book, which is to give a constitutional account.
DM: The choice of bookending this project with two terrible massacres is to try to talk about the way in which the normal pathways in which people sort into their respective, reflexive camps about gun violence really is not the way that the Second Amendment works. In fact, an understanding of the Second Amendment as law could help people recognize that it doesn’t cause Sandy Hook and it doesn’t stop people who might want to prevent another Sandy Hook. It’s not the Constitution that is the problem, it’s the nature of the political discourse.
DLM: You talk about developing, and educating people in, a legal language with which we can discuss these issues.
JB: We’re trying to describe what we call in the book, and what others have described in other contexts, as a constitutional grammar. These are the moves that are legitimate when you are arguing in constitutional terms. And I think that has the benefit of disciplining the conversation and taking off the table some of the most emotive arguments. Hopefully that common language allows better engagement.
DM: Our ambition is that, when somebody reacts to something like Sandy Hook or guns in schools or some piece of gun legislation and says, ‘The Constitution forbids that,’ or ‘The Constitution allows that,’ that it can mean something other than, ‘That’s how I wish it was.’ The idea of educating people in a grammar used in other constitutional domains that are perhaps less fraught, can make those kind of statements about the Second Amendment coherent and we can have a conversation about them.
DLM: How did writing the book advance your ideas for future scholarship?
JB: We learned that there are certain issue areas that intersect with firearms law that would benefit from a lot more and deeper scholarship going forward, such as the intersection of gender and guns and the intersection of race and guns.
You hear people make arguments based in realities of race and police enforcement saying, for example, enforcement of gun laws is likely to disproportionately burden young black men. We see that with stop-and-frisk policies. But young black men are also overwhelmingly disproportionately the victims of gun violence, so it is complicated.
DM: That is a trend line that goes back to Reconstruction. Many people, especially on the gun rights side, point to racially denominated restrictions on guns in history and say, ‘See, all gun regulation is bad!’ But I think there is an argument that hopefully comes out in our book that says, ‘Sure, that is bad, but the lack of gun regulation has not been the friend of African Americans either.’ When you’re saying that we’ll just let people make their own decisions about who to police and under what circumstances, that can be a form of oppression too. You have to look at what you’re regulating, but also what you’re not regulating.
DLM: Why did you employ a historical narrative for exploring this aspect of constitutional law? You include terribly grim moments, such as the mass shootings or the assassination of Dr. Martin Luther King, Jr., as well as colorful ones, like that of Gen. Daniel Sickles, who was acquitted for killing his wife’s lover in a duel by using the first successful temporary insanity defense in U.S. history.
JB: The book begins in England in the 1300s, and ends by looking to the future. The narrative helps to illuminate the debate leading up to Heller, the Heller decision and its aftermath, and what Heller means going forward. It’s very easy with this issue to get lost the way that the public debate does, and end up lobbing abstract principles back and forth with no sense of their context. We wanted to introduce people to the story, whether it’s in the historical portions or the people involved in the legal cases.
DM: Part of it is driven by what I think Joseph and I share, which is an idea that the law isn’t an abstraction. The choice about whether you make a regulation has real impacts. If you don’t regulate certain types of high-capacity magazines, you risk [Sandy Hook shooter] Adam Lanza. If you do regulate certain types of non-lethal weapons like stun guns, you impact somebody like [Jaime] Caetano. [Caetano was prosecuted under Massachusetts’ ban on stun guns after using one to defend herself against an ex-boyfriend who had assaulted her multiple times.] Having the stories and having actual people and their lived experiences of the intersection of gun and law makes people understand the stakes.
DLM: Why is it so important, right now, to develop serious post-Heller scholarship on the Second Amendment, and what role might this book play?
JB: I think one thing that we can do as scholars is give people the tools they need to engage with one another. One thing that is frustrating about the gun debate is the feeling that people are just talking past each other a lot. When both sides are forced to be in dialogue, sometimes in the context of proposed legislation or a legal case, they can actually talk to one another using common languages like text and history and doctrine. Anything we can do to contribute to that is good.
We also hope to dispel some common myths and misunderstandings about the Second Amendment being absolute and about the novelty of gun regulation. Those tend to cloud the debate and make it more polarized than it needs to be. Our goal isn’t to make everyone agree, but the debate could be healthier.
DM: I think that the importance of encouraging scholarship is that once people are conversant with the tools of legal analysis they can create lines and boundaries, and ask, ‘You say this is a right, what are its boundaries?’ Then our hope is that by marking out the legal space, you can see if there is room to have policy-based conversations, and see what the ground rules are for those conversations. We know that, post-Heller, a conversation that starts with taking away all the guns is a legal non-starter. But what about other proposals? We’re hoping that, within the legal space this book develops, other people with other skills — the criminologists, the technologists, the policy makers — can then say, ‘Ah, I understand now that this is a right subject to these kinds of regulations for these kinds of reasons, and that helps my understanding of how the various elements fit into the constellation of legal and policy issues surrounding guns.’